13-422-cv (L) The New York Times Company v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT August Term 2013 Submitted: June 5, 2014 Decided: August 11, 2014 Docket Nos. 13-422(L), 13-445(Con)

- - - - - - - - - - - - - - - - - - - - - - THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees.

- - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, CABRANES, and POOLER, Circuit Judges

. Supplemental opinion on petition for rehearing. 1 With respect to the supplemental request for additional 2 redactions from the required disclosure of titles and/or 3 descriptions of some items listed in the Vaughnindex, request 4 granted in part and denied in part; petition for panel 5 rehearing again denied. 6 Sharon Swingle, Atty., Appellate 7 Staff, Civil Division, U.S. 8 Dept. of Justice, Washington, 9
1D.C.; Preet Bharara, U.S. 1 Atty., Sarah S. Normand, Asst. 2 U.S. Atty., New York, N.Y., 3 Stuart F. Delery, Asst. U.S. 4 Atty. General, Beth S. 5 Brinkman, Deputy Asst. U.S. 6 Atty. General, Douglas N. 7 Letter, and Matthew M. 8 Collette, Attys., Appellate 9 Staff, Civil Division, U.S. 10 Dept. of Justice, Washington, 11 D.C., on the petition, for 12 Defendants-Appellees. 13 14 No opposition papers requested. 15 16 17 18 JON O. NEWMAN, Circuit Judge : 19 After we ruled on the Government’s motion for panel 20 rehearing in this needlessly protracted FOIA litigation (the 21 Plaintiffs’ FOIA requests were made four years ago), the 22 Government moved for leave to file ex parte and in camera two 23 submissions (“July 28 submissions”) in support of its petition 24 for rehearing in banc. See Motion to Submit Ex Parte 25 Classified and Privileged Supplemental Declarations in Support 26 of Petition for Rehearing En Banc, filed July 23, 2014 27 (hereinafter “July 23 Motion”). On July 25, 2014, Chief Judge 28 Katzmann, treating the request as a one-judge procedural 29 motion, granted the motion, and the two new submissions were 30 filed ex parte and in camera on July 28, 2014. Because it is 31

2the practice of this Court, prior to the convening of an in 1 banc court, to have all in banc submissions initially 2 considered by the relevant panel prior to circulation to the 3 active judges of the Court, the July 28 submissions have been 4 made available to the panel, which has elected to treat them 5 as a tardy supplemental request in support of the Government’s 6 June 5, 2014, petition for panel rehearing. Following the 7 filing of this supplemental opinion on the petition for panel 8 rehearing, the July 28 submissions and this opinion will be 9 circulated to the active judges (they have already received 10 the Government’s petition for rehearing in banc and this 11 panel’s prior opinions). 12 Background 13 Assessment of the requests in the July 28 submissions for 14 further redactions from the Vaughnindex in addition to those 15 authorized by the panel’s July 10, 2014, opinion, which 16 denied, with several exceptions, rehearing on the bifurcated 17 Vaughnindex issues, requires a brief summary of the pertinent 18 steps taken in this Court. 19 On April 15, 2013, The New York Times plaintiffs, in 20 their opening appellate brief, specifically included in their 21 request for relief that we should “direct DOJ to provide a 22

3Vaughnindex as to any additional documents [beyond the OLC1 DOD Memorandum] that were subject to the Glomarresponses,” 2 Br. for NYTimes at 51 (emphasis added), a request repeated in 3 the June 28, 2013, reply brief at 24. Indeed, in its June 5, 4 2014, petition for rehearing, the Government acknowledged that 5 the Plaintiffs had “argued that the government should prepare 6 and produce a public Vaughnindex.” Pet. for Reh’g at 12 7 (emphasis added). Thus, more than a year ago, the Plaintiffs 8 made it clear that they wanted a Vaughnindex from DOJ. 1 The 9 Government’s claim that the panel ordered release of a Vaughn 10 index “ sua sponte,” see July 23 Motion at 1, is incorrect. 11 On June 14, 2013, the Government in its brief referred in 12 a footnote to “the Vaughnindex submitted by the Office of 13 Legal Counsel as an attachment to a responsive e-mail.” Br. 14 for Appellees at 25 n.8. The brief defended the Government’s 15 use of DOJ’s no number, no list response (rather than a Vaughn 16 index). 17 On February 10, 2014, after oral argument, the panel 18 provided to the Government ex parte and in camera its proposed 19 opinion “to afford an opportunity to advise whether any 20

1 Although the Plaintiffs did not request the specific Vaughnindex that OLC had prepared, of which the Plaintiffs were unaware, their request for a Vaughnindex was clear. 4classified information, not intended to be disclosed by this 1 opinion, has been inadvertently disclosed.” See The New York 2 Times Co. v. U.S. Dep’t of Justice , 752 F.3d 123, 144 n.23 (2d 3 Cir. 2014). That proposed opinion required disclosure of 4
OLC’s Vaughnindex, but redacted a number of listings. See id. 5 at 143-44. 6 On March 13, 2014, the Government responded to that 7 opportunity by submi tting a motion ex parte and in camera , 8 which requested redaction of just four listings in the Vaughn 9 index (nos. 252-54, 268), three of which we had already 10 indicated would be redacted. 11 On March 17, 2014, we provided the Government ex parte 12 and in camera a revised version of the panel’s proposed 13 opinion, which still required disclosure of OLC’s Vaughn 14 index, subject to the four additional redactions. 15 On March 28, 2014, the Government responded ex parte and 16 in camera with a request that certain portions of the revised 17 proposed opinion quoting public statements of senior officials 18 either be redacted or moved to a different location in the 19 opinion in order to preserve the Government’s opportunity for 20 further appellate review. This response to the revised 21 proposed opinion made no request to redact any additional 22 listings in the Vaughnindex. 23 5On April 21, 2014, the p anel filed public and sealed 1 versions of its opinion. See The New York Times Co. v. U.S. 2 Dep’t of Justice , 752 F.3d 123 (2d Cir. 2014) (public 3 version). The statements identified in the Government’s March 4 28, 2014, submission were transferred from the public version 5 to the sealed version. 6 On May 28, 2014, we filed an order that, among other 7 things, reiterated the first three redactions from the Vaughn 8 index that were sought in the Government’s March 13, 2014, 9 submission, and agreed to the fourth one. See The New York 10 Times Co. v. U.S. Dep’t of Justice , Order at 5 (May 28, 2014). 11 No other redactions had been requested in the Government’s 12 March 13, 2014, submission. 13 On June 5, 2014, t he Government filed its petition for 14 panel and in banc rehearing. The petition identified three 15 groups of listings in the OLC’s Vaughnindex that it contended 16 should be redacted and asserted that “other” listings, not 17 identified by number, should also be redacted. See Petition at 18 14. 19 On June 9, 2014, the Court submitted to the Government ex 20 parte and in camera a proposed panel opinion on the petition 21 for rehearing, and on June 10, 2014, the panel issued an order 22

6that (1) noted that the proposed opinion would bifurcate the 1 Vaughnindex issues for later adjudication, and (2) directed 2 the Government to notify the Court by June 20, 2014, of any 3 objection “set forth with specificity” to the filing of the 4 proposed opinion. See The New York Times Co. v. U.S. Dep’t of 5 Justice , Order at 2 (June 10, 2010). On June 20, 2014, the 6 Government submitted ex parte and in camera a response to the 7 Court’s June 10, 2014, order. That response requested 8 redactions from the OLC-DOD Memora ndum, which were 9 subsequently made. 10 On June 23, 2014, the panel filed an opinion partially 11 denying rehearing. See The New York Times Co. v. U.S. Dep’t 12 of Justice , 2014 WL 2854878 (June 23, 2014). That opinion 13 bifurcated the Vaughnindex issues, made all of the 14 additionally requested redactions from the OLC-DOD Memorandum, 15 and deferred adjudication of the Vaughnindex issues. See id. 16 at *1-*2. On June 23, 2014, the panel also filed a revised 17 version of its April 21, 2014, opinion. See The New York Times 18 Co. v. U.S. Dep’t of Justice , 2014 WL 2838861 (2d Cir. June 19 23, 2014). 20 On July 10, 2014, the panel filed an opinion adjudicating 21 the Vaughnindex issues and denying the petition for 22

7rehearing, with the exception that the panel further revised 1 its June 23, 2014, opinion to redact many of the titles and 2 descriptions for which the Government had sought exemption in 3 its petition for rehearing. See The New York Times Co. v. U.S. 4 Dep’t of Justice , 2014 WL 3396075 (July 10, 2014). 5 This was the state of affairs when on July 25, 2014, the 6 Government filed the July 23 Motion, seeking leave to file the 7 July 28 submissions. Those submissions requested that eleven 8 listings in the Vaughnindex (nos. 7, 8, 75, 113, 12-22, 132, 9 136, 138, and 139), for which redaction had not previously 10 been sought, be redacted; sought redaction of one listing (no. 11 108), which had not been ordered disclosed; and renewed the 12 Government’s request to redact 26 listings (nos. 58-61, 63-65, 13 71, 73, 74, 76, 77, 83, 89-91, 95, 96, 98, 99, 102, 108, and 14 129), which we had not redacted. The submissions included two 15 affidavits from senior officials supporting the new and 16 renewed claims. In the July 23 Motion, the Government 17 contended that the Court had not “provide[] the government the 18 opportunity to redact classified or privileged entries” from 19 the Vaughnindex, see July 23 Motion at 3, a somewhat 20 surprising claim in view of the Government’s opportunity to 21 see, prior to filing, the Court’s original proposed opinion 22

8and the revised proposed opinion, both of which ordered 1 partial disclosure of Vaughnindex titles and descriptions. 2 Discussion 3 Before considering the specific new and renewed requests, 4 we encounter the Government’s general contention that the 5
OLC’s Vaughnindex was of a type never intended to be made 6 public. The Government advances the new argument that there 7 are two types of Vaughnindices. The July 28 submissions 8 distinguish the Vaughnindex submitted in this case, which was 9 classified, from a Vaughnindex that the Government says it 10 would have prepared for disclosure. The former, the 11 Government asserts, “was prepared with a view toward providing 12 the district court with a robust understanding of the nature 13 and range of issues implicated by the pending FOIA matter 14 before it. . . .” Affidavit of John E. Bies, Deputy Asst. 15 Atty. Gen., OLC, at 2, ¶ 2. The latter would “appropriately 16 protect[] privileged attorney-client communications and 17 Executive Branch deliberations in describing withheld 18 records.” Id. at 3, ¶ 5. 19 Although we appreciate the Government’s objective of 20 giving the District Court “a robust understanding” of the 21 issues, we would expect such a presentation to be made in 22

9supporting briefs and affidavits. With respect to so-called 1 “classical” Vaughnindices, see Keys v. U.S. Dep’t of Justice , 2 830 F.2d 337, 349 (D.C. Cir. 1987), which simply list titles 3 and descriptions of withheld documents, we have located no 4 FOIA decision mentioning two types of such indices – one to 5 assist a district court and another for public release – and 6 the Government has called none to our attention. We will 7 therefore continue, as we have thus far, to base our 8 disclosure rulings on the Vaughnindex that OLC has already 9 prepared, with such redactions as may be appropriate. See 10 Hayden v. National Security Agency , 608 F.2d 1381, 1384 (D.C. 11 Cir. 1979) (noting that some items in a Vaughnindex are 12 appropriately withheld from disclosure). 13 Furthermore, we emphasize that we are ordering disclosure 14 only of the titles and descriptions of the several documents 15 we identify by number. 2 The purpose of a Vaughnindex is to 16 afford a FOIA plaintiff an opportunity to decide which of the 17 listed documents it wants and to determine whether it believes 18 it has a basis to defeat the Government’s claim of a FOIA 19 exemption. See Keys , 830 F.2d at 349. Titles and descriptions 20

2 The titles and description must, of course, be keyed to the number of the listing, together with the one or more FOIA exemptions asserted by the Government. 10serve that purpose. Thus, the Government’s current request to 1 redact the names of the sender and/or recipient of some of the 2 listed documents (nos. 75, 113, 116, and 136) as identified in 3 the “To” and “From” columns of the Vaughnindex is moot; no 4 disclosures of the names of persons have been required. No 5 disclosures of any entries in the “Date(s),” “To,” or “From” 6 columns have been required. 7 Coming at last to the Government’s specific requests for 8 redaction, in light of the new submissions, we will make the 9 following additional redactions: in listings 7, 95, 116, and 10 117, the identity of the sending agency may be redacted from 11 the descriptions of these four listings; in listings 8, 58, 12 59, 60, 61, 62, 63, 64, 65, 71, 73, 76, 77, 83, 89-91, 95, 96, 13 98, 99, 102, 117, 120, 123, and 132, the titles, but not the 14 descriptions, may be redacted. The descriptions of these 15 listings reveal no information at all. We deny the requests 16 to redact the titles and descriptions of listings 74, 129, 17 136, 138, and 139, which either reveal no information or are 18 blank. 3 19 To recapitulate, as a result of the new redactions set 20 forth in this opinion, we require disclosure only of 21

3 By “blank” we do not mean redacted; the entry under the “Title/Subject” column is blank. 11(1) the titles and descriptions of listings 5, 7 (except 1 for the identity of the sending agency in the description), 9, 2 50, 74, 75, 110, 113, 116 (except for the identity of the 3 sending agency in the description), 117 (except for the 4 identity of the sending agency in the title and description), 5 121, 122, 129, 131, 133-243, 269, and 270, and 6 (2) the descriptions of listings 57, 58-61, 62, 63, 64, 7 65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83, 8 87, 88, 89-91, 92, 93, 95 (except for the identity of the 9 sending agency in the description), 96, 97, 98, 99, 100, 102, 10 103, 104, 118, 120, 123-28, 130, and 132. 4We require no 11 disclosure of the date or the name of any person or agency 12 that sent or received a listed document. Finally, as we have 13 repeatedly pointed out, we require no disclosure of the 14 content of any listed document. 15 Supplemental request for additional redactions from the 16 Vaughnindex granted in part and denied in part; petition for 17 panel rehearing again denied. 18

4 To whatever extent the summary of required disclosures in this opinion is inconsistent with the summary in our July 10, 2014, opinion, see The New York Times Co. v. U.S. Dep’t of Justice , 2014 WL 3396075 (2d Cir. July 10, 2014) *4 n.12, the summary in this opinion will govern. 12