The New York Times Company v.

13-422-cv (L)
The New York Times Company v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
Submitted: June 5, 2014 Decided: August 11, 2014
Docket Nos. 13-422(L), 13-445(Con)
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THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,
SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED
STATES DEPARTMENT OF DEFENSE, CENTRAL
INTELLIGENCE AGENCY,
Defendants-Appellees.
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Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
Supplemental opinion on petition for rehearing. 1
With respect to the supplemental request for additional 2
redactions from the required disclosure of titles and/or 3
descriptions of some items listed in the Vaughn index, request 4
granted in part and denied in part; petition for panel 5
rehearing again denied. 6
Sharon Swingle, Atty., Appellate 7
Staff, Civil Division, U.S. 8
Dept. of Justice, Washington, 9
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D.C.; Preet Bharara, U.S. 1
Atty., Sarah S. Normand, Asst. 2
U.S. Atty., New York, N.Y., 3
Stuart F. Delery, Asst. U.S. 4
Atty. General, Beth S. 5
Brinkman, Deputy Asst. U.S. 6
Atty. General, Douglas N. 7
Letter, and Matthew M. 8
Collette, Attys., Appellate 9
Staff, Civil Division, U.S. 10
Dept. of Justice, Washington, 11
D.C., on the petition, for 12
Defendants-Appellees. 13
14
No opposition papers requested. 15
16
17
18
JON O. NEWMAN, Circuit Judge: 19
After we ruled on the Government’s motion for panel 20
rehearing in this needlessly protracted FOIA litigation (the 21
Plaintiffs’ FOIA requests were made four years ago), the 22
Government moved for leave to file ex parte and in camera two 23
submissions (“July 28 submissions”) in support of its petition 24
for rehearing in banc. See Motion to Submit Ex Parte 25
Classified and Privileged Supplemental Declarations in Support 26
of Petition for Rehearing En Banc, filed July 23, 2014 27
(hereinafter “July 23 Motion”). On July 25, 2014, Chief Judge 28
Katzmann, treating the request as a one-judge procedural 29
motion, granted the motion, and the two new submissions were 30
filed ex parte and in camera on July 28, 2014. Because it is 31
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the practice of this Court, prior to the convening of an in 1
banc court, to have all in banc submissions initially 2
considered by the relevant panel prior to circulation to the 3
active judges of the Court, the July 28 submissions have been 4
made available to the panel, which has elected to treat them 5
as a tardy supplemental request in support of the Government’s 6
June 5, 2014, petition for panel rehearing. Following the 7
filing of this supplemental opinion on the petition for panel 8
rehearing, the July 28 submissions and this opinion will be 9
circulated to the active judges (they have already received 10
the Government’s petition for rehearing in banc and this 11
panel’s prior opinions). 12
Background 13
Assessment of the requests in the July 28 submissions for 14
further redactions from the Vaughn index in addition to those 15
authorized by the panel’s July 10, 2014, opinion, which 16
denied, with several exceptions, rehearing on the bifurcated 17
Vaughn index issues, requires a brief summary of the pertinent 18
steps taken in this Court. 19
On April 15, 2013, The New York Times plaintiffs, in 20
their opening appellate brief, specifically included in their 21
request for relief that we should “direct DOJ to provide a 22
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Vaughn index as to any additional documents [beyond the OLC- 1
DOD Memorandum] that were subject to the Glomar responses,” 2
Br. for NYTimes at 51 (emphasis added), a request repeated in 3
the June 28, 2013, reply brief at 24. Indeed, in its June 5, 4
2014, petition for rehearing, the Government acknowledged that 5
the Plaintiffs had “argued that the government should prepare 6
and produce a public Vaughn index.” Pet. for Reh’g at 12 7
(emphasis added). Thus, more than a year ago, the Plaintiffs 8
made it clear that they wanted a Vaughn index from DOJ. 1 The 9
Government’s claim that the panel ordered release of a Vaughn 10
index “sua sponte,” see July 23 Motion at 1, is incorrect. 11
On June 14, 2013, the Government in its brief referred in 12
a footnote to “the Vaughn index submitted by the Office of 13
Legal Counsel as an attachment to a responsive e-mail.” Br. 14
for Appellees at 25 n.8. The brief defended the Government’s 15
use of DOJ’s no number, no list response (rather than a Vaughn 16
index). 17
On February 10, 2014, after oral argument, the panel 18
provided to the Government ex parte and in camera its proposed 19
opinion “to afford an opportunity to advise whether any 20
1 Although the Plaintiffs did not request the specific
Vaughn index that OLC had prepared, of which the Plaintiffs
were unaware, their request for a Vaughn index was clear.
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classified information, not intended to be disclosed by this 1
opinion, has been inadvertently disclosed.” See The New York 2
Times Co. v. U.S. Dep’t of Justice, 752 F.3d 123, 144 n.23 (2d 3
Cir. 2014). That proposed opinion required disclosure of 4
OLC’s Vaughn index, but redacted a number of listings. See id. 5
at 143-44. 6
On March 13, 2014, the Government responded to that 7
opportunity by submitting a motion ex parte and in camera, 8
which requested redaction of just four listings in the Vaughn 9
index (nos. 252-54, 268), three of which we had already 10
indicated would be redacted. 11
On March 17, 2014, we provided the Government ex parte 12
and in camera a revised version of the panel’s proposed 13
opinion, which still required disclosure of OLC’s Vaughn 14
index, subject to the four additional redactions. 15
On March 28, 2014, the Government responded ex parte and 16
in camera with a request that certain portions of the revised 17
proposed opinion quoting public statements of senior officials 18
either be redacted or moved to a different location in the 19
opinion in order to preserve the Government’s opportunity for 20
further appellate review. This response to the revised 21
proposed opinion made no request to redact any additional 22
listings in the Vaughn index. 23
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On April 21, 2014, the panel filed public and sealed 1
versions of its opinion. See The New York Times Co. v. U.S. 2
Dep’t of Justice, 752 F.3d 123 (2d Cir. 2014) (public 3
version). The statements identified in the Government’s March 4
28, 2014, submission were transferred from the public version 5
to the sealed version. 6
On May 28, 2014, we filed an order that, among other 7
things, reiterated the first three redactions from the Vaughn 8
index that were sought in the Government’s March 13, 2014, 9
submission, and agreed to the fourth one. See The New York 10
Times Co. v. U.S. Dep’t of Justice, Order at 5 (May 28, 2014). 11
No other redactions had been requested in the Government’s 12
March 13, 2014, submission. 13
On June 5, 2014, the Government filed its petition for 14
panel and in banc rehearing. The petition identified three 15
groups of listings in the OLC’s Vaughn index that it contended 16
should be redacted and asserted that “other” listings, not 17
identified by number, should also be redacted. See Petition at 18
14. 19
On June 9, 2014, the Court submitted to the Government ex 20
parte and in camera a proposed panel opinion on the petition 21
for rehearing, and on June 10, 2014, the panel issued an order 22
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that (1) noted that the proposed opinion would bifurcate the 1
Vaughn index issues for later adjudication, and (2) directed 2
the Government to notify the Court by June 20, 2014, of any 3
objection “set forth with specificity” to the filing of the 4
proposed opinion. See The New York Times Co. v. U.S. Dep’t of 5
Justice, Order at 2 (June 10, 2010). On June 20, 2014, the 6
Government submitted ex parte and in camera a response to the 7
Court’s June 10, 2014, order. That response requested 8
redactions from the OLC-DOD Memorandum, which were 9
subsequently made. 10
On June 23, 2014, the panel filed an opinion partially 11
denying rehearing. See The New York Times Co. v. U.S. Dep’t 12
of Justice, 2014 WL 2854878 (June 23, 2014). That opinion 13
bifurcated the Vaughn index issues, made all of the 14
additionally requested redactions from the OLC-DOD Memorandum, 15
and deferred adjudication of the Vaughn index issues. See id. 16
at *1-*2. On June 23, 2014, the panel also filed a revised 17
version of its April 21, 2014, opinion. See The New York Times 18
Co. v. U.S. Dep’t of Justice, 2014 WL 2838861 (2d Cir. June 19
23, 2014). 20
On July 10, 2014, the panel filed an opinion adjudicating 21
the Vaughn index issues and denying the petition for 22
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rehearing, with the exception that the panel further revised 1
its June 23, 2014, opinion to redact many of the titles and 2
descriptions for which the Government had sought exemption in 3
its petition for rehearing. See The New York Times Co. v. U.S. 4
Dep’t of Justice, 2014 WL 3396075 (July 10, 2014). 5
This was the state of affairs when on July 25, 2014, the 6
Government filed the July 23 Motion, seeking leave to file the 7
July 28 submissions. Those submissions requested that eleven 8
listings in the Vaughn index (nos. 7, 8, 75, 113, 12-22, 132, 9
136, 138, and 139), for which redaction had not previously 10
been sought, be redacted; sought redaction of one listing (no. 11
108), which had not been ordered disclosed; and renewed the 12
Government’s request to redact 26 listings (nos. 58-61, 63-65, 13
71, 73, 74, 76, 77, 83, 89-91, 95, 96, 98, 99, 102, 108, and 14
129), which we had not redacted. The submissions included two 15
affidavits from senior officials supporting the new and 16
renewed claims. In the July 23 Motion, the Government 17
contended that the Court had not “provide[] the government the 18
opportunity to redact classified or privileged entries” from 19
the Vaughn index, see July 23 Motion at 3, a somewhat 20
surprising claim in view of the Government’s opportunity to 21
see, prior to filing, the Court’s original proposed opinion 22
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and the revised proposed opinion, both of which ordered 1
partial disclosure of Vaughn index titles and descriptions. 2
Discussion 3
Before considering the specific new and renewed requests, 4
we encounter the Government’s general contention that the 5
OLC’s Vaughn index was of a type never intended to be made 6
public. The Government advances the new argument that there 7
are two types of Vaughn indices. The July 28 submissions 8
distinguish the Vaughn index submitted in this case, which was 9
classified, from a Vaughn index that the Government says it 10
would have prepared for disclosure. The former, the 11
Government asserts, “was prepared with a view toward providing 12
the district court with a robust understanding of the nature 13
and range of issues implicated by the pending FOIA matter 14
before it. . . .” Affidavit of John E. Bies, Deputy Asst. 15
Atty. Gen., OLC, at 2, ¶ 2. The latter would “appropriately 16
protect[] privileged attorney-client communications and 17
Executive Branch deliberations in describing withheld 18
records.” Id. at 3, ¶ 5. 19
Although we appreciate the Government’s objective of 20
giving the District Court “a robust understanding” of the 21
issues, we would expect such a presentation to be made in 22
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supporting briefs and affidavits. With respect to so-called 1
“classical” Vaughn indices, see Keys v. U.S. Dep’t of Justice, 2
830 F.2d 337, 349 (D.C. Cir. 1987), which simply list titles 3
and descriptions of withheld documents, we have located no 4
FOIA decision mentioning two types of such indices – one to 5
assist a district court and another for public release – and 6
the Government has called none to our attention. We will 7
therefore continue, as we have thus far, to base our 8
disclosure rulings on the Vaughn index that OLC has already 9
prepared, with such redactions as may be appropriate. See 10
Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. 11
Cir. 1979) (noting that some items in a Vaughn index are 12
appropriately withheld from disclosure). 13
Furthermore, we emphasize that we are ordering disclosure 14
only of the titles and descriptions of the several documents 15
we identify by number. 2 The purpose of a Vaughn index is to 16
afford a FOIA plaintiff an opportunity to decide which of the 17
listed documents it wants and to determine whether it believes 18
it has a basis to defeat the Government’s claim of a FOIA 19
exemption. See Keys, 830 F.2d at 349. Titles and descriptions 20
2 The titles and description must, of course, be keyed to
the number of the listing, together with the one or more FOIA
exemptions asserted by the Government.
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serve that purpose. Thus, the Government’s current request to 1
redact the names of the sender and/or recipient of some of the 2
listed documents (nos. 75, 113, 116, and 136) as identified in 3
the “To” and “From” columns of the Vaughn index is moot; no 4
disclosures of the names of persons have been required. No 5
disclosures of any entries in the “Date(s),” “To,” or “From” 6
columns have been required. 7
Coming at last to the Government’s specific requests for 8
redaction, in light of the new submissions, we will make the 9
following additional redactions: in listings 7, 95, 116, and 10
117, the identity of the sending agency may be redacted from 11
the descriptions of these four listings; in listings 8, 58, 12
59, 60, 61, 62, 63, 64, 65, 71, 73, 76, 77, 83, 89-91, 95, 96, 13
98, 99, 102, 117, 120, 123, and 132, the titles, but not the 14
descriptions, may be redacted. The descriptions of these 15
listings reveal no information at all. We deny the requests 16
to redact the titles and descriptions of listings 74, 129, 17
136, 138, and 139, which either reveal no information or are 18
blank. 3
19
To recapitulate, as a result of the new redactions set 20
forth in this opinion, we require disclosure only of 21
3 By “blank” we do not mean redacted; the entry under the
“Title/Subject” column is blank.
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(1) the titles and descriptions of listings 5, 7 (except 1
for the identity of the sending agency in the description), 9, 2
50, 74, 75, 110, 113, 116 (except for the identity of the 3
sending agency in the description), 117 (except for the 4
identity of the sending agency in the title and description), 5
121, 122, 129, 131, 133-243, 269, and 270, and 6
(2) the descriptions of listings 57, 58-61, 62, 63, 64, 7
65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83, 8
87, 88, 89-91, 92, 93, 95 (except for the identity of the 9
sending agency in the description), 96, 97, 98, 99, 100, 102, 10
103, 104, 118, 120, 123-28, 130, and 132. 4 We require no 11
disclosure of the date or the name of any person or agency 12
that sent or received a listed document. Finally, as we have 13
repeatedly pointed out, we require no disclosure of the 14
content of any listed document. 15
Supplemental request for additional redactions from the 16
Vaughn index granted in part and denied in part; petition for 17
panel rehearing again denied. 18
4 To whatever extent the summary of required disclosures
in this opinion is inconsistent with the summary in our July
10, 2014, opinion, see The New York Times Co. v. U.S. Dep’t of
Justice, 2014 WL 3396075 (2d Cir. July 10, 2014) *4 n.12, the
summary in this opinion will govern.
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