American Civil Liberties Union v. United States Department of Justice

15-2956-cv(L) American Civil Liberties Union v. United States Department of Justice   UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2016 Argued: October 25, 2016 Decided: December 20, 2016 Docket Nos. 15-2956(L), 15-3122(XAP) - - - - - - - - - - - - - - - - - - - - - - 1 AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL 2 LIBERTIES UNION FOUNDATION, 3 4 Plaintiffs-Appellants-Cross-Appellees, 5 6 v. 7 8 UNITED STATES DEPARTMENT OF JUSTICE, including 9 its component the Office of Legal Counsel, UNITED 10 STATES DEPARTMENT OF DEFENSE, including its 11 component U.S. Special Operations Command, CENTRAL 12 INTELLIGENCE AGENCY, 13 14 Defendants-Appellees-Cross-Appellants. - - - - - - - - - - - - - - - - - - - - - - 15 16 Before: NEWMAN, CABRANES, and POOLER, Circuit Judges. 17 18 Appeal and cross-appeal from the July 23, 2015, 19 judgment of the District Court for the Southern District of 20 New York (Colleen McMahon, now-Chief Judge) in a case 21 brought under the Freedom of Information Act. The judgment 22 granted in part and denied in part disclosure of documents 23 sought from the Office of Legal Counsel of the Department 1 1 of Justice, the Central Intelligence Agency, and the 2 Department of Defense concerning drone strikes. 3 Affirmed on the appeal, reversed on the cross-appeal, 4 and remanded for entry of a revised judgment. 5 6 Brett Max Kaufman, New York, NY 7 (Jameel Jaffer, Hina Shamsi, 8 Matthew Spurlock, American Civil 9 Liberties Union Foundation, New 10 York, NY, Colin Wicker, Dorsey & 11 Whitney LLP, Minneapolis, MN, on 12 the brief), for Plaintiffs- 13 Appellants-Cross-Appellees. 14 15 Sarah S. Normand, Asst. U.S. Atty., 16 New York, NY (Preet Bharara, 17 U.S. Atty., New York, NY, 18 Benjamin C. Mizer, Principal 19 Deputy Asst. Atty. General, 20 Matthew M. Collette, Sharon 21 Swingle, Civil Division, U.S. 22 Dep’t of Justice, Washington, 23 DC, on the brief), for 24 Defendants-Appellees-Cross- 25 Appellants. 26 27 JON O. NEWMAN, Circuit Judge: 28 This is the third appellate round of a case brought 29 under the Freedom of Information Act (“FOIA”). The case 30 began in February 2012 to challenge responses to FOIA 31 requests made in October 2011 to the Office of Legal 32 Counsel (“OLC”) of the Department of Justice (“DOJ”), the 33 Central Intelligence Agency (“CIA”), and the Department of 2 1 Defense (“DOD”). The requests were made by the American 2 Civil Liberties Union and the American Civil Liberties 3 Foundation (collectively “ACLU”). The requests were also 4 made by The New York Times and two of its reporters, but 5 they are not parties in the pending appeal. 6 ACLU appeals and DOJ cross-appeals from the July 23, 7 2015, judgment of the District Court for the Southern 8 District of New York (Colleen McMahon, now-Chief Judge). 9 That judgment ruled that OLC, CIA, and DOD were entitled to 10 withhold from disclosure a number of documents concerning 11 drone strikes -- lethal attacks by unmanned aircraft. The 12 judgment also ruled that OLC must disclose all or portions 13 of four documents1 and CIA must disclose all or portions of 14 three documents2 concerning such strikes. ACLU has narrowed 15 its request to 59 documents,3 including the seven documents 16 ordered disclosed in full or in part. ACLU’s appeal 17 challenges the District Court’s ruling to the extent it 18 upheld nondisclosure of 52 documents, and the Government’s 1 OLC 46, 50, 144, and 145. 2 CIA 59 tab C, 109, and 113. 3 OLC 1, 2, 8, 9, 46, 50, 64, 65, 66, 70, 71, 73, 75, 76, 83, 84, 90, 91, 95, 144, and 145; CIA 2, 3, 12, 15, 33, 34, 35, 36, 45, 59 tab C, 61, 62, 78, 94, 95, 96, 105, 106, 107, 109, 110, 111, 112, 113, 117, 118, 119, 120, 123, 124, 140, and 142; DOD 1, 31, 38, 39, 46, and 55. 3 1 cross-appeal challenges the ruling to the extent it ordered 2 disclosure, in whole or in part, of seven documents. 3 We conclude that none of the 52 withheld documents must 4 be disclosed, and that the seven documents ordered 5 disclosed may also be withheld. We therefore affirm on the 6 appeal, reverse on the cross-appeal, and remand for entry 7 of a revised judgment. 8 Litigation history. Our first encounter with this 9 litigation concerned consolidated appeals from the January 10 24, 2013, judgment of the District Court, dismissing on 11 motion for summary judgment two consolidated suits, one 12 brought by The New York Times and two of its reporters and 13 another brought by ACLU. See New York Times Co. v. U.S. 14 Dep’t of Justice, 915 F. Supp. 2d 508 (S.D.N.Y. 2013), 15 modified by 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013). On 16 those consolidated appeals, we ordered disclosure of a 17 redacted version of the “OLC-DOD Memorandum,” a 41-page 18 document, prepared by OLC, arguing the legal justification 19 for the drone strikes that killed Anwar al-Awlaki, Samir 20 Khan, and al-Awlaki’s son, Abdulrahman al-Awlaki. See New 21 York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 124 22 (Conclusion ¶ 1) (2d Cir. 2014) (revised opinion) (“NYTimes 4 1 I”). All three victims were United States citizens, either 2 by birth or naturalization. Pertinent to the pending 3 appeal, NYTimes I also ordered: 4 • OLC to disclose some of the titles and descriptions 5 of documents listed on its Vaughn index,4 id. (Conclusion 6 ¶ 2); 7 • OLC to submit various legal memoranda to the District 8 Court for “in camera inspection and determination of waiver 9 of privileges and appropriate redaction,” id. (Conclusion 10 ¶ 3) (italics added); and 11 • CIA and DOD to submit Vaughn indices to the District 12 Court for “in camera inspection and determination of 13 appropriate disclosure and appropriate redaction,” id. 14 (Conclusion ¶ 5). 15 In response to the Government’s petition for rehearing 16 of NYTimes I, we made a slight revision of that opinion, 17 made slight further redactions of the OLC-DOD Memorandum, 18 and permitted the Government to withhold from disclosure 4 A Vaughn index is a list of documents, identified by number, title, and description, that a Government agency determines are responsive to an FOIA request. The index states the one or more FOIA exemptions that the agency claims justify withholding each document. The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). 5 1 the titles and descriptions of some documents listed on the 2 OLC Vaughn index, confirming a withholding authorized by an 3 order issued May 28, 2014. See New York Times Co. v. U.S. 4 Dep’t of Justice, 756 F.3d 97, 99 (2d Cir. 2014) (first 5 opinion on Government’s petition for rehearing of NYTimes 6 I). We also bifurcated for later decision the Government’s 7 request for permission to withhold from disclosure 8 additional titles and descriptions of documents listed on 9 the OLC Vaughn index. See id. at 98-99. 10 Later, completing our ruling on the Government’s 11 petition for rehearing, we permitted the Government to 12 withhold from disclosure the titles and descriptions of 13 additional documents listed on the OLC Vaughn index and the 14 titles of other documents listed on that index. See New 15 York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 441 16 (2d Cir. 2014) (second opinion on Government’s petition for 17 rehearing of NYTimes I). We also ordered DOJ to make public 18 its previously classified OLC Vaughn index, as permissibly 19 redacted. See id. With the Government’s petition for 20 rehearing completely adjudicated, the District Court was 21 left with the task, as directed in NYTimes I, to consider 22 in camera whether several undisclosed OLC documents, sought 6 1 in the original FOIA requests, should be disclosed. See 2 NYTimes I, 756 F.3d at 124 (Conclusion ¶ 3). 3 On remand, the District Court ruled that ten of eleven 4 OLC documents, identified in an affidavit of an OLC 5 official, could be withheld from disclosure. See No. 1:11- 6 cv-09336-CM, Dkt. No. 52 (Oct. 31, 2014). The District 7 Court rejected the Government’s request to redact three 8 paragraphs from its opinion. See id., Dkt. No. 51. The 9 Court certified its rulings for immediate appeal under Rule 10 54(b) of the Federal Rules of Civil Procedure. See id. Dkt. 11 No. 52. 12 Those rulings precipitated the second appellate round 13 of this litigation. We ruled that the ten identified 14 documents could be withheld. See New York Times Co. v. U.S. 15 Dep’t of Justice, 806 F.3d 682, 690-91 (2d Cir. 2015) 16 (“NYTimes II”). We also ruled that the District Court could 17 make public, except for a few words, the three paragraphs 18 of its opinion the Government had sought to keep 19 undisclosed. See id. Finally, we upheld the Government’s 20 request to redact a small portion of the transcript of the 21 Government’s ex parte and in camera oral argument before 22 this Court. See id. 7 1 NYTimes II left for the District Court the laborious 2 task of examining the numerous OLC, CIA, and DOD documents 3 that the Government claimed were exempt from disclosure. 4 The Government had identified the OLC documents in its OLC 5 Vaughn index, which was originally classified. NYTimes I 6 ordered a redacted version of that index disclosed. 756 7 F.3d at 124 (Conclusion ¶ 2). The Government had identified 8 the CIA and DOD documents in its classified CIA and DOD 9 Vaughn indices. NYTimes I had ordered preparation of those 10 indices and their consideration by the District Court in 11 camera for determination of appropriate disclosure and 12 redaction. Id. (Conclusion ¶ 5). 13 Undertaking this task, the District Court examined the 14 documents listed on the OLC, CIA, and DOD Vaughn indices. 15 In a sealed unredacted draft opinion filed on May 13, 2015, 16 and superseded by a sealed unredacted final opinion filed 17 on June 23, 2015,5 the District Court required disclosure of 18 redacted versions of three OLC documents, OLC 46, OLC 144, 5 The District Court explained in its July 17, 2015, order concluding the litigation that the June 23, 2015, opinion “completely superseded” the Court’s May 13, 2015, draft opinion. The July 17, 2015, order slightly amended the June 23, 2015, unredacted opinion and also reported that a redacted version of the June 23, 2015, opinion had been filed “yesterday,” i.e., July 16, 2015. SPA 162-64. 8 1 and OLC 145; the complete text of OLC 50;6 the complete text 2 of Tab C to CIA 59; and redacted versions of CIA 109 and 3 CIA 113. See ACLU v. U.S. Dep’t of Justice, No. 12 Civ. 4 794(CM), 2015 WL 4470192, at *13-14, *23, *27, *39, *42-43, 5 *45 (S.D.N.Y. July 16, 2015) (redacted opinion). 6 In its redacted opinion, the District Court identified 7 six facts, Nos. 1-5 and 7, that it ruled (with one slight 8 qualification of No. 7 not material to this appeal) had 9 been officially acknowledged. See id. *4-5. The Court also 10 identified a seventh fact (No. 6), see id. at *5, for 11 consideration by this Court as to whether it had been 12 officially acknowledged, see id. at *6. The District Court 13 ruled that the six acknowledged facts must be disclosed “to 14 the extent that these specific facts appear in documents on 15 the Agencies’ Vaughn Indices and can be segregated from 16 other, properly exempt information.” Id. at *5. The Court 6 Both the District Court’s June 23, 2015, draft opinion and its July 16, 2015, revised opinion identified this OLC document as No. 50. See SPA 58, 59. However, the District Court’s July 17, 2015, order, recapitulating its rulings, see SPA 164, and the judgment, see SPA 166, identified the document as No. 150. The Government’s brief identified the document as No. 50. See Br. for Government at 60-62. We are satisfied that 50 is the correct number and that 150 is a typographical error. This is clear from the description of the document in the District Court’s draft and revised opinion and the fact that there is no OLC No. 150. 9 1 stated that disclosure of these six facts is “[a]pplicable 2 to [a]ll [d]ocuments,” id. at *2, but qualified that 3 statement to make clear that the disclosure requirement 4 does not apply to any document reviewed by the Court in 5 camera, “because the [C]ourt took those facts into account 6 when reviewing the document,” id. at *15. With the 7 exception of the seven documents ordered to be disclosed, 8 the District Court ruled that all other requested documents 9 need not be disclosed. 10 With respect to the six facts, the District Court 11 ordered OLC, CIA, and DOD to make a “segregability review” 12 of each document that the Court had not reviewed in camera 13 and then represent either that the six facts had not been 14 officially acknowledged, or, if so acknowledged, that the 15 facts cannot reasonably be segregated from information 16 exempt from disclosure. See id. at *6-7. The Government 17 responded with classified declarations from OLC, CIA, and 18 DOD, which contended that segregation of all six facts 19 could not be made. [CSA 492, 516, 544] On July 16, 2015, 20 the District Court issued an order agreeing with the 10 1 agencies’ contention. See No. 1:12-cv-00794-CM, Dkt. No. 2 129 (July 16, 2015).7 3 Uncertain as to the status of three documents -- CIA 4 61, CIA 96, and DOD 1, this Court requested the Government 5 to produce them ex parte for our in camera inspection. No. 6 15-2956, Dkt. No. 166 (2d Cir. Oct. 21, 2016). We have 7 examined them. 8 The District Court’s ruling that 52 documents should be 9 withheld and that all or part of seven documents should be 10 disclosed is now fully submitted for our review. 11 Discussion 12 Although the history of this litigation is regrettably 13 complicated, disposition of the pending appeal and cross- 14 appeal is fairly straightforward. In general, continued 15 withholding of documents challenged on ACLU’s appeal and 16 reversal of the District Court’s disclosure rulings 17 challenged on the Government’s cross-appeal are warranted 18 either because disclosure would reveal information that 7 After an inquiry from this Court, see No. 15-2956, Dkt. 136 (2d Cir. Aug. 30, 2016), a response from the District Court, see No. 1:12-cv-00794-CM, Dkt. No. 142 (Oct. 20, 2016), and a further inquiry from this Court, see No. 15-2956, Dkt. No. 168 (2d Cir. Oct. 21, 2016), the District Court confirmed this conclusion, see No. 1:12-cv-00794-CM, Dkt. No. 144 (Oct. 21, 2016). 11 1 should remain secret or because the documents are 2 predecisional drafts protected by FOIA Exemption 5. See 3 Brennan Center for Justice v. U.S. Dep’t of Justice, 697 4 F.3d 184, 206-07 (2d Cir. 2012); Lahr v. National 5 Transportation Safety Board, 569 F.3d 964, 981-84 (9th Cir. 6 2009); Abdelfattah v. U.S. Dep’t of Homeland Security, 488 7 F.3d 178, 183-84 (3d Cir. 2007). 8 ACLU’s appeal. We appreciate the difficulty ACLU 9 encounters in challenging the District Court’s decision to 10 withhold from disclosure 52 documents. ACLU has not seen 11 either the documents or the redacted portions of the 12 District Court’s opinion explaining the Court’s reasons. 13 Having carefully considered each of these documents, we 14 conclude that each of the District Court’s withholding 15 decisions was correct. The documents are protected by one 16 or more FOIA exemptions and no waiver of secrecy has 17 occurred with respect to any of them. Our ruling does not 18 turn on the issue of so-called “working law,” an issue 19 contested by ACLU. 20 The seven facts. At oral argument, it became clear that 21 the issue as to the seven facts identified by the District 22 Court in its July 16, 2015 opinion was whether the 12 1 Government was asserting the right to withhold any 2 documents because these facts were contained in them. To 3 assist in resolving that issue the District Court directed 4 the relevant agencies to make a segregability review to 5 determine if the six acknowledged facts could be segregated 6 from protected portions of the documents in which they are 7 contained. As explained above, the District Court ruled 8 that the agencies’ submissions persuasively showed that 9 segregation could not be made. We agree with that ruling. 10 No further consideration of these six facts is needed. 11 With regard to the seventh fact, which the District 12 Court left for our consideration, we conclude that it is 13 unnecessary for the resolution of this appeal to determine 14 whether it has been officially acknowledged. The Government 15 did not assert the right to withhold any of the documents 16 at issue in this appeal on the ground that those documents 17 contained the seventh fact. Accordingly, even if we were to 18 conclude that the Government publicly acknowledged the 19 seventh fact, we would not order disclosure of any document 20 on that basis. No further consideration of the seventh fact 21 is required. 13 1 Government’s cross-appeal. The seven documents ordered 2 disclosed by the District Court require individual 3 consideration. 4 OLC 46: This document, ordered disclosed in redacted 5 form, is an informal memo, attempting to summarize a 6 meeting at which legal advice was discussed. Indicating the 7 preliminary nature of the memo, the agency staff member who 8 prepared it asked the recipients to correct anything that 9 the writer had tried to summarize. The document is 10 predecisional under Exemption 5 and therefore need not be 11 disclosed. 12 OLC 50: This document is a draft of two paragraphs that 13 the document preparer suggested might be included in the 14 DOJ White Paper, the document, first leaked and then 15 officially disclosed, which provided a brief legal 16 justification for drone strikes. See NYTimes I, 756 F.3d at 17 110. Ultimately, the two paragraphs were not included in 18 the White Paper. The District Court considered the two 19 paragraphs similar to the legal advice contained in the 20 White Paper and the OLC-DOD Memorandum, as to which 21 privileges had been waived by disclosure. We acknowledge 22 some similarities, but agree with the Government that the 14 1 document is demonstrably a draft. ACLU previously explained 2 that it is not seeking “drafts in this litigation,” and 3 stated that “[i]f the Court determines that [the 4 description of OLC 50 as a draft is] accurate, [then it] no 5 longer seeks th[at] document.” Reply Br. for ACLU at 17 6 n.11. Accordingly, because OLC is a draft protected by 7 Exemption 5 as predecisional and no longer sought by ACLU, 8 OLC 50 need not be disclosed. 9 OLC 144: This document, ordered disclosed in part, is a 10 set of suggested talking points concerning the legal basis 11 for drone strikes. We agree with the Government that the 12 document is predecisional and need not be disclosed. 13 Government officials do not lose the protection of 14 Exemption 5 by considering informally how to present a 15 legal analysis. 16 OLC 145: This is an internal outline of classified 17 facts and some fragmentary discussion of legal advice, 18 prepared in connection with the drafting of legal advice. 19 Although the District Court properly redacted portions of 20 the document, the remainder is also entitled to remain 21 protected as predecisional under Exemption 5. The document 22 need not be disclosed. 15 1 CIA 59 tab C: This is a draft of a proposed op-ed 2 article that suggested some ways of explaining the 3 Government’s legal reasoning in support of drone strikes. 4 It was never published. Although it reveals some of the 5 unnamed writer’s thinking about legal justification for 6 drone strikes, it is a draft and for that reason 7 predecisional. It need not be disclosed. 8 CIA 109 and CIA 113: These documents, which the 9 District Court disclosed in part, are informal and 10 preliminary. The second is unsigned and undated. Despite 11 the redactions, some phrases entitled to secrecy remain. 12 Although both appear to have been written after the action 13 they comment on, they are nonetheless predecisional with 14 respect to the formulation of a policy or a clear legal 15 position. Neither document need be disclosed. 16 Conclusion 17 Chief Judge McMahon ably performed the burdensome task 18 of examining scores of documents in this protracted 19 litigation, which now appears to be concluded. Despite our 20 slight disagreement with her assessment of a few of these 21 documents, we appreciate her diligence and the helpful 22 explanations in her sealed opinion. 16 1 On ACLU’s appeal, the judgment is affirmed; on the 2 Government’s cross-appeal, the judgment is reversed; the 3 case is remanded for entry of a revised judgment. 17