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Case TitleThe New York Times Company v. Department of Defense
DistrictSouthern District of New York
CityFoley Square
Case Number1:2020cv00043
Date Filed2020-01-03
Date ClosedOpen
JudgeJudge Edgardo Ramos
PlaintiffThe New York Times Company
Case DescriptionThe New York Times submitted a FOIA request to the Department of Defense for records concerning President Trump's revised set of principles, standards, and procedures for counter-terrorism kill-or-capture operations, replacing President Obama's guidance. The agency acknowledged receipt of the request but after hearing nothing further from the agency, the New York Times filed suit.

DefendantDepartment of Defense
Documents
Docket
Complaint
Opinion/Order [23]
FOIA Project Annotation: U.S. District Court Judge Edgardo Ramos of the Southern District of New York has opened the slightly cracked door that was first breached by the D.C. Circuit's decision in ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) in which the D.C. Circuit found that it was no longer plausible for the CIA to claim that it had no interest in the use of drones in targeted killings, rejecting the CIA's Glomar defense neither confirming nor denying the existence of records and requiring instead that the agency process the request. Ramos' decision opened that door marginally further by rejecting the Defense Department's Glomar defense in responding to requests from the ACLU and the New York Times for records concerning the 2017 decision by the Trump administration to relax the restriction contained in a 2013 revision in the Obama administration's covert operations procedures because the revision had been disclosed by the U.S. Army's investigatory report of a 2017 incident in Niger in which four U.S. soldiers were killed in an ambush. However, while the template set out in ACLU v. CIA will probably continue to expand, requiring agencies to admit to the existence of records that are often commonly known by the media and researchers is something of a pyrrhic victory since those records probably remain subject to exemption claims. Ramos' ruling came in a case brought by the ACLU and the New York Times for records concerning the updated policies on covert operations. The 2013 revision by the Obama administration, known as a Presidential Policy Guidance, was dated May 22, 2013. A redacted version of the policy revision was released to the ACLU as part of 2016 FOIA litigation. Explaining the Obama PPG, Ramos indicated that it "prioritized capturing suspects and limiting lethal operations. . .It directed that these operations only be attempted when the United States has identified and located the target with near certainty, and when there is a near certainty that non-combatants will not be harmed." Further, the Obama guidance required that such operations go through a multi-step interagency review, including the National Security Council, before being approved by the President. In October 2017, the New York Times reported that Trump issued Principles, Standards and Procedures, relaxing the Obama guidance by making it simpler to approve such operations. As a result, the ACLU filed a FOIA request for the Trump PSP. In June 2019, the Defense Department disclosed a redacted version of its investigation report of the October 2017 ambush in Niger, which killed four U.S. soldiers and four Nigerien partners. In discussing whether U.S. forces involved in the Niger operation followed White House policy, the report indicated that "On 3 October 2017, the Executive Policy governing direct action against terrorists on the continent of Africa was codified in the 'U.S. Policy Standards and Procedures for the use of force in counterterrorism operations outside the United States and areas of active hostilities.'" As a result of the investigation report, the ACLU asked DOD to confirm the existence of the updated guidance. Several months later, the New York Times also filed suit based on its October 2019 FOIA request for the updated guidance. Because of their similarity, the ACLU and Times litigation was consolidated and assigned to Ramos. The government argued that its Glomar response remained tenable even after the disclosure of the existence of the updated guidance in the Army investigation report, while the ACLU and the New York Times contended that the Army report on the Niger ambush had waived the government's ability to sustain its Glomar defense. Ramos explained that "the Court finds the information at issue, when viewed on its own, was properly withheld under Exemption 1. But the Niger ambush report 'shifted the factual groundwork' on which the Court examines the propriety of the FOIA Exemptions. Although disclosure of the report does not qualify as an 'official disclosure' that would waive the agencies' ability to invoke Exemption 1, it does make the continued use of that exemption illogical and implausible." The ACLU and the New York Times argued that the public affidavit submitted by Ellen Knight, then-Senior Director of Records Access and Information Security Management at the NSC, did not provide enough information to justify the government's Glomar response. Ramos indicated that "alone, this public declaration would be insufficient to show that the agencies' invocation of Exemption 1 was logical and plausible." But after reviewing the classified sections he noted that "the agencies have shown that potential harm to the national security could result if the existence of updates to the PPG are disclosed is logical and plausible." However, Ramos rejected the government's claim that the records were also protected under Exemption 3, citing the protection for sources and methods in the National Security Act. Ramos pointed out that "although the Court is aware of a 'broad sweep' of the Act in protecting intelligence sources and methods, it is the burden of the agencies to educate the Court on the connection between those concepts within the context of the case. . . [T]he Court credits the potential harm to national security of disclosure, but it does not see " through its review of the classified and unclassified Knight Declaration " the connection between that harm and the disclosure of intelligence sources and methods protected by the National Security Act." In the Second Circuit, the official disclosure doctrine is based on the test articulated in Wilson v. CIA, 586 F.3d 171 (2nd Cir. 2009), finding that an official disclosure occurs only if the information deemed to have been officially disclosed is as specific as the information previously disclosed, matches the information previously disclosed, and was made public though an official documented disclosure. Applying the Wilson test here, Ramos noted that "the record discussed in the Niger ambush report specifically discloses that the PSP supersedes previous guidance regarding the use of direct action by U.S. forces, and is therefore responsive to the ACLU's request. An interpretation that suggests otherwise would require purposeful distortion of the report's plain meaning. The information in the report is as specific as and matches the information the ACLU and the Times seek here." Ramos found the disclosure ancillary to the purposes of the report. He noted that "the purpose of the disclosure in the Niger ambush report was to communicate the findings and recommendations coming from an investigation into the Niger ambush, not to discuss changes to the direct-action rules created by the Obama administration." He observed that "finding a Defense Department report by a major general and approved by the head of a U.S. combatant command is not 'official' approaches being a distinction without a difference." Her explained that "to allow an ancillary disclosure such as this one to force the Defense Department to waive an exemption could turn future FOIA suits into a game of 'gotcha,' allowing the decision of one subset of an organization to lead to the release of information potentially harmful to national security." Because Ramos found that the disclosure in the Niger ambush report was not an official disclosure that waived the government's ability to Exemption 1, he indicated that an Exemption 1 claim now was untenable. He pointed out that "although the Court has found that the Defense Department did not intend to make an official disclosure regarding updates to the Obama Guidance, the reference to updated guidance regarding direct action against suspected terrorists is a necessary and explicit part of the report's findings and recommendations. Put simply, the Niger ambush report has credibly and conclusively established that the Obama Guidance has been superseded. No 'increment of doubt' remains."
Issues: Determination - Glomar response, Exemption 1 - Harm to national security
Opinion/Order [32]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2020-01-031COMPLAINT against Department of Defense. (Filing Fee $ 400.00, Receipt Number ANYSDC-18418212)Document filed by The New York Times Company.(McCraw, David) (Entered: 01/03/2020)
2020-01-032CIVIL COVER SHEET filed. (McCraw, David) (Entered: 01/03/2020)
2020-01-033RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The New York Times Company.(McCraw, David) (Entered: 01/03/2020)
2020-01-034REQUEST FOR ISSUANCE OF SUMMONS as to Department of Defense, re: 1 Complaint. Document filed by The New York Times Company. (McCraw, David) (Entered: 01/03/2020)
2020-01-035NOTICE OF APPEARANCE by Alexandra Perloff-Giles on behalf of The New York Times Company. (Perloff-Giles, Alexandra) (Entered: 01/03/2020)
2020-01-06CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Unassigned. (pne) (Entered: 01/06/2020)
2020-01-06Case Designated ECF. (pne) (Entered: 01/06/2020)
2020-01-06CASE REFERRED TO Judge Edgardo Ramos as possibly related to 17CV9972. (pne) (Entered: 01/06/2020)
2020-01-06***NOTICE TO ATTORNEY TO ELECTRONICALLY FILE RELATED CASE STATEMENT. Notice to Attorney David Edward McCraw, for non compliance with Local Rule 13 of the Division of Business Among Judges. Attorney must electronically file the Related Case Statement. Use the event type Statement of Relatedness found under the event list Other Documents. (pne) (Entered: 01/06/2020)
2020-01-06***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney David Edward McCraw. The following case opening statistical information was erroneously selected/entered: County code Albany. The following correction(s) have been made to your case entry: the County code has been modified to New York. (pne) (Entered: 01/06/2020)
2020-01-066ELECTRONIC SUMMONS ISSUED as to Department of Defense. (pne) (Entered: 01/06/2020)
2020-01-067STATEMENT OF RELATEDNESS re: that this action be filed as related to 17-cv-9972. Document filed by The New York Times Company.(McCraw, David) (Entered: 01/06/2020)
2020-01-07CASE ACCEPTED AS RELATED. Create association to 1:17-cv-09972-ER. Notice of Assignment to follow. (wb) (Entered: 01/07/2020)
2020-01-07NOTICE OF CASE REASSIGNMENT to Judge Edgardo Ramos. Judge Unassigned is no longer assigned to the case. (wb) (Entered: 01/07/2020)
2020-01-07Magistrate 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: https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf . (wb) (Entered: 01/07/2020)
2020-01-148LETTER addressed to Judge Edgardo Ramos from David McCraw dated January 14, 2020 re: The New York Times Company v. Department of Defense, No. 20-cv-43. Document filed by The New York Times Company.(McCraw, David) (Entered: 01/14/2020)
2020-01-159ORDER re: (8 in 1:20-cv-00043-ER) Letter filed by The New York Times Company, (23 in 1:17-cv-09972-ER) Letter filed by American Civil Liberties Union, American Civil Liberties Union Foundation. For the reasons set forth above, the Court sets the following consolidated briefing schedule for both actions: motions due February 12, 2020; oppositions due March 11, 2020; and replies due March 25, 2020. Furthermore, in light of this briefing schedule, the request for a pre-motion conference filed in 17 Civ. 9972, Doc. 23, is DENIED as moot. It is SO ORDERED. (Motions due by 2/12/2020., Responses due by 3/11/2020, Replies due by 3/25/2020.) (Signed by Judge Edgardo Ramos on 1/15/2020) (kv) (Entered: 01/15/2020)
2020-01-3010LETTER MOTION for Extension of Time and Clarification and Modification of the Court's Order dated January 15, 2020 addressed to Judge Edgardo Ramos from AUSA Steven J. Kochevar dated January 30, 2020. Document filed by Department of Defense.(Kochevar, Steven) (Entered: 01/30/2020)
2020-02-0411ORDER granting 10 Letter Motion for Extension of Time. The proposed briefing schedule is hereby approved. The government's consolidated motion for summary judgment in both cases is due February 26, 2020. Plaintiffs ACLU's and NYT's respective oppositions and cross-motions for summary judgment are due March 25, 2020. The government's reply in support of its motion for summary judgment and opposition to plaintiffs cross-motions is due April 15, 2020.ACLU's and NYT's replies in support of their cross-motions are due May 6, 2020. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (jar) (Entered: 02/04/2020)
2020-02-04Set/Reset Deadlines: Motions due by 2/26/2020. Cross Motions due by 3/25/2020. Responses due by 4/15/2020. Replies due by 5/6/2020. (jar) (Entered: 02/04/2020)
2020-02-0712ANSWER to 1 Complaint. Document filed by Department of Defense..(Kochevar, Steven) (Entered: 02/07/2020)
2020-02-2613MOTION for Summary Judgment . Document filed by Department of Defense..(Kochevar, Steven) (Entered: 02/26/2020)
2020-02-2614NOTICE of Lodging of Classified Submission. Document filed by Department of Defense..(Kochevar, Steven) (Entered: 02/26/2020)
2020-02-2615DECLARATION of Ellen J. Knight (Redacted) in Support re: 13 MOTION for Summary Judgment .. Document filed by Department of Defense..(Kochevar, Steven) (Entered: 02/26/2020)
2020-02-2616MEMORANDUM OF LAW in Support re: 13 MOTION for Summary Judgment . . Document filed by Department of Defense..(Kochevar, Steven) (Entered: 02/26/2020)
2020-03-2517CROSS MOTION for Summary Judgment . Document filed by The New York Times Company. Responses due by 4/15/2020.(McCraw, David) (Entered: 03/25/2020)
2020-03-2518MEMORANDUM OF LAW in Support re: 17 CROSS MOTION for Summary Judgment . . Document filed by The New York Times Company..(McCraw, David) (Entered: 03/25/2020)
2020-03-2519DECLARATION of Eric P. Schmitt in Support re: 17 CROSS MOTION for Summary Judgment .. Document filed by The New York Times Company..(McCraw, David) (Entered: 03/25/2020)
2020-04-1520REPLY MEMORANDUM OF LAW in Support re: 13 MOTION for Summary Judgment . and in Opposition to Plaintiff's Cross Motion for Summary Judgment . Document filed by Department of Defense..(Kochevar, Steven) (Entered: 04/15/2020)
2020-05-0621REPLY MEMORANDUM OF LAW in Support re: 17 CROSS MOTION for Summary Judgment . . Document filed by The New York Times Company..(McCraw, David) (Entered: 05/06/2020)
2020-08-1922LETTER addressed to Judge Edgardo Ramos from AUSA Steven J. Kochevar dated August 19, 2020 re: Recent Decisions of the United States Court of Appeals for the Second Circuit. Document filed by Department of Defense..(Kochevar, Steven) (Entered: 08/19/2020)
2020-09-2923ORDER denying 13 Motion for Summary Judgment; granting 17 Motion for Summary Judgment. For the reasons set forth in a Memorandum Opinion to be filed separately, the defendants' motions for summary judgment are DENIED and the plaintiffs' cross-motions for summary judgment are GRANTED. The defendants are ORDERED to confirm or deny the existence of records responsive to the plaintiffs' FOIA requests. The parties are further directed to submit, by November 1, 2020, a schedule for the defendants' compliance with this Order and the further disposition of this case. The Clerk of Court is respectfully directed to terminate the following motions: Docs. 28 and 32 in 17 Civ. 9972, and Docs. 13 and 17 in 20 Civ. 43. (Signed by Judge Edgardo Ramos on 9/29/2020) (mro) (Entered: 09/29/2020)
2020-10-0524MEMORANDUM OPINION: For these reasons, the Court finds that the Defense Department never properly invoked Exemption 3 and that its invocation of Exemption 1 was rendered illogical and implausible by the release of the Niger ambush report. Accordingly, the agencies' motion for summary judgment was DENIED, and the cross-motions of both the ACLU and the Times were GRANTED. The instructions within the Court's Order of September 29, 2020, Doc. 39, remain in effect. (Signed by Judge Edgardo Ramos on 10/5/2020) (mro) (Entered: 10/06/2020)
2020-10-2025LETTER MOTION for Extension of Time to File Schedule for Defendant's Compliance with September 29 Order and Disposition of Case addressed to Judge Edgardo Ramos from AUSA Sarah S. Normand dated October 20, 2020. Document filed by Department of Defense..(Normand, Sarah) (Entered: 10/20/2020)
2020-10-2026ORDER granting 25 Letter Motion for Extension of Time. Defendant's request to extend the deadline to comply with the Court's September 29, 2020 Order until December 4, 2020 is granted. (Signed by Judge Edgardo Ramos on 10/20/2020) (mro) (Entered: 10/20/2020)
2020-12-0427LETTER addressed to Judge Edgardo Ramos from AUSA Sarah S. Normand dated December 4, 2020 re: Proposed Schedule for Resolution of Cases. Document filed by Department of Defense..(Normand, Sarah) (Entered: 12/04/2020)
2020-12-0728MEMO ENDORSEMENT: on re: (27 in 1:20-cv-00043-ER) Letter filed by Department of Defense, (43 in 1:17-cv-09972-ER) Letter filed by Department of Defense, Department of State, Department of Justice. ENDORSEMENT: The Proposed schedule are APPROVED. SO ORDERED., ( Cross Motions due by 2/16/2021., Motions due by 1/19/2021., Responses due by 3/16/2021, Replies due by 4/6/2021.) (Signed by Judge Edgardo Ramos on 12/07/2020) (ama) (Entered: 12/07/2020)
2021-01-1529LETTER MOTION for Extension of Time for defendant to file second consolidated motion for summary judgment addressed to Judge Edgardo Ramos from AUSA Sarah S. Normand dated January 15, 2021. Document filed by Department of Defense. (Attachments: # 1 Text of Proposed Order).(Normand, Sarah) (Entered: 01/15/2021)
2021-01-1530REVISED SCHEDULING ORDER granting 29 LETTER MOTION for Extension of Time for defendant to file second consolidated motion for summary judgment. IT IS HEREBY ORDERED THAT the schedule set forth in the Court's December 7,2020 Order is amended as follows:Government's consolidated motion for summary judgment due: February 22, 2021. Plaintiffs' oppositions and cross-motions due: March 22, 2021. Government's consolidated opposition and reply due: April 19, 2021. Plaintiffs replies due: May 10, 2021. SO ORDERED. (Signed by Judge Edgardo Ramos on 1/15/2021) (jca) (Entered: 01/15/2021)
2021-01-15Set/Reset Deadlines: Cross Motions due by 3/22/2021. Motions due by 2/22/2021. Responses due by 4/19/2021, Replies due by 5/10/2021. (jca) (Entered: 01/15/2021)
2021-02-1831SECOND LETTER MOTION for Extension of Time to File Second Motion for Summary Judgment addressed to Judge Edgardo Ramos from AUSA Sarah S. Normand dated February 18, 2021. Document filed by Department of Defense. (Attachments: # 1 Text of Proposed Order).(Normand, Sarah) (Entered: 02/18/2021)
2021-02-1932REVISED SCHEDULING ORDER granting 31 Letter Motion for Extension of Time to File. IT IS HEREBY ORDERED THAT the schedule set forth in the Court's January 15, 2021 Order is amended as follows: Government's consolidated motion due: April 23, 2021. Plaintiffs' oppositions and cross-motions due: May 21, 2021. Government's consolidated opposition and reply due: June 18, 2021. Plaintiffs' replies due: July 9, 2021. (Signed by Judge Edgardo Ramos on 2/19/2021) (mro) (Entered: 02/19/2021)
2021-02-19Set/Reset Deadlines: Cross Motions due by 5/21/2021. Motions due by 4/23/2021. Responses due by 6/18/2021 Replies due by 7/9/2021. (mro) (Entered: 02/19/2021)
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