New York Times Co. v. United States Department of Justice
872 F. Supp. 2d 309
S.D.N.Y.2012Background
- NYT and ACLU sue DOJ and FBI under FOIA seeking disclosure of a classified Report to Congress about Section 215 of the Patriot Act.
- Government asserts disclosure would reveal sources/methods and harm national security.
- Two Senators publicly criticized executive interpretation of Section 215, supporting bad-faith withholding concerns.
- NYT FOIA: Savage request dated May 27, 2011; NSD denial Aug. 2, 2011; appeal; litigation commenced Oct. 2011; Report referral to Department Review Committee.
- ACLU FOIA: request May 31, 2011; NSD released three documents Aug. 22, 2011; remaining documents including the Report withheld; suit filed Oct. 2011.
- Court conducts in camera review and relies on Exemptions 1 and 3; rejects "secret law" claim and concludes redactions are not feasible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 1 justifies withholding | Times/ACLU contend exemption not satisfied. | Government contends Report properly classified under EO 13526. | Exemption 1 applies; Report remains classified. |
| Whether Exemption 3 (National Security Act) applies | Awaiting disclosure under statute not satisfied. | Disclosures would reveal sources/methods; NSA protection supported. | Exemption 3 applies; Report exempt. |
| Whether in camera review supports withholding | In camera review unnecessary or could undercut public scrutiny. | In camera review appropriate for sensitive material; aids assessment. | In camera review conducted; supports withholding under Exemptions 1 and 3. |
| Whether the secret law doctrine requires disclosure | Secret law doctrine should compel disclosure of any governing rules. | No basis to read secret law into FOIA exemptions here. | Secret law doctrine rejected; no disclosure required. |
| Feasibility of redacting non-exempt portions | Redaction could preserve non-exempt parts. | Exempt and non-exempt parts are inextricably intertwined; redaction not feasible. | Redacted disclosure not feasible; entire Report exempt. |
Key Cases Cited
- Wilner v. Nat’l Sec. Agency, 592 F.3d 60 (2d Cir. 2009) (deference to executive affidavits predicting harm to national security)
- Hayden v. Nat’l Sec. Agency/Ctr. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979) (limits on public descriptions that would reveal secrets)
- Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011) (rejects secret law concept and emphasizes text of FOIA)
- Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) (rejects expansive, ungrounded exceptions to FOIA)
- ACLU v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (FOIA exemptions are narrowly construed; deference to national security declarations)
- CIA v. Sims, 471 U.S. 159 (1985) (executive branch policies regarding intelligence sources/methods)
- Kriko rian v. Dep’t of State, 984 F.2d 461 (D.C. Cir. 1993) (statutory basis for Exemption 3 review)