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New York Times Co. v. United States Department of Justice

United States District Court, S.D. New York

February 21, 2017



          J. PAUL OETKEN, District Judge

         Plaintiffs Charlie Savage and the New York Times Company (collectively “the Times”) filed this action against Defendant the United States Department of Justice (“DOJ” or “the Government”) under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). The Times seeks disclosure of five memoranda related to DOJ's investigation into whether certain overseas interrogations by the Central Intelligence Agency (“CIA”) and the deaths of detainees in CIA custody violated federal law. On September 30, 2015, this Court upheld the withholding of all but the five memoranda at issue in this case. (Dkt. No. 33 (“September Order”), at 17-22.) The parties have cross-moved for partial summary judgment on the question whether the requested memoranda are exempt from disclosure under FOIA Exemptions 1, 3, 5, 6, and 7(C). For the reasons that follow, the parties' cross-motions are granted in part and denied in part.

         I. Introduction

         Familiarity with the underlying facts and procedural history, as described in the Court's September Order, is presumed. (See Dkt. No. 33.)

         The five memoranda at issue were prepared by John Durham. (See Dkt. No. 49 at 5-6.) In August 2009, Mr. Durham, then an Assistant United States Attorney in Connecticut, was appointed by Attorney General Eric Holder to lead an investigation into whether federal laws had been violated in connection with the interrogation of certain detainees by the CIA at overseas locations. (Dkt. No. 43 (“Durham Decl.”) ¶¶ 5-6.) Mr. Durham primarily investigated the legality of the interrogation techniques used by CIA interrogators in 101 detainee cases and produced a final report on May 26, 2011 (“the Preliminary Review Memorandum”). (See Id. ¶ 7; Dkt. No. 44 at 3.) The Preliminary Review Memorandum concluded that, with the exception of two cases involving individuals who died while in custody, no criminal investigations should be pursued. (Durham Decl. ¶ 7.)

         Mr. Durham prepared two additional reports on the two remaining cases (“the Recommendation Memoranda”), which were submitted on December 14, 2010, and May 26, 2011. (Id. ¶ 8.) These cases involved two detainees who died while in the custody of the United States in overseas detention centers. (Id.) The Recommendation Memoranda informed the Attorney General that, under the governing standards, full criminal investigations were warranted and recommended a strategy for the investigation, including the targets of the investigation, the witnesses to interview, and the evidence to develop. (Id.) The Recommendation Memoranda also contained eleven exhibits, which are “a collection of historical, procedural, factual and evidentiary records, ” including “emails, letters, legal memoranda, reports, and depositions.” (Dkt. No. 42 (“Butler Decl.”) ¶ 13.) On June 30, 2011, the Attorney General accepted recommendations contained in the Preliminary Review Memorandum and the Recommendation Memoranda and announced his intention to open two full criminal investigations, closing the remaining matters. (Durham Decl. ¶ 9.)

         What followed were two full criminal investigations involving grand jury proceedings, including the issuance of grand jury subpoenas. (Id. ¶ 10.) However, no indictments were issued as a result of the investigations. (Id.) On March 14, 2012, and July 11, 2012, Mr. Durham submitted two reports to the Attorney General and Deputy Attorney General, each explaining his conclusion that the criminal investigations into the deaths of the two detainees should be closed without further action (“the Declination Memoranda”). (Id.) On August 30, 2012, the Attorney General announced the closing of the two investigations. (Id.)

         With respect to the five memoranda at issue, this Court previously concluded that the Attorney General's reliance-both in the June 2011 press release and the August 2012 statement-on the reasoning in the documents to justify his actions triggered the express adoption doctrine, thereby exempting them from protection under FOIA Exemption Five. (See Dkt. No. 33 at 17-22.) Therefore, in its September Order, the Court denied DOJ's motion for partial summary judgment as to those memoranda and granted the Times' motion. (Id.)

         In the September Order, however, the Court also “acknowledge[d] that the application of the express adoption doctrine to Durham's memoranda in this case presents challenging questions.” (Id. at 20.) It noted that it may well be the case that “DOJ should not be required to disclose those portions of the memorandum that do not support the reasoning on which the Attorney General publicly relied, ” and invited the parties to move for partial summary judgment on whether the memoranda must be disclosed in their entirety or only partially, and whether other FOIA exemptions preclude disclosure of these memoranda. (Id. at 20-22.)

         DOJ moves for partial summary judgment, asserting the documents were properly withheld in whole or in part under FOIA Exemptions 1, 3, 5, 6, and 7(C). The Times cross-moves for summary judgment that the memoranda should be made public, with limited redactions.

         II. Discussion

         The parties dispute both the application and scope of the exemptions. The Court first describes the proper legal standard for FOIA cases on summary judgment before turning to each of the exemptions claimed by DOJ and their application to the five memoranda at issue.

         A. Legal Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As with the previous round of summary judgment motions, “[b]oth parties move for summary judgment and neither party disputes the facts, so the question is which party prevails as a matter of law with respect to each set of documents.” (Dkt. No. 33 at 6.)

         FOIA cases are typically resolved on summary judgment. See Adamowicz v. IRS, 552 F.Supp.2d 355, 360 (S.D.N.Y. 2008) (citing Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)). This Court reviews de novo DOJ's decision to withhold information. See 5 U.S.C. § 552(a)(4)(B). To prevail, “the defending agency has the burden of showing . . . that any withheld documents fall within an exemption to the FOIA.” Carney, 19 F.3d at 812; see 5 U.S.C. § 552(a)(4)(B). The agency may satisfy this burden through “[a]ffidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption.” Carney, 19 F.3d at 812. These affidavits and declarations are “accorded a presumption of good faith.” Id. (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)) (internal quotation marks omitted). As such, where the agency's submissions are “adequate on their face, ” district courts “may ‘forgo discovery and award summary judgment on the basis of affidavits.'” Id. (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         However, “disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). Exemptions to disclosure are, therefore, afforded a “narrow compass, ” U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989), in light of the underlying purpose of FOIA, which “was enacted to facilitate public access to Government documents” and “was designed to ‘pierce the veil of administrative secrecy and open agency action to the light of public scrutiny, '” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Rose, 425 U.S. at 361). Indeed, FOIA is intended to “promote honest and open government and to assure the existence of an informed citizenry ‘to hold the governors accountable to the governed.'” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir. 1994)).

         DOJ argues that the memoranda at issue are exempt from disclosure, in whole or in part, under Exemptions 1, 3, 5, 6, and 7(C). First, the Court addresses whether DOJ has met its burden of demonstrating that four of the memoranda―the Recommendation and Declination Memoranda―were properly withheld in full under Exemption 3 on the basis that their disclosure would reveal matters occurring before the grand jury, pursuant to Federal Rule of Criminal Procedure 6(e). After concluding that the requirement of grand jury secrecy justifies the withholding of the Declination Memoranda only, the Court turns to the alternative bases presented by DOJ for withholding portions of the remaining three memoranda, including exemptions based on national security, privacy interests, and the scope of the express adoption doctrine.

         B. Exemption 3 - Documents Withheld Pursuant to Federal Rule of Criminal Procedure 6(e)

         The Court begins with Exemption 3, upon which the Government relies as a justification to withhold four of the five memoranda-the Recommendation and Declination Memoranda. (See Dkt. No. 44 at 8-11.)

         Exemption 3 allows an agency to properly withhold records that are “specifically exempted from disclosure by [another] statute” if the relevant statute either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(i)-(ii). To meet its burden under Exemption 3, DOJ must demonstrate that the claimed statute is an exemption statute under FOIA and that the withheld material falls within its scope. See CIA v. Sims, 471 U.S. 159, 167 (1985).

         Here, the Government relies on Federal Rule of Criminal Procedure 6(e) as the statute justifying its withholding of the four memoranda at issue. Rule 6(e) requires that all “matter[s] occurring before the grand jury” remain secret, with few exceptions that are not relevant to the present case. Rule 6(e) is treated as a statute for purposes of Exemption 3 “because the Congress has enacted it into positive law.” Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 206 (D.C. Cir. 2015); see Local 32B-32J, Serv. Emps. Int'l Union, AFL-CIO v. GSA, 1998 WL 726000, at *6 (S.D.N.Y. October 15, 1998) (“It is well established that [Fed. R. Crim. P. 6(e)], which imposes a general requirement of secrecy for information relating to the grand jury process, qualifies as an Exemption 3 withholding statute.”).

         The purpose of grand jury secrecy, as enshrined in Rule 6(e), is to ensure the proper functioning of the grand jury system. The Supreme Court has articulated a number of interests served by this secrecy:

First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979); see also In re Grand Jury Subpoena, 72 F.3d 271, 274 (2d Cir. 1995) (quoting same).

         Rule 6(e) does not expressly define what constitutes a “matter occurring before the grand jury, ” but, “[a]t its core, Rule 6(e)(2) protects from disclosure evidence that is actually presented to the grand jury.” United States v. Skelos, No. 15 Crim. 317, 2015 WL 6159326, at *9 (S.D.N.Y. Oct. 20, 2015). Rule 6(e) protection extends beyond the literal evidence presented directly to the grand jury, covering “anything that may tend to reveal what transpired before it”; however, it does not necessarily cover “information obtained independently of a grand jury investigation.” United States v. Eastern Air Lines, Inc., 923 F.2d 241, 244 (2d Cir. 1991). Rule 6(e)'s grand jury shield has thus been held to protect “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” Sec. and Exch. Comm'n v. Dresser Indus., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc); see ...

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