American Civil Liberties Union v. United States Department of Justice
2016 U.S. App. LEXIS 22596
| 2d Cir. | 2016Background
- ACLU (and others) sought FOIA disclosure in 2011 of OLC, CIA, and DOD records concerning lethal drone strikes; litigation began in 2012 and reached the Second Circuit multiple times.
- Earlier appeals (NYTimes I and II) directed limited disclosure (e.g., a redacted OLC–DOD memorandum) and ordered in camera review of multiple agency Vaughn indices and certain withheld documents.
- On remand the District Court reviewed numerous OLC, CIA, and DOD documents in camera and ordered nondisclosure of 52 documents but required disclosure (in whole or part) of seven specific documents (OLC 46, 50, 144, 145; CIA 59 tab C, 109, 113).
- The District Court also identified six facts it deemed officially acknowledged and directed agencies to assess segregability of those facts in remaining records; it left a seventh fact for appellate consideration.
- This appeal/cross-appeal: ACLU challenges withholding of 52 documents; the Government challenges the District Court’s orders to disclose the seven documents. The Second Circuit conducted further in camera review (including three additional documents) and considered Exemption 5 (predecisional/deliberative process) and other FOIA exemptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 52 withheld documents must be disclosed | ACLU contended many withheld records (or parts) should be released under FOIA | Govt argued exemptions (including national security and Exemption 5) protect the documents; no waiver occurred | Court affirmed: all 52 may be withheld; exemptions apply and no waiver shown |
| Whether the seven documents the District Court ordered disclosed are exempt | ACLU urged disclosure of those seven (or portions) per District Court ruling | Govt argued each is predecisional/deliberative (Exemption 5) or otherwise exempt and thus may be withheld | Court reversed District Court: all seven are predecisional/drafts and may be withheld |
| Whether the six (officially acknowledged) facts must be segregated and disclosed | ACLU relied on District Court’s finding of official acknowledgment to obtain those facts where separable | Govt argued agencies cannot reasonably segregate those facts from exempt material | Court agreed with agencies: segregation of the six facts is not reasonably practicable; no further disclosure required |
| Whether the seventh fact is officially acknowledged and relevant to disclosure | ACLU hinted it could support disclosure if acknowledged | Govt did not rely on the seventh fact to withhold any documents here | Court declined to decide whether the seventh fact was officially acknowledged because it was unnecessary to resolve this appeal |
Key Cases Cited
- New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (ordered redacted disclosure of OLC–DOD memorandum and related procedures for in camera review)
- New York Times Co. v. U.S. Dep’t of Justice, 806 F.3d 682 (2d Cir. 2015) (affirmed withholding of certain documents on remand)
- Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) (discusses Exemption 5 and deliberative-process privilege)
- Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964 (9th Cir. 2009) (discusses Exemption 5 protection for predecisional drafts)
- Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178 (3d Cir. 2007) (addresses predecisional/deliberative protection under FOIA)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (establishes Vaughn index practice for FOIA withholding)