New York Times Co. v. United States Department of Justice
758 F.3d 436
2d Cir.2014Background
- This appeal concerns whether portions of a classified Vaughn index (titles and short descriptions of government-withheld documents responsive to FOIA requests) must be disclosed publicly so requesters and courts can challenge exemption claims.
- The District Court ordered production of a public Vaughn index; this Court initially affirmed in a Revised Opinion but bifurcated certain Vaughn-index disclosure issues for rehearing.
- The Government petitioned for rehearing, submitting some material ex parte and in camera, arguing specific listed entries (grouped by listing numbers) contain classified, statutory, or privileged material and should be withheld in whole or part.
- The Court analyzed whether titles/descriptions themselves are sensitive such that disclosure would harm national security or reveal privileged communications, distinguishing between informative versus non-informative titles/descriptions.
- The Court granted the petition in part: it exempted from public disclosure the titles and/or descriptions of specific numbered listings (including groups identified in the petition) and clarified which listings must remain public; it remanded for the District Court to order a public Vaughn index consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether titles/descriptions in a classical Vaughn index must be public | Public Vaughn index is required to allow meaningful FOIA challenges | Some titles/descriptions are classified/privileged and would reveal sensitive info; therefore must be withheld | Court: Generally require disclosure of non-sensitive titles/descriptions; withhold specific listings where titles/descriptions themselves are sensitive (specific list exempted) |
| Whether classification of the Vaughn index as a whole precludes public index | Plaintiffs sought a public Vaughn index and cannot be faulted for not seeking the classified one | Classified index means titles/descriptions shouldn’t be released publicly | Court: Classification does not automatically justify nondisclosure; titles/descriptions not themselves exempt must be disclosed segregably |
| Applicability of attorney-client / deliberative privileges to Vaughn entries | Requesters can challenge exempted documents if given titles/descriptions | Information provided to OLC and pre-decisional advice is privileged, so entries should be withheld | Court: Document content may be privileged, but non-informational titles/descriptions need not be withheld; limited carve-outs of titles only in some listings were allowed |
| Adequacy/timeliness of Government’s specificity in identifying withheld listings | Plaintiffs argued for comprehensive public index | Government failed to identify specific additional listings in a timely manner, citing space constraints | Court: Rejected Government’s late, non-specific claims; specificity required; declined to withhold unspecified "other" listings |
Key Cases Cited
- American Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (Vaughn index required when Glomar response fails)
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) (Vaughn index facilitates adjudication of FOIA exemptions)
- Keys v. U.S. Dep't of Justice, 830 F.2d 337 (D.C. Cir. 1987) (classical Vaughn index defined)
- National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525 (D.C. Cir. 1986) (Vaughn index as accepted method to identify withheld records)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (origin of the Vaughn index procedure)
- Hayden v. National Security Agency, 608 F.2d 1381 (D.C. Cir. 1979) (itemization sensitive in itself may be exempt under Exemption 1)
- Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2009) (Glomar response doctrine upheld in national security FOIA context)