The New York Times Company v. United States Department of Justice

14-4432-cv(L) 14-4764-cv(Con) The New York Times Company v. United States Department of Justice 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2014 4 Argued: June 23, 2015 Decided: October 22, 2015 5 6 Docket No. 14-4432-cv, 14-4764-cv - - - - - - - - - - - - - - - - - - - - - - 1 THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, 2 SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, 3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 4 Plaintiffs-Appellants, 5 v. 6 UNITED STATES DEPARTMENT OF JUSTICE, UNITED 7 STATES DEPARTMENT OF DEFENSE, CENTRAL 8 INTELLIGENCE AGENCY, 9 Defendants-Appellees. 10 - - - - - - - - - - - - - - - - - - - - - - 11 12 Before: NEWMAN, CABRANES, and POOLER, Circuit Judges. 13 14 Appeal from the October 31, 2014, decision and order of the 15 United States District Court for the Southern District of New 16 York (Colleen McMahon, District Judge), adjudicating, pursuant 17 to a remand from this Court, Freedom of Information Act requests 18 for documents prepared by the Office of Legal Counsel of the 19 United States Department of Justice concerning targeted killings 20 by drone aircraft. The District Court ordered disclosure of all 1 1 or portions of some documents and denied disclosure of other 2 documents. The appeal also concerns disclosure of redacted 3 portions of the District Court’s sealed opinion and disclosure 4 of redacted portions of the transcript of the June 23, 2015, oral 5 argument present by the Government to the Court ex parte and in 6 camera. 7 Judgment AFFIRMED; redacted portions of District Court 8 opinion to remain UNDISCLOSED, except for three paragraphs (as 9 redacted pursuant to Part IV of this opinion) that the District 10 Court wishes to disclose; and redacted portions of transcript of 11 June 23, 2015, oral argument to remain UNDISCLOSED; case 12 REMANDED. 13 David E. McCraw, The New York Times 14 Company, New York, N.Y. (Jeremy A. 15 Kutner, New York, N.Y., on the 16 brief), for Plaintiffs-Appellants 17 The New York Times Company, 18 Charlie Savage, and Scott Shane. 19 20 Jameel Jaffer, American Civil 21 Liberties Union Foundation, New 22 York, N.Y. (Hina Shamsi, Dror 23 Ladin, American Civil Liberties 24 Union Foundation, New York, N.Y., 25 Eric Ruzicka, Colin Wicker, 26 Michael Weinbeck, Dorsey & Whitney 27 LLP, Minneapolis, Minn., on the 28 brief), for Plaintiffs-Appellants 29 American Civil Liberties Union and 30 American Civil Liberties Union 31 Foundation. 2 1 Sarah S. Normand, Asst. U.S. Atty., 2 New York, N.Y. (Preet Bharara, 3 U.S. Atty., New York, NY, Benjamin 4 C. Mizer, Acting Asst. U.S. Atty. 5 General, Matthew M. Collette, 6 Sharon Swingle, Thomas Pulham, 7 Civil Division, U.S. Dep’t of 8 Justice, Washington, D.C., on the 9 brief), for Defendants-Appellees. 10 11 (Lawrence S. Lustberg, Joseph A. 12 Pace, Gibbons P.C., Newark NJ, for 13 amici curiae Senators Ron Wyden, 14 Rand Paul, Jeff Merkley, and 15 Martin Heinrich, in support of 16 Plaintiffs-Appellants) 17 18 JON O. NEWMAN, Circuit Judge: 19 This appeal from the October 31, 2014, decision and order of 20 the District Court for the Southern District of New York (Colleen 21 McMahon, District Judge) concerns the second round in a 22 protracted Freedom of Information Act (“FOIA”) litigation seeking 23 disclosure of documents related to targeted killings by the use 24 of drone aircraft. On the prior appeal, see New York Times Co. 25 v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (“NYTimes 26 I”), we ordered disclosure of a 2010 document known as the “OLC- 27 DOD Memorandum,” a 41-page legal opinion prepared by the Office 28 of Legal Counsel (“OLC”) in the Department of Justice for the 29 Department of Defense (“DOD”), advising as to the legality of 30 targeted drone attacks. See id. at 112-21. We ruled that prior 31 disclosures by senior officials of the Government, plus the 3 1 release of what was referred to as “the White Paper,” resulted 2 in waiver of all applicable exemptions for protection of the OLC- 3 DOD Memorandum. 4 We also remanded the case to the District Court to review in 5 camera several other documents prepared by the OLC that the 6 Government had identified as responsive to the pending FOIA 7 requests but had withheld on various grounds. We remanded for 8 “determination of waiver of privileges and appropriate 9 redaction.” Id. at 124. The District Court ruled, in a partially 10 redacted opinion, that the Government had properly invoked 11 Exemption 1 (documents classified by executive order), Exemption 12 3 (intelligence sources and methods protected by statute), and 13 Exemption 5 (document protected by the deliberative process or 14 attorney-clients privilege), and that most of these documents 15 should not be disclosed.1 That ruling is challenged on the 1 As explained in our prior decision, see NYTimes I, 756 F.3d at 104, Exemption 1 permits an agency to withhold information that is “‘specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy’” if that information has been “‘properly classified pursuant to such Executive order.’” ACLU v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (quoting U.S.C. § 552(b)(1)). Exemption 3 permits an agency to withhold information that is “specifically exempted from disclosure by statute, see 5 U.S.C. § 552(b)(3)(A)(I), (ii), such as pursuant to 50 U.S.C. § 3024-1(i)(1), which exempts from disclosure “intelligence sources and methods,” or 50 U.S.C. § 3507, which exempts the CIA from “any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” Exemption 5 authorizes an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. 4 1 pending appeal. The appeal also concerns disclosure of the 2 redacted portions of the District Court’s opinion, including 3 three paragraphs that the District Court wishes to disclose, and 4 disclosure of redacted portions of the transcript of the June 23, 5 2015, oral argument presented by the Government to this Court ex 6 parte and in camera. 7 Background 8 The background of the litigation was extensively set forth 9 in NYTimes I, 756 F.3d at 104-11, and need not be repeated here. 10 We recount only developments since our prior decision. 11 Paragraph (3) of the “Conclusion” of NYTimes I provided that 12 “other legal memoranda prepared by OLC and at issue here must be 13 submitted to the District Court for in camera inspection and 14 determination of waiver of privileges and appropriate redaction.” 15 Id. at 124. In conformity with that direction, the District 16 Court examined in camera eleven sealed documents, identified as 17 Exhibits A, B, C, E, F, G, H, I, J, K, and L to a sealed 18 affidavit submitted by John E. Bies, Deputy Assistant Attorney 19 General in the OLC. Exhibit D is the OLC-DOD Memorandum, already 20 disclosed. § 552(b)(5). Exemption 5 encompasses documents protected by, among other things, the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005). 5 1 On October 31, 2014, the District Court filed under seal its 2 opinion adjudicating claims for disclosure of these documents. 3 The District Court’s opinion was sealed because, in discussing 4 the reasons for refusing disclosure of most of the documents at 5 issue, the Court necessarily discussed matters entitled to remain 6 secret. The Court submitted its opinion to the Government ex 7 parte for classification review. The Government requested 8 redaction of several portions of the District Court’s opinion. 9 The District Court agreed to all of the redactions proposed by 10 the Government with the exception of three paragraphs on page 9 11 of the Court’s opinion.2 Judge McMahon continued those 12 paragraphs under seal, however, to abide the outcome of appellate 13 review of her decision to disclose them. We will recount below 14 the District Court’s rulings with respect to each of the eleven 15 documents. The District Court certified its rulings for 16 immediate entry of a partial judgment under Rule 54(b) of the 17 Federal Rules of Civil Procedure. 18 After the Appellants and four United States Senators, as 19 amici curiae, filed their briefs, the Government filed a redacted 20 version of its brief and filed an unredacted version ex parte and 21 in camera. The Government later sought the opportunity to 22 present oral argument to the Court ex parte and in camera. We 2 The Government did not request redaction of the first sentence of the first paragraph. 6 1 granted that request and heard Government counsel ex parte and 2 in camera on June 23, 2015, just prior to hearing both sides in 3 open court. On June 25, we entered two sealed orders, both sent 4 to the Government ex parte. These orders afforded the Government 5 an opportunity to submit ex parte and in camera a brief and a 6 supplemental declaration concerning matters that the Court had 7 raised with Government counsel at the June 23 ex parte and in 8 camera hearing. On July 7, the Government filed ex parte and in 9 camera a transcript of the June 23 argument, together with a 10 redacted version of that transcript, which was filed in the 11 normal course (“June 23 redacted tr.”). See Dkt. No. 119. On 12 July 17, the Government filed its response to our June 25 orders, 13 submitting, ex parte and in camera, a brief and a supporting 14 affidavit. On the same day, we asked the Government to submit 15 a letter justifying the transcript redactions. The Government 16 responded with a letter of July 24, 2015, filed ex parte and in 17 camera. 18 Discussion 19 We emphasize at the outset, as we did before, see NYTimes I, 20 756 F.3d at 103, that the lawfulness of drone strikes is not at 21 issue. This appeal, like the prior one, primarily concerns 22 whether documents considering such lawfulness must be disclosed. 23 7 1 I. The Eleven OLC Documents. 2 Exhibits A, B, and C. The District Court ruled that these 3 documents were required to remain secret, but that the legal 4 reasoning contained in Exhibit B had been incorporated into 5 Exhibit K, which was appropriate for disclosure. We agree with 6 the District Court’s decision not to disclose Exhibits A, B, and 7 C, which contain intelligence information that was properly 8 exempted. 9 Exhibit E.3 This OLC document, as described by the 10 Government, is “the provision of legal advice in 2002 provided 11 to the President’s close legal advisor about the [E]xecutive 12 [O]rder 12333.”4 Executive Order 12333, captioned “United States 13 Intelligence Activities,” was signed by President Reagan on Dec. 14 4, 1981. The District Court withheld Exhibit E partly on the 15 ground that most of it discusses topics exempted from FOIA 16 disclosure and not subject to any waiver. We agree with the 17 District Court’s ruling in that respect. As to one portion of 18 Exhibit E that discusses a topic referred to in subsequent 19 statements of senior Government officials, the District Court 20 withheld that portion because the discussion “does not 21 correspond” to any legal analysis that has been disclosed. 3 Exhibit D is the OLC-DOD Memorandum, previously disclosed. 4 June 23 redacted tr. at 12. 8 1 At issue is whether the Government waived its right to 2 invoke Exemption 5 as the basis for withholding portions of the 3 legal analysis in Exhibit E by subsequently making public 4 statements on topics related to some of the analysis contained 5 in that document. Our initial concern with disclosure of the 6 portion that is similar to subsequent disclosures is the 7 substantial time interval between the date of Exhibit E and the 8 subsequent arguably similar disclosures. In NYTimes I, several 9 relevant statements of Government officials were made before the 10 date of the July 16, 2010, OLC-DOD Memorandum,5 and other 11 statements were made less than three years afterwards.6 With 12 respect to Exhibit E, there is no statement of a Government 13 official before the date of that exhibit that even arguably 14 supports waiver of protection, and the earliest dates of 15 subsequent statements that even arguably support waiver were made 16 eight years after the date of Exhibit E.7 5 March 18, 2010, statement of then-CIA director Leon Panetta, see NYTimes I, 756 F.3d at 118; March 25, 2010, statement of then-Legal Adviser of the State Department Harold Hongju Koh, see id. at 114; June 27, 2010, statement of then-CIA director Leon Panetta, see id. at 118. 6 Nov. 8, 2011, White Paper, see NYTimes I, 756 F.3d at 110-11 & n.9; February 7, 2013, statement of John O. Brennan, id. at 111; statement of then-Attorney General Eric Holder, id. 7 See footnote 6, supra. 9 1 We do not mean to imply that a Government official’s public 2 statement made after preparation of a legal opinion can never 3 result in waiver of protection for that opinion. Our reliance 4 on some statements made soon after the date of the OLC-DOD 5 Memorandum dispels such a broad implication. However, the 6 passage of a significant interval of time between a protected 7 document and a Government official’s subsequent statement 8 discussing the same or a similar topic considered in the document 9 inevitably raises a concern that the context in which the 10 official spoke might be significantly different from the context 11 in which the earlier document was prepared. Even if the content 12 of legal reasoning set forth in one context is somewhat similar 13 to such reasoning that is later explained publicly in another 14 context, such similarity does not necessarily result in waiver. 15 Moreover, ignoring both the differences in contexts and the 16 passage of a significant interval of time would risk requiring 17 Government officials to consider numerous arguably similar 18 documents prepared long before and then measure their public 19 words very carefully so as not to inadvertently precipitate a 20 waiver of protection for those earlier documents. 21 In this case, it would be difficult to explain in detail why 22 the context of the legal reasoning in Exhibit E differs from the 10 1 context of the public explanations given by senior Government 2 officials eight years later without revealing matters that are 3 entitled to protection. We can say, however, that Exhibit E 4 concerns Executive Order 12333, and that Order is not mentioned 5 in any of the public statements we relied on in NYTimes I to 6 support waiver of protection for the OLC-DOD Memorandum. We can 7 also say that Exhibit E concerns actions and governing legal 8 standards different from those later publicly discussed. We 9 conclude that these differences suffice to preclude a ruling that 10 waiver has occurred, and we therefore affirm the District Court’s 11 decision not to disclose Exhibit E. 12 Exhibits F, G, H, I, and J. These OLC documents discuss 13 another document that remains entitled to protection. It would 14 be difficult to redact any arguably disclosable lines of legal 15 analysis from these documents without disclosing the contents of 16 that other document, and for that reason the District Court 17 properly withheld them from disclosure. 18 Exhibit K. This document is a redacted version of Exhibit B. 19 The District Court properly ordered it disclosed because the 20 Government waived any privilege in the redacted legal analysis. 21 Exhibit L. This document is an email that circulated the 22 White Paper to DOJ personnel, together with the White Paper 11 1 itself. The White Paper has already been disclosed, and the 2 email contains no legal analysis. The District Court properly 3 withheld it from disclosure. 4 Unable to direct arguments to the specific documents, which 5 they have not seen, the Appellants make the general argument that 6 the legal reasoning in OLC opinions is “working law,” see Brennan 7 Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d 8 Cir. 2012), not entitled to be withheld under FOIA Exemption 5. 9 Whether or not “working law,” the documents are classified and 10 thus protected under Exemption 1, in the absence of statements 11 by public officials that constitute waiver of all FOIA 12 exemptions. 13 Moreover, these OLC documents are not “working law.” At 14 most, they provide, in their specific contexts, legal advice as 15 to what a department or agency “is permitted to do,” Electronic 16 Frontier Foundation v. U.S. Dep’t of Justice, 739 F.3d 1, 10 17 (D.C. Cir. 2014) (emphasis in original), but OLC “did not have 18 the authority to establish the ‘working law’ of the [agency],” 19 id. at 8, and its advice “is not the law of an agency unless the 20 agency adopts it,” id. The one document ordered disclosed in 21 Brennan Center was not deemed “working law,” 697 F.3d at 203, and 22 was ordered disclosed only because the agency had “adopted [it] 12 1 by reference,” id. No agency of the Government has adopted by 2 reference any of the documents at issue in this case. 3 To recapitulate, we agree with all of the District Court’s 4 rulings with respect to the documents at issue, with the result 5 that only Exhibit K is to be disclosed. As explained above, 6 Exhibit K, which the District Court ordered disclosed, is a 7 redacted version of Exhibit B. 8 II. Disclosure of the Redacted Portions of the District 9 Court’s Opinion 10 The Appellants contend that the redacted portions of the 11 District Court’s opinion should be disclosed. Judge McMahon 12 herself urges us to permit disclosure of three paragraphs on page 13 9 of her opinion, which she maintained under seal only to assure 14 that those paragraphs remained sealed in the event that a 15 reviewing court disagreed with her decision to make them public. 16 The Appellants are understandably in a difficult position to 17 present their argument for disclosure of the redacted portions 18 of the District Court’s opinion because they have not seen them. 19 The Appellants’ basic argument is that the First Amendment 20 requires public access to normally public documents, such as 21 court opinions. They rely on United States v. Erie County, 763 22 13 1 F.3d 235 (2d Cir. 2014), and Lugosch v. Pyramid Co., 435 F.3d 110 2 (2d Cir. 2006). 3 Erie County concerned compliance reports filed with a court 4 administering a stipulation governing prison conditions. As the 5 Court noted, “[E]very aspect of this litigation is public.” Erie 6 County, 763 F.3d at 241. By contrast, the pending case concerns 7 classified documents sought pursuant to FOIA requests, and the 8 District Court’s sealed opinion explains why, with limited 9 exception, those documents must remain under seal. Lugosch 10 concerned documents supporting and opposing a summary judgment 11 motion in litigation between private parties. Concerns related 12 to classified documents were not involved in either case. “As 13 a general rule,” there is no constitutional right of access “to 14 traditionally nonpublic government information.” McGehee v. 15 Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983). Appellants are 16 therefore not entitled to disclosure of those portions of the 17 District Court’s opinion that discuss information properly 18 withheld under an applicable FOIA exemption. 19 The Appellants further contend that even if the District 20 Court was entitled to seal its opinion, the Court failed to make 21 the findings warranting sealing that are required by Erie County, 22 763 F.3d at 239, and Lugosch, 435 F.3d at 120, both of which 14 1 restated the findings requirement first announced in In re New 2 York Times, 828 F.2d 110, 116 (2d Cir. 1987) (“[D]ocuments may 3 be sealed if specific, on the record findings are made 4 demonstrating that closure is essential to preserve higher values 5 and is narrowly tailored to serve that interest.”) (internal 6 quotation marks omitted). But, as Erie County explained, the 7 findings requirement for sealing documents arises only after “a 8 First Amendment right of access to judicial documents is found.” 9 763 F.3d at 239. In any event, we require no findings in this 10 case to understand that the District Court sealed its opinion to 11 avoid disclosure of classified information. 12 We turn then to the three paragraphs of the District Court’s 13 opinion that Judge McMahon thought need not be withheld. Those 14 paragraphs briefly mention hypothetical situations that might 15 raise issues of waiver of attorney-client privilege with respect 16 to a non-compete clause in an employment contract. In an 17 unredacted order, she stated that the three paragraphs “contain 18 not a whit of classified material (the Government does not 19 suggest otherwise)” and would not “tend to reveal any classified 20 material.” SPA 176. 21 The Government contends that the three paragraphs at issue, 22 although containing no classified information, can be understood 15 1 to imply a fact that should not be disclosed. That fact is the 2 nationality of a person who has been considered as a possible 3 target of a drone attack. However, the three paragraphs neither 4 say nor imply anything about such a nationality. At most, the 5 paragraphs, by considering various permutations of a law firm’s 6 advice concerning one or more different employment contracts, 7 might be understood to imply that drone attacks have been 8 considered for persons other than al-Awlaki, the subject of the 9 OLC-DOD Memorandum. That fact, of course, is widely known, see, 10 e.g., W.J. Hennigan & David S. Cloud, “U.S. airstrikes in Somalia 11 signal a more direct role against Shabab,” Los Angeles Times, July 12 23, 2015 (reporting six drone strikes in one week, quoting U.S. 13 military officials),8 and has been publicly acknowledged by 14 senior United States military personnel, see, e.g., Lolita C. 15 Baldor, “U.S. Drone Strike In Afghanistan Kills ISIS Recruiter 16 Who Was Once Held In Guantanamo,” Huffington Post (Feb. 10, 2015) 17 (reporting statement of Pentagon spokesman Rear Admiral John 18 Kirby).9 19 8 Available at http://www.latimes.com/world/la-fg-us-airstrikes- somalia-20150723-story.html. 9 Available at http://www.huffingtonpost.com/2015/02/10/drone- kills-guantanamo-de_n_6656530.html. 16 1 The flaw in the Government’s argument is that a reader of 2 the District Court’s redacted opinion, with the three paragraphs 3 restored, could not identify the name or nationality of the 4 potential target. Indeed, the District Court’s opinion redacts 5 the entire discussion of the document that mentions that target’s 6 name, and that document remains undisclosed. To guard against 7 even the remote possibility that a reader might conceivably infer 8 the nationality of the potential target from the three paragraphs 9 at issue, we will order redaction of the few words in the first 10 of these paragraphs to which the Government, on classification 11 review, has called to our attention. See Point IV, below. 12 We agree with the District Court that the three paragraphs 13 need not be redacted, other than as ordered in Point IV, below, 14 and that the remainder of the Court’s opinion may remain sealed. 15 III. Disclosure of Redacted Portions of the June 23 16 Transcript 17 Because the Appellants have not seen the words that the 18 Government has redacted from the transcript of the June 23 ex 19 parte and in camera hearing, they obviously have had no 20 opportunity to argue for disclosure of these redactions. And 21 they have not seen the Government’s ex parte and in camera letter 22 of July 24 supporting those redactions. Our own ability to 17 1 explain our rulings with respect to the redactions is also 2 handicapped, but for a different reason: if redacted words touch 3 on matters entitled to remain secret, we can state a conclusion, 4 but little, if anything, else. 5 Initially, we note some concern as to the need for the 6 Government’s ex parte and in camera oral argument. When asked 7 at the closed hearing why such argument was needed at this stage 8 of the litigation but not at the earlier stage, the Government 9 offered two different reasons. First, the Government noted that 10 many of the bases for withholding the documents at issue are 11 classified or statutorily protected. Then we were told the 12 reason was that a large portion of the District Court’s opinion 13 was redacted. Neither reason precluded the Government from fully 14 presenting its arguments in briefs and affidavits, submitted ex 15 parte and in camera, as it has done throughout this litigation. 16 Any future request for ex parte and in camera oral argument will 17 have to be persuasively supported, even if the request is 18 unopposed, as it was in this case. 19 Nearly all of the redactions made by the Government in the 20 June 23 transcript refer to the contents of Exhibit E. Because 21 we have upheld nondisclosure of that Exhibit in this opinion, we 22 will uphold nondisclosure of those redactions. 18 1 One other redaction in the June 23 transcript has nothing to 2 do with Exhibit E. In response to the panel’s request for 3 identification of those in attendance at the closed hearing, 4 eight Government personnel named themselves and their 5 affiliations; one provided only a name. The Government has 6 redacted that name and the name and agency affiliation of one 7 other person. 8 We have substantial reservations about the Government’s 9 decision to bring to a closed ex parte hearing personnel whose 10 identity and affiliation it will not disclose to opposing 11 counsel, who were excluded from the hearing. Of course, the 12 Government is entitled to keep secret the name of any undercover 13 operative, but there is no claim that the two people whose names 14 have been redacted serve in such capacity, and it would be a rare 15 case where such persons would need to attend an appellate 16 argument. The Government’s justification for nondisclosure of 17 the two names is that they are CIA personnel, whose identities 18 are protected by the Central Intelligence Act and Exemption (3) 19 of FOIA, 5 U.S.C. § 552(b)(3). 20 Not having previously established ground rules concerning 21 disclosure of the identities of those attending the closed 22 hearing, we think it would be unfair to disclose the two names 19 1 that the Government has redacted. However, if the need for a 2 closed ex parte hearing should arise in the future, the 3 Government should either not bring personnel whose identities may 4 not be disclosed, or present, prior to the hearing, a substantial 5 justification for including such personnel. 6 IV. Government’s Classification Review 7 After affording the Government an opportunity for 8 classification review of our proposed opinion, we received, ex 9 parte and in camera, requests for a correction of a misstatement, 10 redactions from the opinion, and requests to redact some words 11 from the three paragraphs on page 9 of the District Court’s 12 opinion that Judge McMahon stated should be disclosed. 13 With respect to our proposed opinion, we have corrected the 14 misstatement and made all of the redactions requested by the 15 Government, except those concerning the three paragraphs at issue 16 on page 9 of the District Court’s opinion. With respect to the 17 requested redactions from the District Court’s opinion, we rule 18 as follows: in the third line of the first full paragraph on page 19 9 of that opinion, the eight words following the word “opine” 20 will be redacted; in the 6th line of that paragraph, the six 21 words following the word “lawyer” will be redacted; in the 22 seventh line of that paragraph, “an” shall be changed to “a” and 20 1 the next two words will be redacted. With these redactions, the 2 three paragraphs at issue may be disclosed. We recognize that 3 these redactions render the resulting wording somewhat awkward. 4 We leave it to Judge McMahon on remand, if she chooses, to make 5 further redactions or some rephrasing of her language to smooth 6 out the wording without restoring the words we have deleted. 7 The Government has requested that we either (1) submit our 8 revised opinion for further classification review or (2) maintain 9 our opinion under seal for 30 days to permit the Government an 10 opportunity to seek further appellate review. We will pursue the 11 second alternative and have instructed the Clerk accordingly. 12 Conclusion 13 We conclude that all the OLC documents at issue shall remain 14 undisclosed, except Exhibit K (the redacted version of Exhibit 15 B), which the District Court has authorized to be disclosed; that 16 the redacted portions of the District Court’s opinion shall 17 remain undisclosed, except for the three paragraphs on page 9, 18 (as redacted pursuant to Part IV of this opinion), which the 19 District Court wishes disclosed; and that the redactions from the 20 transcript of the June 23 hearing may remain undisclosed. 21 We therefore affirm the judgment, authorize the District 22 Court to disclose the three redacted paragraphs on page 9 of its 23 opinion (as redacted pursuant to Part IV of this opinion), and 21 1 maintain undisclosed the redacted portions of the District 2 Court’s opinion and the June 23, 2015, transcript. 3 AFFIRMED and REMANDED. 22