Am. Civil Liberties Union v. Dep't of Justice, 894 F.3d 490

Background

Two consolidated FOIA suits (filed 2011 and 2015) sought documents about lethal drone strikes; earlier appeals produced some disclosures and multiple opinions (NYTimes I/II, ACLU).
Chief Judge McMahon identified seven potentially "officially acknowledged" facts implicated by requested documents; she ruled six acknowledged and reserved the seventh.
In the second suit the District Court later ruled that an additional fact ("the fact at issue") had been officially acknowledged and prepared a sealed opinion; portions were redacted pending classification review.
The Government sought to keep the district court’s official-acknowledgement ruling and related sentences redacted and appealed solely to vacate that ruling and maintain redactions (not challenging document withholding/disclosure decisions).
The Second Circuit found it had jurisdiction and that the Government was aggrieved for standing purposes based on a sealed affidavit from a senior official asserting harm from disclosure.
The Court concluded the district court’s official-acknowledgement ruling was unnecessary to the operative judgment, vacated that ruling, and remanded directing the district court to leave the currently redacted passages redacted in the public opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Government may appeal the district court’s ruling that a fact was "officially acknowledged" despite prevailing on most FOIA claims	ACLU: the ruling is correct and should be affirmed and publicly disclosed	Government: it is aggrieved and may appeal because disclosure of the acknowledged fact would harm national security	Government has standing; court nonetheless vacated the district court’s official-acknowledgement ruling as unnecessary and ordered the redactions to remain
Whether the district court’s official-acknowledgement ruling was necessary to support its disclosure/withholding decisions	ACLU: the ruling affected documents and could bear on disclosures	Government: the ruling was unnecessary to any withholding/disclosure decisions in the judgment	Court: ruling was unnecessary to the operative judgment, so appellate court need not decide its correctness
Whether the official-acknowledgement ruling should be vacated or remain unredacted on public record	ACLU: ruling is correct and should be public; it argues disclosure promotes transparency	Government: urges vacatur and continued redaction, citing sealed affidavit showing likely harm	Court vacated the ruling and directed that current redactions remain to avoid risk to security interests
Whether public materials (e.g., Kerry transcript) undermine the Government’s secrecy claim	ACLU: public transcript suggests fact is already knowable, diminishing secrecy concerns	Government: sealed evidence shows disclosure would still harm interests despite public transcript	Court: public transcript exists but disclosure of the district court’s ruling poses additional risk; redactions should remain

Key Cases Cited

New York Times Co. v. U.S. Dep't of Justice, 756 F.3d 100 (2d Cir. 2014) (prior FOIA appeal disclosing OLC–DOD memorandum)
New York Times Co. v. U.S. Dep't of Justice, 806 F.3d 682 (2d Cir. 2015) (follow-up FOIA decisions on related records)
ACLU v. U.S. Dep't of Justice, 844 F.3d 126 (2d Cir. 2016) (addressing official-acknowledgement questions in the consolidated litigation)
Concerned Citizens of Cohocton Valley, Inc. v. N.Y. State Dep't of Envtl. Conservation, 127 F.3d 201 (2d Cir. 1997) (standing/ability of prevailing party to appeal certain rulings)
In re DES Litigation, 7 F.3d 20 (2d Cir. 1993) (exception for prevailing party to appeal if aggrieved)
California v. Rooney, 483 U.S. 307 (1987) (appellate courts review judgments, not mere statements in opinions)
Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939) (party may not appeal to review findings not necessary to decree)
ACLU v. Dep't of Justice, 681 F.3d 61 (2d Cir. 2012) (deference to government affidavits about national security in FOIA context)