New York Times Co. v. United States Deparment of Justice
2014 U.S. App. LEXIS 11733
| 2d Cir. | 2014Background
- Plaintiffs (New York Times reporters and ACLU) filed FOIA requests seeking OLC and other agency legal memoranda and records concerning U.S. targeted killings of U.S. citizens by drone, including a classified OLC‑DOD memorandum regarding Anwar al‑Awlaki.
- DOJ/OLC, DOD, and CIA responded with a mix of Glomar responses (neither confirm nor deny), "no number, no list" responses, partial Vaughn indices, and withholdings under FOIA Exemptions 1 (classified), 3 (statutory), and 5 (deliberative/attorney‑client).
- District Court granted summary judgment to the Government except for a limited order to DOD to justify withholding two unclassified memoranda; it found classification and privilege claims generally supported and rejected waiver claims.
- After the District Court decision, the DOJ White Paper analyzing the lawfulness of lethal operations was leaked and then officially released; senior officials (Attorney General, CIA Director, President) publicly discussed the lawfulness and some operational details, including CIA’s role and that al‑Awlaki was killed in Yemen.
- On appeal, the Second Circuit examined adequacy of searches, the validity of Glomar/no‑number responses, Exemptions 1, 3, and 5, and whether public disclosures waived claimed privileges for legal analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OLC‑DOD Memorandum legal analysis must be disclosed | N.Y. Times/ACLU: public statements and DOJ White Paper waived privilege and classification for the memorandum’s legal reasoning | Gov't: memorandum properly classified and protected by Exemption 5; disclosure would harm operations and deter seeking OLC advice | Court: Waiver as to the memorandum’s legal analysis occurred; redacted legal portions must be disclosed, classified operational details may remain withheld |
| Whether Glomar / no‑number/no‑list responses were justified | Plaintiffs: public disclosures undermine Glomar and no‑number claims; request Vaughn indices | Gov't: confirming existence or listing documents would reveal operational roles (e.g., CIA) and expose sources/methods | Court: Glomar/no‑number responses insufficiently justified; OLC’s classified Vaughn index (with redactions) must be disclosed; DOD/CIA must submit classified Vaughn indices for in camera review |
| Whether other OLC and DOD legal memoranda privileges were waived | ACLU: public releases/statements indicate waiver for other OLC memoranda and DOD’s memos 9 & 10 | Gov't: many memoranda are predecisional, limited, or contain classified material; no waiver established | Court: DOD memos 9 & 10 properly withheld under Exemption 5; other OLC memoranda must be produced to district court for in camera inspection to decide waiver/redactions |
| Adequacy of DOJ Office of Information Policy (OIP) search | ACLU: OIP failed to find documents OLC located (30 e‑mail chains) | Gov't: search methodology was reasonable and sufficient | Court: OIP search was adequate on the record; method (not perfect results) controls |
Key Cases Cited
- Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2009) (standards for Glomar/no‑number responses and exemption burdens)
- Wilson v. Central Intelligence Agency, 586 F.3d 171 (2d Cir. 2009) (test for official disclosure/waiver of Exemption 1)
- ACLU v. Department of Justice, 681 F.3d 61 (2d Cir. 2012) (agency affidavit standards; weight given to classified affidavits)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (scope of Exemption 5; deliberative process rationale)
- Brennan Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) (attorney‑client/deliberative waiver and adopted‑as‑policy principles)
- Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (standards for adequacy of FOIA search)