The NEW YORK TIMES COMPANY, Charlie Savage, Scott Shane, American Civil Liberties Union, American Civil Liberties Union Foundation v. UNITED STATES DEPARTMENT OF JUSTICE, United States Department of Defense, Central Intelligence Agency
Docket Nos. 13-422(L), 13-445(Con)
United States Court of Appeals, Second Circuit
July 10, 2014
758 F.3d 436
Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
Submitted: June 5, 2014.
- The court correctly identified the six, non-exhaustive factors relevant to its determination as:
whether the defendant: (1) regularly engaged in laundering funds; (2) laundered funds for an extended period of time; (3) laundered funds from multiple sources; (4) generated a substantial amount of revenue in return for laundering funds; (5) had a prior conviction for a money laundering related offense; or (6) made statements during the course of an undercover government investigation that he had engaged in any of the conduct listed in factors (1), (2), (3), or (4). - The court made specific findings as to the first, second, fourth, and sixth factors, concluding that all of those factors weighed against Lucena-Rivera. Specifically, the court found that Lucena-Rivera was engaged in a “sophisticated money laundering scheme” that operated for a number of years using multiple businesses owned by Lucena-Rivera as cover, including “a trucking firm, restaurant, gravel pit, and glass factory” (Factors (1) and (2)); his money-laundering enterprise generated significant revenue, citing the money involved in certain transactions (e.g., $1.175 million used to purchase a yacht) (Factor (4)); and that Lucena-Rivera indicated to the DEA confidential informant that he had been operating his illegal business enterprise for two years (Factor (6)).
- The court‘s findings were not clearly erroneous. Hence, the court was entitled to apply the enhancement.
The sentencing decision of the district court is affirmed.
It is so ordered.
Sharon Swingle, Atty., Appellate Staff, Civil Division, U.S. Dept. of Justice, Wash-
No opposition papers were requested.
JON O. NEWMAN, Circuit Judge:
This opinion adjudicates issues presented by the Government‘s petition to rehear our decision in The New York Times v. United States Department of Justice, 752 F.3d 123 (2d Cir.2014), revised, 756 F.3d 100, 2014 WL 2838861 (2d Cir. June 23, 2014) (“Revised Opinion“), which were bifurcated for later decision by our initial opinion on the petition, see id., 756 F.3d 97, 2014 WL 2854878 (2d Cir. June 23, 2014) (“First Rehearing Opinion“).1 The remaining bifurcated issues concern the Government‘s objections to the ruling requiring disclosure of the title and description, but not the content, of several items listed on a classified Vaughn index. See Revised Opinion at 58-63;2 756 F.3d at 121-24, 2014 WL 2838861, at *18-19. That ruling resulted from the Appellants’ objections to the Appellees’ submission of
The petition for rehearing, portions of which were submitted ex parte and in camera, contends that several of the listings in the Vaughn index, i.e., the titles and descriptions of numbered listings of documents, that were ordered to be disclosed contain information that is “classified, protected by statute, and/or privileged.” Petition 12. The petition refers specifically to three groups of listings (250, 262, 263, 264, 265, and 271), (57-68, 70-74, 76-79, 83, 88-110, 116-119, and 123-130), and (67, 118, and 119), and also expresses uncertainty as to whether a fourth group of listings (244, 246, 248, and 256) has been ordered disclosed.
Once a FOIA request has been made for documents, the preparation of a Vaughn index is now an accepted method for the Government to identify responsive documents and discharge its obligation to assert any claimed FOIA exemptions to the various documents withheld.3 See American Civil Liberties Union v. CIA, 710 F.3d 422, 432 (D.C.Cir.2013) (“With the failure of the CIA‘s broad Glomar response, the case must now proceed to the filing of a Vaughn index or other description of the kind of documents the Agency possesses, followed by litigation regarding whether the exemptions apply to those documents.“); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145–48 (D.C.Cir.2006); Keys v. U.S. Dep‘t of Justice, 830 F.2d 337, 349-50 (D.C.Cir.1987); National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 527 (D.C.Cir.1986); Lykins v. United States Dep‘t of Justice, 725 F.2d 1455, 1463 (D.C.Cir.1984); see also Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (“[W]e do not retreat in the least from our belief that an index is of great assistance to requesters and courts in appropriate cases....“).
The Vaughn index procedure was developed to avoid the cumbersome alternative of routinely having a district court examine numerous multi-page documents in camera to make exemption rulings. See Vaughn v. Rosen, 484 F.2d 820, 825 (D.C.Cir.1973).4 With the large number of documents listed in the pending case, it would be unrealistic to expect the District Court to make an in camera inspection of so many documents to assure itself that the claimed exemptions apply.5
A Vaughn index typically lists the titles and descriptions of the responsive docu-
The titles and descriptions of documents listed in a Vaughn index usually facilitate the task of asserting and adjudicating the requester‘s challenges to the Government‘s claims of exemption.6 “[T]he index gives the court and the challenging party a measure of access without exposing the withheld information,” Judicial Watch v. FDA, 449 F.3d at 146, and “it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court,” Keys, 830 F.2d at 349 (internal quotation marks and citation omitted).
Especially in cases such as the pending one, involving a very large number of responsive documents, the index also enables the FOIA requester, after seeing the titles and descriptions of all listed documents, to inform the district court which of those documents it wants disclosed. For example, in this case the Vaughn index describes several listed documents as email chains, and, because the Plaintiffs have disclaimed any interest in disclosure of these documents, we excluded them from disclosure in our Revised Opinion.7
We have located no reported FOIA decision considering whether the titles and descriptions of documents listed in a “classical” Vaughn index are protected from disclosure. The reason appears to be that it is unusual for the Government to classify a Vaughn index containing only titles and descriptions of withheld documents. “In the usual case, the index is public and relatively specific in describing the kinds of documents the agency is withholding.” American Civil Liberties Union, 710 F.3d at 432 (emphasis added). “The court is to require the agency to create as full a public record as possible, concerning the nature of the documents and the justification for nondisclosure.” Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C.Cir.1979) (emphasis added). Where, as here, the Government has elected to classify a Vaughn index,8 it becomes espe-
Before considering the Government‘s request to exclude from disclosure the titles and descriptions of specific listings, in addition to those already excluded, we note the Government‘s more general argument that the Plaintiffs “did not seek disclosure of OLC‘s classified Vaughn index.” Petition 12. But, as the petition acknowledges, the Plaintiffs “argued that the [G]overnment should prepare and produce a public Vaughn index,” Petition 12, and the Plaintiffs can hardly be faulted for not requesting the classified index of which they were unaware.
The Government also contends that our Revised Opinion “has not identified the legal ground” for the disclosure we ordered of some of the titles and descriptions of documents listed on the Vaughn index.9 Petition 11. However, in response to a FOIA request, the burden is on the Government to justify not disclosing withheld information. See Hayden, 608 F.2d at 1384.
We turn then to the specific listings that the Government contends should not be disclosed, in addition to the 91 listings we excluded from disclosure in our Revised Opinion. The Government opposes disclosure of the titles and descriptions of listings in the first group because, it contends, the content of the documents contain sensitive information. Even if that is so, it is not necessarily a reason to withhold disclosure of the titles and descriptions of the documents, unless these titles and descriptions themselves contain sensitive information. We agree with the District of Columbia Circuit that “[w]hen the itemization and justification are themselves sensitive, ... to place them on public record could damage security in precisely the way that FOIA Exemption 1 is intended to prevent.” Hayden, 608 F.2d at 1384. As to non-sensitive titles and descriptions, however, disclosure is required, and the Plaintiffs can then inform the District Court which documents it wants disclosed and which claims of exemption it disputes. At that point the District Court can evaluate all of the Government‘s submissions, adjudicate the Government‘s claims for exemptions, and determine which records warrant redactions or even withholding in their entirety.
The petition characterizes the six listings of the first group of documents as relating to a contemplated military operation. Although the titles and descriptions do not provide any information about such an operation, we will accept the Government‘s representation and exempt these titles and descriptions from disclosure to avoid even the risk that the fact of the military operation might be inferred.
The petition characterizes the 57 listings of the second group of documents as describing information provided to OLC in connection with OLC‘s preparation of
The Petition seeks protection for the listings of the three documents in the third group of documents for reasons indicated by the Government in a sealed portion of its Petition. We deem those reasons sufficient to preclude disclosure of the listings in the third group of documents. We will therefore add to the items already excluded from disclosure the titles and descriptions of listings 67, 118, and 119.
Beyond the three groups of numbered listings, the Government contends that the titles and descriptions of “other” listings should not be disclosed. See Petition 14. The Government has now had three opportunities to claim justified exceptions to Vaughn index disclosures—first, in its brief on the merits, second, in the pending petition for rehearing, and third, in its response to the Court‘s ex parte letter of June 10, submitting for in camera review the Court‘s proposed Revised Opinion. It is far too late in the day to fail to identify by specific numbers the “other” listings. The Government‘s claim that “space constraints” in the rehearing petition preclude the requisite specificity, see Petition 15, is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.
The Government expresses uncertainty as to whether the titles and descriptions of another group of listings (244, 246, 248, and 256) were excluded from disclosure by our Revised Opinion. Although the Revised Opinion expressly excluded these listings from disclosure, see Revised Opinion (Conclusion ¶ 2), 756 F.3d at 124-25, 2014 WL 2838861, at *20, the reference to these listings elsewhere in the Revised Opinion created some doubt. We will therefore delete these listings from the text of the Revised Opinion at page 62, lines 9-10, 756 F.3d at 123.
Accordingly, with respect to the bifurcated issues concerning the Vaughn index, we will grant the petition in part by excluding from disclosure the titles and descriptions of listings 67, 105, 118, 119, 250, 262-65, and 271, and the titles of listings 57, 62, 66, 68, 69, 70, 78, 79, 80, 88, 92, 93, 97, 100, 103, 104, 108, 123-28, and 130. We will remand the case to the District Court with directions, in addition to those ordered in our Revised Opinion (Conclu-