N.Y. Times Co. v. U.S. Defense Counterintelligence & Security Agency, No. 25-2333, 2026 WL 575357 (S.D.N.Y. Mar. 2, 2026) (Cote, S.J.)

N.Y. Times Co. v. U.S. Defense Counterintelligence & Security Agency, No. 25-2333, 2026 WL 575357 (S.D.N.Y. Mar. 2, 2026) (Cote, S.J.)

Re: Request for single, two-page document listing any security clearances granted to Elon Musk

Disposition:  Granting defendant’s motion for partial reconsideration; denying plaintiff’s motion for partial reconsideration

• Litigation Considerations; Exemption 1:      The court relates that “[t]he Government asks [the] Court to partially reconsider its October 8 Opinion and omit additional information from Page 2 of the record ‘to protect national security interests.’”  “Its application is granted.”  “It is true that the Government is attempting to take a second bite at the summary judgment apple by asking this Court to reconsider an Opinion on grounds that it should have raised earlier.”  “In this case, however, this Court concludes that it is appropriate to relax this ‘technical rule[ ] of judicial convenience’ in light of the national security considerations at play.”  “The Second Circuit has ‘consistently deferred to executive declarations predicting harm to the national security, and [has] found it unwise to undertake searching judicial review.’”      “And the second page of the record contains information that may implicate national security concerns and, to this Court’s knowledge, has not been publicly disclosed by Musk.”      “Thus, the Government’s motion for partial reconsideration is granted.”  “The Government is permitted to redact the two entries it identifies in its ex parte submission.”
   
• Litigation Considerations; Procedural Requirements, Searching for Responsive Records :  The court relates that “[plaintiff] raises essentially two arguments in seeking reconsideration of the October 20 Order approving the Government’s redefinition of the responsive record and many of its proposed redactions.”  “This motion is denied.”  “First, [plaintiff] contends that it was improper for the Government to request the exclusion of Page 1 from the responsive record.  “As the record now reflects, Pages 1 and 2 came from separate subsystems which serve different purposes.”  “Only Page 2 contains the list of security clearances requested by [plaintiff] on September 17, 2024.”  “Although the Government should have realized its error in producing the two pages as a single document before now, there is no reason to doubt its representations and it need not produce Page 1.”  “Second, [plaintiff] asserts that the additional redactions on Page 2 were approved by the Court in error because the Government did not specifically justify their withholding under Exemptions 6 and 7(C).”  “For the reasons already given, the Government may redact the two categories of security clearances.”  “As for the other items, that information is not responsive to the New York Times's request for ‘a list of [Musk’s] security clearances’ and ‘any details about the extent and purview of each of the clearances.’”