New York Times Co. v. United States Department of Justice
752 F.3d 123, 2014 WL 1569514, 42 Media L. Rep. (BNA) 1693 (2014)
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Rule of Law:
The government waives its right to withhold documents under Freedom of Information Act (FOIA) exemptions for national security and deliberative process when it officially discloses or makes public statements that reveal the substance of the legal reasoning contained within those documents.
Facts:
- Reporters for The New York Times, Charlie Savage and Scott Shane, submitted Freedom of Information Act (FOIA) requests to the Department of Justice's Office of Legal Counsel (OLC) for memoranda analyzing the legality of targeted killings of U.S. citizens suspected of terrorism.
- The American Civil Liberties Union (ACLU) submitted similar, broader FOIA requests to the Department of Justice (DOJ), Department of Defense (DOD), and Central Intelligence Agency (CIA) concerning the targeted killing program.
- The requests followed U.S. drone strikes that killed three U.S. citizens: Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki.
- In response, the government agencies largely refused to provide the requested documents, issuing "Glomar responses" (refusing to confirm or deny the existence of records) and "no number, no list" responses (acknowledging records exist but providing no descriptive information).
- During the dispute, the government acknowledged the existence of one key classified document, referred to as the "OLC-DOD Memorandum," which it claimed was exempt from disclosure.
- High-level government officials, including the Attorney General and the President, made numerous public statements asserting the lawfulness of the targeted killing program and referencing the legal advice provided by the OLC.
- The government officially released a separate document known as the "DOJ White Paper," which provided a detailed legal rationale for the targeted killing of a U.S. citizen who is a senior operational leader of al-Qaeda.
Procedural Posture:
- The New York Times Company and its reporters filed a FOIA lawsuit in the U.S. District Court for the Southern District of New York against the DOJ, DOD, and CIA.
- The ACLU filed a separate, similar FOIA lawsuit, which was consolidated with the New York Times case.
- Both the plaintiffs and the government defendants filed cross-motions for summary judgment.
- The District Court granted the government's motion for summary judgment, upholding the agencies' withholding of documents under various FOIA exemptions.
- The New York Times and the ACLU, as Plaintiffs-Appellants, appealed the District Court's judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the government waive its right under FOIA Exemptions 1 and 5 to withhold legal memoranda justifying targeted killings of U.S. citizens when high-level officials make public statements about the program's legality and officially release a separate document containing substantially similar legal analysis?
Opinions:
Majority - Newman
Yes, the government waives its FOIA exemptions for the legal analysis in the OLC-DOD Memorandum by making public statements and officially disclosing a document that contains substantially similar legal reasoning. The government's numerous public statements by senior officials, combined with the official release of the detailed DOJ White Paper, effectively placed the substance of the legal analysis in the public domain. The court reasoned that the government cannot publicly rely on the existence of secret legal advice to assure the public of a program's legality and then shield the core of that advice from scrutiny under FOIA. This official disclosure constitutes a waiver of Exemption 5 (deliberative process and attorney-client privileges) and Exemption 1 (national security classification) as it pertains to the legal analysis. Therefore, a redacted version of the OLC-DOD Memorandum, with operational details removed but the legal reasoning intact, must be disclosed.
Analysis:
This decision significantly clarifies the 'official disclosure' waiver doctrine under FOIA, particularly in the context of national security. It establishes that a waiver can occur not just through the release of the specific document sought, but through a combination of official statements and the release of documents with substantially similar content. This ruling places a check on the government's ability to selectively disclose information to justify controversial policies while withholding the underlying legal analysis. It forces agencies to be more cautious, as publicly justifying a secret program with reference to its legal underpinnings may compel the disclosure of that legal advice, thereby promoting greater transparency and accountability.
