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Case TitleThe New York Times Company et al v. Central Intelligence Agency
DistrictSouthern District of New York
CityFoley Square
Case Number1:2017cv06354
Date Filed2017-08-22
Date Closed2018-06-29
JudgeJudge Andrew L. Carter, Jr
PlaintiffThe New York Times Company
PlaintiffMatthew Rosenberg
Case DescriptionNew York Times reporter Matthew Rosenberg submitted a FOIA request to the CIA for records concerning President Trump's July 24 claim that the Washington Post had fabricated the facts concerning ending payments to Syrian rebels fighting Assad. After hearing nothing further from the agency, the New York Times and Rosenberg filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantCentral Intelligence Agency
Documents
Docket
Complaint
Opinion/Order [22]
FOIA Project Annotation: A federal court in New York has ruled that a tweet by President Donald Trump criticizing a Washington Post article reporting that Trump had decided to end the CIA's covert program to arm and train Syrian rebels battling the government of Bashar al-Assad, and an interview the next day with the Wall Street Journal in which Trump referred to his criticism of the Post article, did not constitute a public acknowledgement of the program to overcome the CIA's Glomar response neither confirming nor denying the existence of records about CIA involvement. The covert program was also referred to by General Raymond "Tony" Thomas, U.S. Special Operations Commander, during a talk at the 2017 Aspen Security Forum in response to a reporter's question. New York Times reporter Matthew Rosenberg filed a FOIA request with the CIA for all records pertaining to the program Trump had identified in his tweet criticizing the Post article. After the Times filed suit, the CIA issued a Glomar response, citing Exemption 1 (national security) and Exemption 3 (other statutes). The Times argued that Trump's tweet and Thomas's reference constituted public acknowledgment of the program, arguing that "there is no clear requirement that the President must follow the procedures outlined in E.O. 13526 [on classification] when declassifying information, and that a President may in fact not be bound by her own Executive Orders." Judge Andrew Carter noted that "it does not follow, however, that the courts are in a position to decide whether a President's statements, absent an unequivocal declaration that she is declassifying information, have the effect of declassifying secret information. Doing so would fly in the face of [the Supreme Court's decision in Dept of Navy v. Egan, 484 U.S. 518 (1988)] holding that the power to classify and declassify information bearing on national security rests with the Executive. Put another way, permitting courts to infer whether a President declassified information would transfer the President's constitutional authority to declassify to the Judiciary, undermining the basic tenets of the separation of powers." The Times argued that Trump's tweet and subsequent interview with the Journal revealed the existence of the program. Carter disagreed. He pointed out that "President Trump's comments to the Journal do not make any reference to classifying or declassifying information. In fact, his comments to the Journal were made in the context of his concern with intelligence leaks, which warrants the opposite inference than the inference drawn by the Times " that President Trump did not intend to declassify any intelligence." Turning to the issue of public acknowledgment, Carter noted that the Second Circuit's ruling in New York Times v. Dept of Justice, 756 F.3d 100 (2d Cir. 2014), held that publicly-available information need not be identical to the information being withheld to qualify as a public acknowledgement. But Carter concluded that "President Trump's tweet does not confirm the existence of records being requested let alone the program." Carter pointed out that the Second Circuit's earlier decision in Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2009), held that "a general acknowledgment of the existence of a program alone does not wholesale waive an agency's ability to invoke Glomar where certain aspects of the program remain undisclosed." He explained that here "Plaintiffs would need to point to more than President Trump's general statements regarding a program to arm and train Syrian rebels; there would need to be official acknowledgment that the CIA operated said program for the Times' request for records from the CIA to be viable under Second Circuit law."
Issues: Determination - Glomar response, Public domain
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-08-221COMPLAINT against Central Intelligence Agency. (Filing Fee $ 400.00, Receipt Number 0208-14040372)Document filed by The New York Times Company, Matthew Rosenberg.(McCraw, David) (Entered: 08/22/2017)
2017-08-222CIVIL COVER SHEET filed. (McCraw, David) (Entered: 08/22/2017)
2017-08-223RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Other Affiliate Grupo Finaciero Inbursa, S.A.B. de C.V. for The New York Times Company. Document filed by The New York Times Company.(McCraw, David) (Entered: 08/22/2017)
2017-08-224FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Central Intelligence Agency, re: 1 Complaint. Document filed by Matthew Rosenberg, The New York Times Company. (McCraw, David) Modified on 8/23/2017 (pc). (Entered: 08/22/2017)
2017-08-23CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Andrew L. Carter, Jr. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pc) (Entered: 08/23/2017)
2017-08-23Magistrate Judge Kevin Nathaniel Fox is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pc) (Entered: 08/23/2017)
2017-08-23Case Designated ECF. (pc) (Entered: 08/23/2017)
2017-08-23***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE-FILE Document No. 4 Request for Issuance of Summons,. The filing is deficient for the following reason(s): Information and Privacy Coordinator is not a party listed on the complaint caption title. Only list the defendant's name on the summons. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pc) (Entered: 08/23/2017)
2017-08-235REQUEST FOR ISSUANCE OF SUMMONS as to Central Intelligence Agency, re: 1 Complaint. Document filed by Matthew Rosenberg, The New York Times Company. (McCraw, David) (Entered: 08/23/2017)
2017-08-246ELECTRONIC SUMMONS ISSUED as to Central Intelligence Agency. (rch) (Entered: 08/24/2017)
2017-09-267ANSWER to 1 Complaint. Document filed by Central Intelligence Agency.(Cha-Kim, Stephen) (Entered: 09/26/2017)
2017-09-298ORDER SETTING CONFERENCE: Initial Conference set for 10/11/2017 at 11:00 AM in Courtroom 1306, 40 Centre Street, New York, NY 10007 before Judge Andrew L. Carter Jr., and as further set forth in this order. (Signed by Judge Andrew L. Carter, Jr on 9/28/2017) (ap) (Entered: 09/29/2017)
2017-10-11Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Pre-Motion Conference held on 10/11/2017. David McCraw and Kristina Konigisor for Plaintiff(s). Stephen S. Cha-Kim for Defendant(s). Defendant's Motion for Summary Judgment due by 11/8/2017. Plaintiff's Response/Cross Summary Judgment Motion due by 11/22/2017. Defendant's Reply due by 12/6/2017. Plaintiff's Reply due by 12/20/2017. (Court Reporter: Khris Sellin) (tdh) Modified on 10/12/2017 (rj). (Entered: 10/11/2017)
2017-11-089MOTION for Summary Judgment . Document filed by Central Intelligence Agency. Responses due by 11/22/2017(Cha-Kim, Stephen) (Entered: 11/08/2017)
2017-11-0810MEMORANDUM OF LAW in Support re: 9 MOTION for Summary Judgment . . Document filed by Central Intelligence Agency. (Cha-Kim, Stephen) (Entered: 11/08/2017)
2017-11-0811DECLARATION of Antoinette Shiner in Support re: 9 MOTION for Summary Judgment .. Document filed by Central Intelligence Agency. (Cha-Kim, Stephen) (Entered: 11/08/2017)
2017-11-2212CROSS MOTION for Partial Summary Judgment . Document filed by Matthew Rosenberg, The New York Times Company.(McCraw, David) (Entered: 11/22/2017)
2017-11-2213MEMORANDUM OF LAW in Support re: 12 CROSS MOTION for Partial Summary Judgment . . Document filed by Matthew Rosenberg, The New York Times Company. (McCraw, David) (Entered: 11/22/2017)
2017-11-2214DECLARATION of David E. McCraw in Support re: 12 CROSS MOTION for Partial Summary Judgment .. Document filed by Matthew Rosenberg, The New York Times Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(McCraw, David) (Entered: 11/22/2017)
2017-12-0415LETTER MOTION for Extension of Time to File Reply Brief addressed to Judge Andrew L. Carter, Jr. from Stephen Cha-Kim dated 12/4/2017. Document filed by Central Intelligence Agency.(Cha-Kim, Stephen) (Entered: 12/04/2017)
2017-12-0516ORDER granting 15 LETTER MOTION for Extension of Time to File Reply Brief addressed to Judge Andrew L. Carter, Jr. from Stephen Cha-Kim dated 12/4/2017. Document filed by Central Intelligence Agency. DEFENDANT'S REQUEST IS GRANTED. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 12/5/2017) (rjm) (Entered: 12/05/2017)
2017-12-05Set/Reset Deadlines: Responses due by 12/20/2017. Replies due by 12/20/2017. Reply to Response to Brief due by 1/10/2018. (rjm) (Entered: 12/05/2017)
2017-12-2017MEMORANDUM OF LAW in Opposition re: 12 CROSS MOTION for Partial Summary Judgment . and in Further Support of Defendant's Motion for Summary Judgment . Document filed by Central Intelligence Agency. (Cha-Kim, Stephen) (Entered: 12/20/2017)
2017-12-2018DECLARATION of Antoinette Shiner in Support re: 9 MOTION for Summary Judgment .. Document filed by Central Intelligence Agency. (Cha-Kim, Stephen) (Entered: 12/20/2017)
2017-12-2019DECLARATION of Stephen Cha-Kim in Support re: 9 MOTION for Summary Judgment .. Document filed by Central Intelligence Agency. (Attachments: # 1 Exhibit The White House, Report on the Legal and Policy Frameworks Guiding the United States Use of Military Force and Related National Security Operations, Dec. 2016)(Cha-Kim, Stephen) (Entered: 12/20/2017)
2017-12-2020NOTICE of Classified Filing. Document filed by Central Intelligence Agency. (Cha-Kim, Stephen) (Entered: 12/20/2017)
2018-01-1021REPLY MEMORANDUM OF LAW in Support re: 12 CROSS MOTION for Partial Summary Judgment . . Document filed by Matthew Rosenberg, The New York Times Company. (McCraw, David) (Entered: 01/10/2018)
2018-06-2922OPINION AND ORDER. For the foregoing reasons, Plaintiffs' motion for summary judgment is DENIED; Defendant's motion for summary judgment is GRANTED. SO ORDERED. re: 12 CROSS MOTION for Partial Summary Judgment filed by The New York Times Company, Matthew Rosenberg, 9 MOTION for Summary Judgment filed by Central Intelligence Agency. (Signed by Judge Andrew L. Carter, Jr on 6/29/2018) (rjm) (Entered: 07/02/2018)
2018-06-29Transmission to Judgments and Orders Clerk. Transmitted re: 22 Memorandum & Opinion to the Judgments and Orders Clerk. (rjm) (Entered: 07/02/2018)
2018-06-2923CLERK'S JUDGMENT: re: 22 Memorandum & Opinion. in favor of Central Intelligence Agency against The New York Times Company, Matthew Rosenberg. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated June 29, 2018, Defendant's motion for summary judgment is granted and Plaintiffs' motion for summary judgment is denied. (Signed by Clerk of Court Ruby Krajick on 06/29/2018) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 07/02/2018)
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by FOIA Project Staff
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