New York Times Co. v. DOJ, No. 13-422, 13-445, 2014 WL 1569514 (2nd Cir. Apr. 21, 2014) (Newman, J.)

New York Times Co. v. DOJ, No. 13-422, 13-445, 2014 WL 1569514 (2nd Cir. Apr. 21, 2014) (Newman, J.)

Re: Request for documents prepared by DOJ's Office of Legal Counsel setting forth government's reasoning as to lawfulness of targeted killings of United States citizens carried out by drone aircraft

Disposition: Affirming in part, reversing in part and remanding the district court's grant of defendant's motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  The Court of Appeals for the Second Circuit "agree[s] with the District Court's conclusions that the OLC–DOD Memorandum was properly classified and that no waiver of any operational details in that document has occurred."  However, "[w]ith respect to the document's legal analysis, we conclude that waiver of Exemptions 1 and 5 has occurred."  The court "note[s] initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as 'an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.'"  The court finds that "[a]fter senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,' and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred."  "'[T]he attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency's policy.'"  "Here, the Government has done so by publicly asserting that OLC advice 'establishes the legal boundaries within which we can operate.'"  The court does find that "[t]he loss of protection for the legal analysis in the OLC–DOD Memorandum does not mean, however, that the entire document must be disclosed."  The court notes that "[t]he Government's waiver applies only to the portions of the OLC–DOD Memorandum that explain legal reasoning."

However, with respect to two other documents, the court finds that "[n]o waiver of Exemption 5 has occurred with respect to these two documents."  The court explains that "these brief documents (two and four pages respectively) are informal and predecisional."  "One does not even identify the sender or the receiver."  "They mention legal authorities, but in no way resemble the detailed, polished legal analysis in the disclosed DOJ White Paper."

• Exemption 1:  The court holds that "[w]hatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper."  The court notes that "[m]uch of the above discussion concerning loss of Exemption 5 is applicable to loss of Exemption 1."  The court finds that under the three-part waiver test for Exemption 1, the disclosure at issue "is '''as specific as the information previously released''' [redacted], it '''match[es] the information previously disclosed,''' and was '''made public through an official and documented disclosure.'''"  The court states that it "recognize[s] that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government."  Additionally, the court states that it "also recognize[s] that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts."

• Litigation Considerations, Vaughn Index / Declaration:  The court holds that "[t]he Vaughn index submitted by OLC in camera must be disclosed, and DOD and CIA must submit classified Vaughn indices to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction."  The court rejects "[t]he Government's core argument to justify the Glomar and no number, no list responses, as it was with the effort to withhold the OLC–DOD Memorandum, is that identification of any document that provides legal advice to one or more agencies on the legality of targeted killings 'would tend to disclose the identity of the agency or agencies that use targeted lethal force against certain terrorists who are U.S. citizens.'"  However, the court also finds that "[a]s was also true of the OLC–DOD Memorandum, . . . the requirement of disclosing the agencies' Vaughn indices does not necessarily mean that either the number or the listing of all documents on those indices must be disclosed."  The court explains that "[s]ome, perhaps all, of the information in many of these documents might be protected as classified intelligence information or predecisional."

• Litigation Considerations, Adequacy of Search:  The court holds that "[t]he affidavit submitted by an OIP official, . . . easily meets [the] requirements [for an adequate search], and the November 3, 2011, cutoff date was reasonable as the date on which the search was commenced."  Additionally, the court notes that "a search is not inadequate merely because it does not identify all responsive records."