New York Times Co. v. United States Department of Justice
752 F.3d 123
2d Cir.2014Background
- Plaintiffs (The New York Times reporters and the ACLU) filed consolidated FOIA suits seeking OLC, DOJ, DOD, and CIA records about the legality and process of U.S. drone/targeted killings of U.S. citizens (not a challenge to the lawfulness of the strikes themselves).
- Agencies responded with combinations of Glomar refusals (neither confirm nor deny), “no number, no list” responses, and partial Vaughn indices; OLC identified one classified OLC–DOD Memorandum withheld under Exemptions 1 and 5.
- The district court granted summary judgment to the government, accepting classification and privilege justifications and upholding most Glomar/no-list responses, but ordered limited further justification for two DOD memos.
- After the district court ruling, the DOJ White Paper (a detailed legal analysis concerning lethal operations against U.S. citizens) was leaked and then officially disclosed; senior officials publicly described OLC advice as establishing legal boundaries for operations.
- On appeal the Second Circuit reviewed the classification, Exemption 3/1/5 claims, waiver arguments based on public disclosures, adequacy of the OIP search, and the propriety of Glomar/no-number/no-list responses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disclosure of OLC–DOD Memorandum legal analysis | The legal reasoning must be disclosed; public statements and revealed White Paper waived privileges | The memorandum is classified and protected by Exemptions 1 and 5; disclosure would harm national security and chill inter-agency advice | Court: Waiver for legal analysis occurred; redacted portions (legal reasoning) must be disclosed; truly sensitive operational/intel portions remain withheld/redacted |
| Validity of Glomar and "no number, no list" responses | Such blanket denials are insufficient; agencies must provide Vaughn indices or justify non-disclosure | Disclosure of existence/number/description would reveal intelligence sources/methods or which agency (e.g., CIA) played an operational role | Court: Glomar/no-list responses insufficiently justified; OLC must disclose a redacted classified Vaughn index; DOD and CIA must submit classified Vaughn indices for in camera review on remand |
| Applicability of Exemption 1 (classification) and Exemption 3 (statutory exemptions) to withheld materials | Plaintiffs: legal analysis and certain program details are not properly classified or covered by Exemption 3 (intelligence sources/methods) | Government: materials properly classified under EO 13526; Exemption 3 covers intelligence sources/methods and CIA functions | Court: Classification of operational details sustained; but public disclosures (including DOJ White Paper and officials' statements) undercut protection for the memorandum's legal analysis—Exemption 1/3 cannot shield those portions now disclosed |
| Adequacy of DOJ OIP search | ACLU: OIP search was inadequate (missed items OLC located) | Government: OIP search procedures were reasonable and the affidavit is adequate | Court: OIP search was adequate (method and sworn declarations sufficient) |
Key Cases Cited
- Wilner v. National Security Agency, 592 F.3d 60 (2d Cir.) (agency affidavits and Glomar principles in FOIA national-security context)
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir.) (limits on Glomar/no-list responses; post-disclosure considerations)
- Wilson v. CIA, 586 F.3d 171 (2d Cir.) (waiver/official disclosure standard for classified information)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (scope of Exemption 5; deliberative-process principle)
- Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d Cir.) (waiver of deliberative/attorney-client privileges in FOIA context)
- Grand Central P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir.) (standard for adequacy of FOIA searches)