Secrecy & Leaks

Interesting Letter from CA2 Panel in FOIA Case

By Jack Goldsmith
Monday, September 30, 2013, 6:02 PM

Just one thing to add to Matt’s preview of tomorrow’s big FOIA argument in the Second Circuit.  A few weeks ago the Second Circuit sent the parties this intriguing letter:

Dear Counsel:

The panel in the captioned case directs that the Government make available to each member of the panel, for prompt in camera inspection under appropriate security precautions, (1) the so-called OLC-DOD Memo, and (2) the so-called Unclassified Memos, referred to by the District Court and by the parties in their briefs in this Court.

In addition, the panel directs that the Government have available in New York City, for possible in camera inspection upon request in due course, (3) Any Other Responsive OLC Memoranda; (4) the 60 email chains listed on OLC's Vaughn index (including those withheld by the several agencies pursuant to and invocation of the deliberative process privilege, discussed by the District Court at pp.52 to 55 of its January 3, 2013 opinion; and (5) The information that is "at issue in the No-Number, No List context" and apparently withheld under Exemptions 1 and 3, "traditionally appear[ing] in a Vaughn index"(Judge McMahon Opinion of Jan. 3, 2013 at 67).

Without getting into the weeds, this letter suggests that the CA2 panel might not take at face value the USG’s claims about the nature of the underlying documents, and might be at least a bit skeptical, if not more, about the USG’s withholding of the legal memos and its position on the Vaughn index and the no-number no-list response.