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)

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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.

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

1 Supplemental opinion on petition for rehearing.

2 With respect to the supplemental request for additional

3 redactions from the required disclosure of titles and/or

4 descriptions of some items listed in the Vaughn index, request

5 granted in part and denied in part; petition for panel

6 rehearing again denied.

7 Sharon Swingle, Atty., Appellate

8 Staff, Civil Division, U.S.

9 Dept. of Justice, Washington,

1
1 D.C.; Preet Bharara, U.S.

2 Atty., Sarah S. Normand, Asst.

3 U.S. Atty., New York, N.Y.,

4 Stuart F. Delery, Asst. U.S.

5 Atty. General, Beth S.

6 Brinkman, Deputy Asst. U.S.

7 Atty. General, Douglas N.

8 Letter, and Matthew M.

9 Collette, Attys., Appellate

10 Staff, Civil Division, U.S.

11 Dept. of Justice, Washington,

12 D.C., on the petition, for

13 Defendants-Appellees.

14

15 No opposition papers requested.

16

17

18

19 JON O. NEWMAN, Circuit Judge:

20 After we ruled on the Government’s motion for panel

21 rehearing in this needlessly protracted FOIA litigation (the

22 Plaintiffs’ FOIA requests were made four years ago), the

23 Government moved for leave to file ex parte and in camera two

24 submissions (“July 28 submissions”) in support of its petition

25 for rehearing in banc. See Motion to Submit Ex Parte

26 Classified and Privileged Supplemental Declarations in Support

27 of Petition for Rehearing En Banc, filed July 23, 2014

28 (hereinafter “July 23 Motion”). On July 25, 2014, Chief Judge

29 Katzmann, treating the request as a one-judge procedural

30 motion, granted the motion, and the two new submissions were

31 filed ex parte and in camera on July 28, 2014. Because it is

2
1 the practice of this Court, prior to the convening of an in

2 banc court, to have all in banc submissions initially

3 considered by the relevant panel prior to circulation to the

4 active judges of the Court, the July 28 submissions have been

5 made available to the panel, which has elected to treat them

6 as a tardy supplemental request in support of the Government’s

7 June 5, 2014, petition for panel rehearing. Following the

8 filing of this supplemental opinion on the petition for panel

9 rehearing, the July 28 submissions and this opinion will be

10 circulated to the active judges (they have already received

11 the Government’s petition for rehearing in banc and this

12 panel’s prior opinions).

13 Background

14 Assessment of the requests in the July 28 submissions for

15 further redactions from the Vaughn index in addition to those

16 authorized by the panel’s July 10, 2014, opinion, which

17 denied, with several exceptions, rehearing on the bifurcated

18 Vaughn index issues, requires a brief summary of the pertinent

19 steps taken in this Court.

20 On April 15, 2013, The New York Times plaintiffs, in

21 their opening appellate brief, specifically included in their

22 request for relief that we should “direct DOJ to provide a

3
1 Vaughn index as to any additional documents [beyond the OLC2 DOD Memorandum] that were subject to the Glomar responses,”

3 Br. for NYTimes at 51 (emphasis added), a request repeated in

4 the June 28, 2013, reply brief at 24. Indeed, in its June 5,

5 2014, petition for rehearing, the Government acknowledged that

6 the Plaintiffs had “argued that the government should prepare

7 and produce a public Vaughn index.” Pet. for Reh’g at 12

8 (emphasis added). Thus, more than a year ago, the Plaintiffs

made it clear that they wanted a Vaughn index from DOJ.1 9 The

10 Government’s claim that the panel ordered release of a Vaughn

11 index “sua sponte,” see July 23 Motion at 1, is incorrect.

12 On June 14, 2013, the Government in its brief referred in

13 a footnote to “the Vaughn index submitted by the Office of

14 Legal Counsel as an attachment to a responsive e-mail.” Br.

15 for Appellees at 25 n.8. The brief defended the Government’s

16 use of DOJ’s no number, no list response (rather than a Vaughn

17 index).

18 On February 10, 2014, after oral argument, the panel

19 provided to the Government ex parte and in camera its proposed

20 opinion “to afford an opportunity to advise whether any

1 Although the Plaintiffs did not request the specific

Vaughn index that OLC had prepared, of which the Plaintiffs

were unaware, their request for a Vaughn index was clear.

4
1 classified information, not intended to be disclosed by this

2 opinion, has been inadvertently disclosed.” See The New York

3 Times Co. v. U.S. Dep’t of Justice, 752 F.3d 123, 144 n.23 (2d

4 Cir. 2014). That proposed opinion required disclosure of

5 OLC’s Vaughn index, but redacted a number of listings. See id.

6 at 143-44.

7 On March 13, 2014, the Government responded to that

8 opportunity by submitting a motion ex parte and in camera,

9 which requested redaction of just four listings in the Vaughn

10 index (nos. 252-54, 268), three of which we had already

11 indicated would be redacted. 

12 On March 17, 2014, we provided the Government ex parte

13 and in camera a revised version of the panel’s proposed

14 opinion, which still required disclosure of OLC’s Vaughn

15 index, subject to the four additional redactions.

16 On March 28, 2014, the Government responded ex parte and 

17 in camera with a request that certain portions of the revised

18 proposed opinion quoting public statements of senior officials

19 either be redacted or moved to a different location in the

20 opinion in order to preserve the Government’s opportunity for

21 further appellate review. This response to the revised

22 proposed opinion made no request to redact any additional

23 listings in the Vaughn index.

5
1 On April 21, 2014, the panel filed public and sealed

2 versions of its opinion. See The New York Times Co. v. U.S.

3 Dep’t of Justice, 752 F.3d 123 (2d Cir. 2014) (public

4 version). The statements identified in the Government’s March

5 28, 2014, submission were transferred from the public version

6 to the sealed version.

7 On May 28, 2014, we filed an order that, among other

8 things, reiterated the first three redactions from the Vaughn

9 index that were sought in the Government’s March 13, 2014,

10 submission, and agreed to the fourth one. See The New York

11 Times Co. v. U.S. Dep’t of Justice, Order at 5 (May 28, 2014). 

12 No other redactions had been requested in the Government’s

13 March 13, 2014, submission.

14 On June 5, 2014, the Government filed its petition for 

15 panel and in banc rehearing. The petition identified three

16 groups of listings in the OLC’s Vaughn index that it contended

17 should be redacted and asserted that “other” listings, not

18 identified by number, should also be redacted. See Petition at

19 14.

20 On June 9, 2014, the Court submitted to the Government ex

21 parte and in camera a proposed panel opinion on the petition

22 for rehearing, and on June 10, 2014, the panel issued an order

6
1 that (1) noted that the proposed opinion would bifurcate the

2 Vaughn index issues for later adjudication, and (2) directed

3 the Government to notify the Court by June 20, 2014, of any

4 objection “set forth with specificity” to the filing of the

5 proposed opinion. See The New York Times Co. v. U.S. Dep’t of

6 Justice, Order at 2 (June 10, 2010). On June 20, 2014, the

7 Government submitted ex parte and in camera a response to the

8 Court’s June 10, 2014, order. That response requested

9 redactions from the OLC-DOD Memorandum, which were

10 subsequently made.

11 On June 23, 2014, the panel filed an opinion partially

12 denying rehearing. See The New York Times Co. v. U.S. Dep’t

13 of Justice, 2014 WL 2854878 (June 23, 2014). That opinion

14 bifurcated the Vaughn index issues, made all of the

15 additionally requested redactions from the OLC-DOD Memorandum,

16 and deferred adjudication of the Vaughn index issues. See id.

17 at *1-*2. On June 23, 2014, the panel also filed a revised

18 version of its April 21, 2014, opinion. See The New York Times

19 Co. v. U.S. Dep’t of Justice, 2014 WL 2838861 (2d Cir. June

20 23, 2014).

21 On July 10, 2014, the panel filed an opinion adjudicating

22 the Vaughn index issues and denying the petition for

7
1 rehearing, with the exception that the panel further revised

2 its June 23, 2014, opinion to redact many of the titles and

3 descriptions for which the Government had sought exemption in

4 its petition for rehearing. See The New York Times Co. v. U.S.

5 Dep’t of Justice, 2014 WL 3396075 (July 10, 2014).

6 This was the state of affairs when on July 25, 2014, the

7 Government filed the July 23 Motion, seeking leave to file the

8 July 28 submissions. Those submissions requested that eleven

9 listings in the Vaughn index (nos. 7, 8, 75, 113, 12-22, 132,

10 136, 138, and 139), for which redaction had not previously

11 been sought, be redacted; sought redaction of one listing (no.

12 108), which had not been ordered disclosed; and renewed the

13 Government’s request to redact 26 listings (nos. 58-61, 63-65,

14 71, 73, 74, 76, 77, 83, 89-91, 95, 96, 98, 99, 102, 108, and

15 129), which we had not redacted. The submissions included two

16 affidavits from senior officials supporting the new and

17 renewed claims. In the July 23 Motion, the Government

18 contended that the Court had not “provide[] the government the

19 opportunity to redact classified or privileged entries” from

20 the Vaughn index, see July 23 Motion at 3, a somewhat

21 surprising claim in view of the Government’s opportunity to

22 see, prior to filing, the Court’s original proposed opinion

8
1 and the revised proposed opinion, both of which ordered

2 partial disclosure of Vaughn index titles and descriptions.

3 Discussion

4 Before considering the specific new and renewed requests,

5 we encounter the Government’s general contention that the

6 OLC’s Vaughn index was of a type never intended to be made

7 public. The Government advances the new argument that there

8 are two types of Vaughn indices. The July 28 submissions

9 distinguish the Vaughn index submitted in this case, which was

10 classified, from a Vaughn index that the Government says it

11 would have prepared for disclosure. The former, the

12 Government asserts, “was prepared with a view toward providing

13 the district court with a robust understanding of the nature

14 and range of issues implicated by the pending FOIA matter

15 before it. . . .” Affidavit of John E. Bies, Deputy Asst.

16 Atty. Gen., OLC, at 2, ¶ 2. The latter would “appropriately

17 protect[] privileged attorney-client communications and

18 Executive Branch deliberations in describing withheld

19 records.” Id. at 3, ¶ 5.

20 Although we appreciate the Government’s objective of

21 giving the District Court “a robust understanding” of the

22 issues, we would expect such a presentation to be made in

9
1 supporting briefs and affidavits. With respect to so-called

2 “classical” Vaughn indices, see Keys v. U.S. Dep’t of Justice,

3 830 F.2d 337, 349 (D.C. Cir. 1987), which simply list titles

4 and descriptions of withheld documents, we have located no

5 FOIA decision mentioning two types of such indices – one to

6 assist a district court and another for public release – and

7 the Government has called none to our attention. We will

8 therefore continue, as we have thus far, to base our

9 disclosure rulings on the Vaughn index that OLC has already

10 prepared, with such redactions as may be appropriate. See

11 Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C.

12 Cir. 1979) (noting that some items in a Vaughn index are

13 appropriately withheld from disclosure).

14 Furthermore, we emphasize that we are ordering disclosure

15 only of the titles and descriptions of the several documents

we identify by number.2 16 The purpose of a Vaughn index is to

17 afford a FOIA plaintiff an opportunity to decide which of the

18 listed documents it wants and to determine whether it believes

19 it has a basis to defeat the Government’s claim of a FOIA

20 exemption. See Keys, 830 F.2d at 349. Titles and descriptions

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.

10
1 serve that purpose. Thus, the Government’s current request to

2 redact the names of the sender and/or recipient of some of the

3 listed documents (nos. 75, 113, 116, and 136) as identified in

4 the “To” and “From” columns of the Vaughn index is moot; no

5 disclosures of the names of persons have been required. No

6 disclosures of any entries in the “Date(s),” “To,” or “From”

7 columns have been required. 

8 Coming at last to the Government’s specific requests for

9 redaction, in light of the new submissions, we will make the

10 following additional redactions: in listings 7, 95, 116, and

11 117, the identity of the sending agency may be redacted from

12 the descriptions of these four listings; in listings 8, 58,

13 59, 60, 61, 62, 63, 64, 65, 71, 73, 76, 77, 83, 89-91, 95, 96,

14 98, 99, 102, 117, 120, 123, and 132, the titles, but not the

15 descriptions, may be redacted. The descriptions of these

16 listings reveal no information at all. We deny the requests

17 to redact the titles and descriptions of listings 74, 129,

18 136, 138, and 139, which either reveal no information or are

blank.3 19

20 To recapitulate, as a result of the new redactions set

21 forth in this opinion, we require disclosure only of

3 By “blank” we do not mean redacted; the entry under the

“Title/Subject” column is blank.

11
1 (1) the titles and descriptions of listings 5, 7 (except

2 for the identity of the sending agency in the description), 9,

3 50, 74, 75, 110, 113, 116 (except for the identity of the

4 sending agency in the description), 117 (except for the

5 identity of the sending agency in the title and description),

6 121, 122, 129, 131, 133-243, 269, and 270, and

7 (2) the descriptions of listings 57, 58-61, 62, 63, 64,

8 65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83,

9 87, 88, 89-91, 92, 93, 95 (except for the identity of the

10 sending agency in the description), 96, 97, 98, 99, 100, 102,

103, 104, 118, 120, 123-28, 130, and 132.4 11 We require no

12 disclosure of the date or the name of any person or agency

13 that sent or received a listed document. Finally, as we have

14 repeatedly pointed out, we require no disclosure of the

15 content of any listed document.

16 Supplemental request for additional redactions from the

17 Vaughn index granted in part and denied in part; petition for

18 panel rehearing again denied.

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