N.Y. Times Co. v. U.S. Dep't of Justice

• Decision Date: 25 August 2014
• Docket Number: Docket Nos. 13–422 (L), 13–445(CON).
• Citation: N.Y. Times Co. v. U.S. Dep't of Justice, 756 F.3d 100 (2nd Cir. 2014)
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

756 F.3d 100

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.

Docket Nos. 13–422 (L), 13–445(CON).

United States Court of Appeals, Second Circuit.

Submitted: Oct. 1, 2013.

Decided: June 23, 2014.

Revised: Aug. 25, 2014.

David E. McCraw, The New York Times Company, New York, NY (Stephen N. Gikow, New York, NY, on the brief), for Plaintiffs–AppellantsThe New York Times Company, Charlie Savage, and Scott Shane.

Jameel Jaffer, American Civil Liberties Union Foundation, New York, NY (Hina Shamsi, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, NY, Joshua Colangelo–Bryan, Dorsey & Whitney LLP, New York, NY, Eric Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, M.N., on the brief), for Plaintiffs–Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.

Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, NY, Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants–Appellees.

(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs–Appellants.).

(Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs–Appellants.).

Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act(“FOIA”) presents important issues arising at the intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security.The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft.Plaintiffs–AppellantsThe New York Times Company and New York Times reporters Charlie Savage and Scott Shane(sometimes collectively “N.Y. Times”), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively “ACLU”) appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York(Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits.SeeNew York Times Co. v. U.S. Dep't of Justice(“ Dist. Ct. Op.”), 915 F.Supp.2d 508(S.D.N.Y.2013).The suits were brought against the Defendants–Appellees United States Department of Justice(“DOJ”), the United States Department of Defense(“DOD”), and the Central Intelligence Agency(“CIA”)(sometimes collectively the “Government”).

We emphasize at the outset that the Plaintiffs' lawsuits do not challenge the lawfulness of drone attacks or targeted killings.Instead, they seek information concerning those attacks, notably, documents prepared by DOJ's Office of Legal Counsel(“OLC”) setting forth the Government's reasoning as to the lawfulness of the attacks.

The issues primarily concern the validity of FOIA responses that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called “ Glomar responses”(described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description of such documents (so-called “no number, no-list” responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC–DOD Memorandum and other OLC legal opinions, and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ.

We conclude that (1) a redacted version of the OLC–DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) other legal opinions prepared by OLC must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction, (4) the Glomar and “no number, no list” responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy(“OIP”) search was sufficient.We therefore affirm in part, reverse in part, and remand.

Background

The FOIA requests at issue in this case focus primarily on the drone attacks in Yemen that killed Anwar al-Awlaki¹ and Samir Khan in September 2011 and al-Awlaki's teenage son, Abdulrahman al-Awlaki, in October 2011.All three victims were United States citizens either by birth or naturalization.

Statutory Framework.FOIA provides, with exceptions not relevant to this case, that an “agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person.”5 U.S.C. § 552(a)(3)(A)(2013).FOIA contains several exemptions, three of which are asserted in this case.

Exemption 1 exempts records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.”5 U.S.C. § 552(b)(1)(2013).Executive Order 13526 allows an agency to withhold information that (1)“pertains to” one of the categories of information specified in the Executive order, including “intelligence activities (including covert action),”“intelligence sources or methods,” or “foreign relations or foreign activities of the United States” and (2) if “unauthorized disclosure of the information could reasonably be expected to cause identifiable and describable damage to the national security.”Executive Order No. 13526 § 1.1(a)(3)-(4), 1.4(c)-(d), 75 Fed.Reg. 708, 709(Dec. 29, 2009).

Exemption 3 exempts records that are “specifically exempted from disclosure by [another]statute” if the relevant statute either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.”5 U.S.C. § 552(b)(3)(A)(i), (ii)(2013).Two such statutes are potentially relevant here.The Central Intelligence Agency Act of 1949, as amended, provides that the Director of National Intelligence “shall be responsible for protecting intelligence sources or methods,” and exempts CIA from “any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.”50 U.S.C. § 3507(2013).The National Security Act of 1947, 50 U.S.C. § 3024–1(i)(1)(2013), exempts from disclosure “intelligence sources and methods.”

Exemption 5 exempts “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”5 U.S.C. § 552(b)(5)(2013).Exemption 5 encompasses traditional common law privileges against disclosure, including the attorney-client and deliberative process privileges.SeeNational Council of La Raza v. Dep't of Justice,411 F.3d 350, 356(2d Cir.2005).

The N.Y. Times FOIA requests and Government responses.Shane and Savage, New York Times reporters, submitted separate FOIA requests to OLC.Shane's request, submitted in June 2010, sought:

all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing of people suspected of ties to Al–Qaeda or other terrorist groups by employees or contractors of the United States government.

Joint Appendix (“JA”) 296–97.

Savage's request, submitted in October 2010, sought:

a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

JA 300–01.

OLC denied Shane's request.With respect to the portion of his request that pertained to DOD, OLC initially submitted a so-called “no number, no list” response² instead of submitting the usual Vaughn index,³ numbering and identifying by title and description documents that are being withheld and specifying the FOIA exemptions asserted.A no number, no list response acknowledges the existence of documents responsive to the request, but neither numbers nor identifies them by title or description.OLC said that the requested documents pertaining to DOD were being withheld pursuant to FOIA exemptions 1, 3, and 5.

As to documents pertaining to agencies other than DOD, OLC submitted a so-called “ Glomar response.”⁴This type of response neither confirms nor denies the existence of documents responsive to the request.SeeWilner v. National Security Agency,592 F.3d 60, 68(2d Cir.2009).OLC stated that the Glomar response was given “because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged” under 5 U.S.C. § 552(b)(1), (3), (5).CIA confirmed that it requested DOJ to submit a Glomar response on its behalf.⁵

OLC also denied Savage's request.Declining to submit either a Vaughn index or even a no...