762 F.3d 233
2d Cir.2014Background
- The New York Times and other plaintiffs filed FOIA requests; litigation has been ongoing for several years concerning classified OLC documents and a Vaughn index describing withheld records.
- Plaintiffs sought a public Vaughn index so they could identify withheld documents and challenge FOIA exemptions; DOJ initially provided a classified OLC Vaughn index to the district court.
- The panel proposed an opinion requiring disclosure of certain titles/descriptions from OLC’s Vaughn index, with some redactions; the Government repeatedly sought additional redactions via ex parte, in camera submissions.
- After a series of submissions and revised opinions (April–July 2014), the panel bifurcated Vaughn-index issues and ordered disclosure of many titles/descriptions while authorizing specific redactions.
- The Government filed late supplemental classified affidavits (July 28 submissions) requesting further redactions of numerous Vaughn listings; the panel considered these and issued this supplemental opinion granting some redactions and denying others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the OLC Vaughn index (titles/descriptions) must be disclosed to plaintiffs/public | Plaintiffs argued DOJ must produce a Vaughn index so they can decide which documents to challenge | DOJ argued portions of the classified Vaughn index and many titles/descriptions should remain redacted to protect classified/privileged material | Panel required disclosure of the titles/descriptions of many listed records, subject to specific redactions; denied broader secrecy request |
| Whether the Government may treat the classified OLC Vaughn index as a nonpublic, court-only document distinct from a public Vaughn index | Plaintiffs: Vaughn indices are for public disclosure to enable FOIA review | DOJ: Distinguished two types of Vaughn indices — one for court use, one redacted for public release — and argued the OLC index was not intended for public release | Court rejected the two-type distinction for classical Vaughn indices and ordered disclosure of the prepared Vaughn index with limited redactions |
| Whether additional redactions requested in July 28 submissions should be allowed | Plaintiffs opposed further redactions as unnecessary and contrary to FOIA disclosure needs | DOJ sought redaction of additional specific listing titles/descriptions and agency identities in descriptions | Court granted some new redactions (listed specific entry numbers and limited identity redactions), denied others, and clarified what must be disclosed (titles/descriptions keyed to listing numbers) |
| Whether disclosure must include dates or sender/recipient names or substantive content | Plaintiffs: Titles/descriptions suffice; no need to shield metadata unnecessarily | DOJ sought to redact sender/recipient identities and dates for some entries | Court held no disclosure of dates or names of persons/agencies is required; titles/descriptions only, and no disclosure of document contents |
Key Cases Cited
- Keys v. U.S. Dep't of Justice, 830 F.2d 337 (D.C. Cir. 1987) (describes the purpose and form of a Vaughn index)
- Hayden v. National Security Agency, 608 F.2d 1381 (D.C. Cir. 1979) (some Vaughn-index items appropriately withheld from disclosure)
- The New York Times Co. v. U.S. Dep't of Justice, 752 F.3d 123 (2d Cir. 2014) (panel opinions addressing OLC Vaughn index disclosure and redactions)