New York Times Co. v. United States Department of Justice
915 F. Supp. 2d 508
S.D.N.Y.2013Background
- FOIA requests by the ACLU and The New York Times sought legal analyses and other materials about the government's targeted killing program, including U.S. citizens, with many documents withheld under Exemptions 1, 3, and 5, and some records disclosed only in public speeches or not at all.
- The Times sought Office of Legal Counsel opinions on targeted killing; DoJ/OLC denied with Glomar responses and later No Number, No List disclosures, while CIA maintained a Glomar stance.
- The ACLU sought six categories of post-9/11 material, including the legal basis for targeting U.S. citizens; DoJ and CIA responses were largely Glomar or topically limited, prompting litigation.
- Senior executive statements (Koh, Obama, Johnson, Holder, Brennan) publicly addressing targeted killings prompted consideration of whether such statements waive FOIA exemptions.
- A Northwestern speech, a Yale Dean’s Lecture, and Brennan’s Ethics and Efficacy remarks were discussed as public disclosures; the OLC-DoD Memo remained classified and withheld under Exemption 5, with arguments about waiver, adoption, and “working law.”
- The court granted summary judgment for the Government overall, with one narrow open issue allowing DoD to submit a supplemental justification for Exemption 5 as to two DoD unclassified memos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of Exemption 1 by public disclosures | Plaintiffs argue public statements waiver Exemption 1 | Gvt. contends no waiver; disclosures were general | No waiver of Exemption 1; classified protections preserved |
| Waiver/adoption of Exemption 5 for the OLC-DoD Memo | Public statements adopt or waive the memo | No express adoption; deliberative privilege applies | Deliberative process privilege still applies; no waiver/adoption of the OLC-DoD Memo |
| Exemption 3 applicability: NSA and CIA Act protections | NSA/CIA Act protect sources/methods; targeted killing not covered | NSA/CIA Act protect sources/methods; legal analysis may be exempt | Exemption 3 applies to NSA/CIA Act protections; legal analysis may be redacted |
| Glomar/No Number, No List responses validity | Responses should disclose existence/nature of records | Glomar and No Number, No List authorized to protect classified info | Glomar/No Number, No List responses upheld; no additional disclosure required at this stage |
| Adequacy of the search | Search was inadequate for responsive documents | Search was reasonably calculated to uncover records | Search deemed adequate; summary judgment for Government on search issue |
Key Cases Cited
- Public Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993) (Exemption 1 waiver and classification boundaries discussed)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (Official disclosure standard for Glomar/no waiver)
- Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009) (Exacting standard for waiver in Exemption 1 context)
- Sears, Roebuck & Co. v. Renegotiation Bd., 421 U.S. 132 (1985) (Deliberative process analysis and predecisional/public policy context)
- Nat’l Day Laborer Org. Network v. Immigration and Customs Enforcement, 827 F. Supp. 2d 242 (S.D.N.Y. 2011) (Waiver/adoption analysis for deliberative privilege; public disclosures)
- La Raza v. Dept. of Justice, 411 F.3d 125 (2d Cir. 2005) (2d Cir. 2005) (Adoption/incorporation in FOIA privilege analysis)
- Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) (Exemption 5 and deliberative process standards)
- ACLU v. Dep’t of Justice, 681 F.3d 61 (2d Cir. 2012) (Waterboarding context; deference to national security affidavits)
- The Drone Strike Case (ACLU v. DoD), 808 F. Supp. 2d 280 (D.D.C. 2011) (Deliberative privilege and national security disclosures in drone strike context)