13-422-cv
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: July 10, 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.

        On Petition for Rehearing.

        With respect to bifurcated issues concerning Vaughn index

issues, Petition DENIED, except that Court’s Revised Opinion,

filed June 23, 2014, is further revised to exclude 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, 98, 100, 103,

104, 108, 123-28, and 130, and to delete listings 244, 246,

                                              1
248, and 256 from page 62, lines 9-10, and the case is

REMANDED.

                             Sharon Swingle, Atty., Appellate
                               Staff, Civil Division, U.S.
                               Dept. of Justice, Washington,
                               D.C.;   Preet   Bharara,   U.S.
                               Atty., Sarah S. Normand, Asst.
                               U.S. Atty., New York, N.Y.,
                               Stuart F. Delery, Asst. U.S.
                               Atty.    General,    Beth    S.
                               Brinkman, Deputy Asst. U.S.
                               Atty.   General,   Douglas   N.
                               Letter,    and    Matthew    M.
                               Collette,   Attys.,   Appellate
                               Staff, Civil Division, U.S.
                               Dept. of Justice, Washington,
                               D.C., on the petition, for
                               Defendants-Appellees.

                             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, Nos. 13-422(L),

13-455(Con), 2014 WL 1569514 (2d Cir. Apr. 21, 2014), revised,

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., 2014 WL 2854878 (2d Cir.




                                2
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 2014 WL 2838861,

at    *18-19.     That      ruling     resulted     from   the     Appellants’

objections to the Appellees’ submission of so-called “Glomar”

and   “no   number,    no      list”   responses     to    portions    of     the

Appellants’ FOIA requests.

      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


      1
       That decision adjudicated issues concerning disclosure of
the OLC-DOD Memorandum.
      2
       Page references are cited to the typescript copy of the
Revised Opinion posted on the Court of Appeals website.

                                        3
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


    3
       In some cases, preparation of a Vaughn index is not
required if the agency submits a valid Glomar response,
refusing to confirm or deny the existence of requested records
because acknowledging even the existence of certain records
would reveal information entitled to be protected. See Wilner
v. National Security Agency, 592 F.3d 60 (2d Cir. 2009)
(upholding Glomar response to FOIA request for records
obtained under the Terrorist Surveillance Program). A Vaughn
index is also not needed if the “factual nature” of all parts
of the requested documents is known and the only dispute
concerns the availability of FOIA exemptions. Vaughn v. Rosen,
484 F.2d 820, 824 (D.C. Cir. 1973) (citing EPA v. Mink, 410
U.S. 73, 92-93 (1973)).



                               4
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


    4
      “In theory, it is possible that a trial court could
examine a document in sufficient depth to test the accuracy of
a government characterization, particularly where the
information is not extensive.     But where the documents in
issue constitute hundreds or even thousands of pages, it is
unreasonable to expect a trial judge to do as thorough a job
of illumination and characterization as would a party
interested in the case.” Vaughn, 484 F.2d at 825.
    5
       Cf. Donovan v. FBI, 806 F.2d 55, 59 (2d Cir. 1986)
(approving in camera inspection of small number of documents),
abrogated on other grounds by U.S. Dep’t of Justice v.
Landano, 508 U.S. 165, 170 (1993) .

                                  5
    A    Vaughn     index     typically       lists     the     titles     and

descriptions of the responsive documents that the Government

contends are exempt from disclosure.             In some cases detailed

affidavits from agency officials may suffice to indicate that

requested documents are exempt from disclosure. See, e.g.,

Citizens for Responsibility and Ethics in Washington v. U.S.

Dep’t   of   Justice,   746   F.3d    1082,     1088    (D.C.   Cir.     2014)

(“Agency affidavits sometimes take the form of a ‘Vaughn

index,’ but there is ‘no fixed rule’ establishing what such an

affidavit    must   look    like.”)       (citation    omitted);   Delaney,

Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C.

Cir. 1987) (“The materials provided by the agency may take any

form so long as they give the reviewing court a reasonable

basis to evaluate the claim of privilege.”).                    A so-called

“classical” Vaughn index, Keys, 830 F.2d at 349, like that in

the pending case, is one that lists titles and descriptions of

documents with cites to claimed FOIA exemptions for each

document listed.     See, e.g., Judicial Watch, Inc. v. Dep’t of

Justice, 365 F.3d 1108, 1128-36 (D.C. Cir. 2004) (Appendix

displaying Vaughn index).

    The titles and descriptions of documents listed in a

Vaughn index usually facilitate the task of asserting and


                                      6
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,



    6
      However, a description that appears to place a document
within an exemption may not be conclusive. For example, in
American Civil Liberties Union v. U.S. Dep’t of Justice, 655
F.3d 1, 18 (D.C. Cir. 2011), the District of Columbia Circuit
considered Vaughn index descriptions that “suggest[ed]” that
the listed documents were “internal drafts containing
information that may be covered by the deliberative-process or
work-product privileges cognizable under FOIA Exemption 5.”
Nevertheless, the Court remanded for further inquiry. Id. at
19.

                              7
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 especially important to disclose the

titles and descriptions of listed documents to facilitate the

adjudication of claimed exemptions, unless those materials


    7
      The identification of excluded email chains should have
included listing 105, which we now exclude from disclosure.
    8
      Despite the classification of the Vaughn index, those
titles and descriptions, not themselves subject to any FOIA
exemption, that we have ordered to be disclosed are obviously
segregable from the balance of the index.

                                8
themselves reveal sensitive information.

       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

       9
       The Petition incorrectly states that we have ordered
disclosure of “the index.” Petition 11. We have not. As the
Government appears to recognize, the dispute about the OLC’s
Vaughn index concerns whether titles and descriptions of some
specifically identified listings must be disclosed. Nor have
we ordered disclosure of Vaughn indices to be prepared by DOD
and CIA. We ordered these agencies to “submit Vaughn indices
to the District Court for in camera inspection and
determination of appropriate disclosure and appropriate
redaction.” Revised Opinion 65 (Conclusion ¶ 5), 2014 WL
2838861, at *20.

                                           9
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


                                       10
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 pre-decisional legal

advice, and then asserts that the content of information

provided to a lawyer is privileged. Petition 14.     However,

with few exceptions, the titles and descriptions of these

listings contain no information at all. See, e.g., Brinton v.

United States Dep’t of State, 476 F. Supp. 535, 537-40 (D.D.C.

1979) (revealing non-informational titles of documents claimed

to be protected by attorney-client privilege).   Although the

documents themselves, or at least portions of them,10 might be


    10
       See 5 U.S.C. § 552(b) (authorizing disclosure of
segregable portions of exempted document).

                              11
exempt from disclosure, there is no reason not to disclose the

non-informational titles and descriptions.                   Within the second

group,     taking   a      generous        view      of   what     constitutes

“information,” we will add to the items already excluded from

disclosure11 the titles, but not the descriptions, of listings

57, 62, 66, 68, 70, 78, 79, 88, 92, 93, 97, 98, 100, 103, 104,

108, 123-28, and 130, and, on our own reexamination of the

Vaughn index, exclude from disclosure the titles, but not the

descriptions, of listings 69 and 80.

    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

    11
        The Revised Opinion had already excluded from
disclosure listings 92, 94, 101, 103-04, and 106-09, which are
within the 57 listings the Government now seeks to exclude
from disclosure. See Revised Opinion (Conclusion ¶ 2), 2014 WL
2838861, at *20.

                                      12
“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), 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.


                                13
    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 (Conclusion ¶ 3), 2014 WL

2838861, at *20, to order the Appellee U.S. Department of

Justice to file a public version of its Vaughn index in

compliance with our Revised Opinion at 64-65 (Conclusion ¶ 2

(identifying listings not required to be disclosed)), 2014 WL

2838861, at *20, and this opinion.12 We will amend our Revised

Opinion to delete listings 244, 246, 248, and 256 from page

62, lines 9-10.    Apart from these rulings and those set forth

in our opinion of June 23, 2014, on the bifurcated issues

concerning the OLC-DOD Memorandum, the Petition for Rehearing




    12
       To avoid any misunderstanding, our combined rulings
mean that the filed Vaughn index will contain the titles and
descriptions of listings 5, 7-9, 50, 58-61, 63-65, 71, 73-77,
83, 89-91, 95, 96, 98, 99, 102, 110, 113, 116, 117, 120-22,
129, 131-243, and 269-270, and the descriptions of listings
57, 62, 66, 68, 69, 70, 78, 79, 88, 92, 93, 97, 100, 103, 104,
108, 123-28, and 130.

                               14
is DENIED, and the case is REMANDED.13




    13
       Any subsequent appeal following remand will be assigned
to this panel in the interests of judicial economy.

                              15
