    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



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 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



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 1   Vaughn index as to any additional documents [beyond the OLC-

 2   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

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

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 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


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 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


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 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


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 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


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 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

16   we identify by number.2      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

19   blank.3

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,

11   103, 104, 118, 120, 123-28, 130, and 132.4       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.

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