New York Times Co. v. United States Department of Justice
806 F.3d 682
2d Cir.2015Background
- This appeal arises from FOIA litigation seeking OLC memoranda and related documents about targeted lethal drone operations; the court previously ordered disclosure of a 2010 OLC-DOD memorandum (NYTimes I).
- The Second Circuit remanded remaining OLC documents to the district court for in camera review to determine privilege waiver and appropriate redactions.
- The district court examined eleven sealed OLC exhibits (A–C, E–L) and ordered disclosure only of a redacted Exhibit K (a redacted version of Exhibit B); it withheld most exhibits under FOIA Exemptions 1, 3, and 5.
- The Government submitted classified materials and sought ex parte, in camera briefing and argument; the court heard the Government privately and received a partially redacted transcript of that hearing.
- Appellants (news organizations and amici) challenged the withholding and sought disclosure of redacted portions of the district court’s sealed opinion; the district judge wished to disclose three paragraphs but kept them sealed pending appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OLC Exhibits A–C, E, F–J, L must be disclosed or are exempt | Waiver because public statements by senior officials (and prior disclosures) turned OLC reasoning into working law, defeating exemptions | Documents remain protected by Exemptions 1 (classified), 3 (intelligence/statutory protection), and 5 (deliberative/attorney-client); no agency adoption; public statements do not waive protections for these specific documents | Court affirmed withholding for all except Exhibit K; found waiver only for the redacted portion of Exhibit B (disclosed as Exhibit K) because privilege was effectively waived for that material |
| Whether temporal/contextual gaps defeat waiver where public statements post‑date an OLC memo by many years (e.g., Exhibit E) | Plaintiffs: later official statements about similar subjects support waiver | Government: long time gap and different contexts mean later statements do not waive protection for earlier, distinct legal advice | Court held that long interval and context differences preclude waiver for Exhibit E; affirmed withholding |
| Whether sealed portions of the district court opinion (and the public’s First Amendment right of access) must be disclosed | Plaintiffs: First Amendment/public‑access principles require disclosure of judicial documents and specific sealing findings | Government: portions reveal classified or sensitive material; sealing was to preserve higher values; Erie County/Lugosch findings inapplicable absent right of access | Court held no constitutional right to disclose opinion portions that discuss properly withheld classified information; allowed disclosure of three short paragraphs (subject to limited redactions) that did not reveal classified facts |
| Whether redactions in the June 23 ex parte transcript must remain sealed (including identities of some government attendees) | Plaintiffs: entitled to see transcript redactions and names | Government: redactions protect classified Exhibit E content and identities of CIA personnel protected by statute/Exemption 3 | Court upheld redactions tied to Exhibit E; also upheld two name redactions (though expressed reservations), and warned Government on future ex parte attendance practice |
Key Cases Cited
- New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (prior panel decision ordering disclosure of the 2010 OLC-DOD memorandum)
- Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) (discussing when OLC materials may function as working law)
- Electronic Frontier Foundation v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) (OLC advice not binding agency law unless adopted)
- United States v. Erie County, 763 F.3d 235 (2d Cir. 2014) (First Amendment access and sealing-findings framework)
- Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006) (access to judicial documents and sealing standards)
- In re New York Times, 828 F.2d 110 (2d Cir. 1987) (articulating specific on-the-record findings required to justify sealing)
- ACLU v. Dep’t of Justice, 681 F.3d 61 (2d Cir. 2012) (scope of FOIA Exemption 1 for classified material)
- National Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (2d Cir. 2005) (Exemption 5 covers attorney-client and deliberative process privileges)