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: June 23, 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 request for additional redactions to OLC-
DOD Memorandum and correction of Court’s April 21, 2014,
opinion, petition granted and revised public opinion filed
with redacted version of OLC-DOD Memorandum; with respect to
relief requested concerning Vaughn index, issues bifurcated
and adjudication of Vaughn index issues deferred.
1
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 requested at
this time.
JON O. NEWMAN, Circuit Judge:
The Government has filed a petition for rehearing1 with
respect to 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. April 21, 2014), which primarily concerned a
request under the Freedom of Information Act (“FOIA”) for
disclosure of a memorandum prepared by the Office of Legal
Counsel for the Department of Defense (“OLC-DOD Memorandum”).
1
A public version of the petition, filed on our docket,
makes redactions to protect the secrecy of material in the OLC-
DOD Memorandum that the Government contends warrant secrecy. A
sealed version of the petition included the material redacted
from the public version.
2
Our decision was reflected in two documents – a public
document and a sealed document.
The public document set forth the Court’s reasons for
ordering disclosure of the OLC-DOD Memorandum, but made a
number of redactions, at the Government’s request, to preserve
the Government’s opportunity to seek further appellate review
of our decision. The public document totally redacted the
text of the OLC-DOD Memorandum. The sealed document set forth
the unredacted text of the Court’s public document with the
redacted portions identified by double-underlining for ease of
identification by judges in the course of any further
appellate review. We explained that in the event our opinion
was not altered in the course of further appellate review, the
redactions in the public document would be restored.
The sealed document contained as Appendix A a redacted
version of the OLC-DOD Memorandum. The Court made these
redactions to maintain the secrecy of those portions of the
OLC-DOD Memorandum that appeared to warrant permanent secrecy
for reasons set forth by the Government in submissions to the
Court filed ex parte and in camera. Further explanation of
the public and sealed documents is set forth in the Court’s
Order filed May 28, 2014.
3
The petition for rehearing essentially presents two
challenges to our April 21 decision. The first is a request
to make further redactions from the OLC-DOD Memorandum. The
second is a request to withdraw that portion of the April 21
decision that required disclosure of the number, title, or
description of several documents listed in a classified Vaughn
index, See New York Times, typescript copy of opinion from
Second Circuit website (“typescript copy”) at 48-49, 51-52;
2014 WL 1569514, at *16-*17.
Because of the four-year delay that has ensued between
the filing of the Plaintiffs’ FOIA requests in June 2010 and
today, with even a redacted version of the OLC-DOD Memorandum
not yet disclosed, we will bifurcate the issues presented by
the petition for rehearing, see Coastal States Marketing, Inc.
v. New England Petroleum Corp., 604 F.2d 179, 182-86 (2d Cir.
1979) (bifurcating issues on appeal); cf. Fed. R. Civ. P.
42(b) (authorizing separate trials for separate issues), and
adjudicate in this opinion the request for further redactions
to the OLC-DOD Memorandum (along with related challenges to
specific passages in the sealed opinion that the Government
contends are either inaccurate or warrant permanent secrecy).
To the extent that the petition for rehearing requests relief
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with respect to the Vaughn index, we will defer decision to a
later date.
The petition for rehearing identifies several passages in
the redacted version of the OLC-DOD Memorandum we submitted to
the Government ex parte and in camera that the Government
contends warrant additional redaction. Petition 9-10.
Understandably, the Government has redacted from the public
version of its petition for rehearing the specifics of those
passages, but has fully identified them to the Court in a
sealed version of the petition, submitted ex parte and in
camera. The Government has also submitted ex parte and in
camera two versions of the OLC-DOD Memorandum One version
identifies the passages in the OLC-DOD Memorandum requested
for further redaction, with citations to claimed bases for
FOIA exemption; the other version of the OLC-DOD Memorandum
makes the additional redactions now sought by the Government
We will make all of the redactions in the OLC-DOD Memorandum
requested by the Government.
In our April 21 opinion we stated that we were making
redactions to preserve the Government’s opportunity for
further appellate review. We also stated that if our opinion
was not altered upon further appellate review, the redacted
5
portions of our opinion would be restored. Because the
Government’s petition makes no request that any of the
redacted portions of our April 21 opinion not be restored and
gives no indication that any further appellate review of
issues concerning disclosure of the redacted OLC-DOD
Memorandum is being sought, we will today file a revised
version of our April 21 opinion, restoring all of the redacted
material, except for items that we stated in our May 28 order
would remain redacted. In addition we will delete from our
April 21 sealed opinion a phrase, stated in error, that
appeared on the last two lines of page 44 of that opinion. We
will also modify the April 21 public opinion with respect to
disclosure of the titles and descriptions of certain numbered
documents in a classified Vaughn index to implement our order
of May 28.
With respect to the OLC-DOD Memorandum, the Government
states in its petition that “[i]f the Court grants the
petition for rehearing, this version of the OLC-DOD Memorandum
[i.e., the version with the additional redactions now
requested by the Government] is appropriate for public
filing.” Petition 6. Because, after bifurcation of the issues
concerning the OLC-DOD Memorandum, we are granting the
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Government’s petition to the extent that it requests relief
concerning the OLC-DOD Memorandum, the revised version of our
April 21 opinion filed today will include in Appendix A the
OLC-DOD Memorandum as redacted by both our original redactions
and the additional redactions now sought by the Government.2
2
This opinion and the revised public opinion to be filed
have been submitted to the Government ex parte and in camera to
be sure that no inadvertent disclosure has been made.
7