N.Y. Times Co. v. DOJ, No. 14-3777, 2021 WL 3128874 (S.D.N.Y. July 23, 2021) (Oetken, J.)

N.Y. Times Co. v. DOJ, No. 14-3777, 2021 WL 3128874 (S.D.N.Y. July 23, 2021) (Oetken, J.)

Re:  Request for records concerning DOJ investigation into whether federal laws were violated in connection with certain overseas interrogations by CIA

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations:  "[T]he Court is satisfied by DOJ's presumably good-faith representation that it understands and has complied with the Second Circuit's mandate."  "In keeping with its holding that some of [former Attorney General Eric] Holder's public statements waived the work-product protection with respect to parts of the memoranda, the Second Circuit directed DOJ to 'release the portions of John Durham's memoranda and associated exhibits that relate to the conclusion that some of the detainees were not in CIA custody.'"  The court finds that "[t]he insertion of the phrase 'relate to' indicates that the Second Circuit intended DOJ to release not just statements of conclusion, but also the law and facts that informed those conclusions; any other reading would deprive the phrase of its ordinary meaning."  The court relates that "as the Government clarifies in its reply brief, DOJ does not dispute this interpretation."  "The Government likewise affirms that 'it has released the portions of the Preliminary Review Memorandum that relate to any such conclusion, except to the extent that such information was protected by another FOIA exemption.'"
   
• Litigation Considerations:  "[T]he Court considers[, and rejects,] the Government's argument that the mandate rule 'prevents Plaintiffs from relitigating the Government's Exemption 1 and 3 withholdings on remand.'"  "Far from relitigating the February Order, [plaintiff] relies on the Court's reasoning therein to argue that the names on page seven do not fall into any of the six listed categories, and therefore that they should not have been withheld."  "The Court did not rule at that level of specificity in its February Order, so the Times could not have raised the issue on appeal."
   
• Exemptions 1 & 3:  The court relates that "[t]he Government argues that [a list of] names [was] properly redacted under Exemption 1, which allows the withholding of properly classified information, and Exemption 3, as it incorporates the secrecy provisions of the CIA Act, 50 U.S.C. § 3507, and the National Security Act, 50 U.S.C. § 3024(i)(1)."  The court finds that "[r]evealing the names of people who are of interest to the CIA risks disclosing such details and offering to adversaries 'a picture of the breadth [and] capabilities . . . of the CIA's intelligence collection or activities.'"  "The individuals named . . . were found not to be in CIA custody but were nevertheless 'considered of sufficient intelligence interest to warrant analysis or assessment.'"  "The Government has therefore made a reasonably specific showing that disclosing these names would expose the CIA's 'specific intelligence interests and activities.'"  "In addition, the Government explains that . . . the names . . . appear not in a straightforward list but in 'paragraphs of text that contain discussions of classified information derived from CIA files regarding specific individuals, including CIA intelligence associated with those individuals and CIA operations and activities that took place in relation to those individuals.'"  "The Court has no reason to doubt the Government's claim that transforming the withheld text . . . into a list of names – by disclosing only the names and redacting the rest – would result in each name 'appear[ing] in the midst of a sea of material that has been redacted because it contains classified CIA information.'"  "The Government argues – and the Court agrees – that this would be enough to suggest that the individuals 'were considered of sufficient intelligence interest to warrant analysis or assessment,' which would in turn reveal something important about the 'CIA's intelligence priorities and tradecraft.'"  "In light of the substantial deference the Court must accord to [defendant's] affidavit, these statements suffice to establish that disclosing the names 'reasonably could be expected to result in damage to the national security.'"  "The Government has therefore met its burden to withhold the names in question under Exemption 1."
  
  The court finds that "[t]he Government has likewise met its burden with respect to Exemption 3."  "Here, the relevant statutes are the CIA Act, 50 U.S.C. § 3507, and the National Security Act, 50 U.S.C. § 3024(i)(1) – both of which qualify as Exemption 3 statutes."  "The CIA Act provides that the Director of National Intelligence 'shall be responsible for protecting intelligence sources or methods from unauthorized disclosure,' . . . while the National Security Act provides that 'the Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure' . . . ."  "Given that the Government has made a plausible case that disclosing the names on page seven would reveal information falling into two of these six categories, Exemption 3 offers an alternative basis for the Government to withhold the names in question."