The New York Times Company v. Department of Health and Human Services

Background

On January 13, 2021, the court ordered the Government to produce the Report at issue by January 27, 2021, under the Freedom of Information Act. The Government requested a stay pending a possible appeal, although it had not yet filed a notice of appeal. The plaintiffs opposed the request.

Legal standard

For a stay pending appeal, the court considered four factors: the likelihood that the moving party would succeed on appeal, the possibility of irreparable harm without a stay, the injury to the opposing party if a stay issued, and the public interest. The court explained that the first two factors were the most important. It also applied the principle that serious questions about the merits, combined with a decisive balance of hardships, can support a stay.

Court’s analysis

The court found that the Government was unlikely to succeed on the merits for the reasons given in the January 13 opinion. In the court’s view, the issues were not particularly close, although they were novel and raised serious questions.

The court found that the irreparable-harm factor strongly favored the Government. The Freedom of Information Act permits the Government to withhold documents covered by an exemption, and disclosure could not be undone if an appellate court later determined that the Report should not have been released.

The court considered the harm to the plaintiffs and the public, and the public interest, together. It recognized that the Report concerned an issue of great public importance and that access was desirable. But it found that the dispute concerned timing rather than access. The court noted that the Wall Street Journal and Frontline had already exposed the conduct discussed in the Report and criticized the agency’s failures. It concluded that the plaintiffs had not shown an urgent need for the Report’s immediate release.

Ruling and conditions

The court concluded that the factors slightly favored granting the stay, but described the Government’s showing as minimally strong. It therefore stayed the January 13 order pending appeal only if the Government satisfied specified conditions. The Government had to file its notice of appeal and related forms by February 3, 2021; notify the Second Circuit that its brief would be filed by February 24; file its opening brief by that date; file its reply brief within 14 days after the appellees’ brief; consent to a requested expedited appeal; minimize dates on which it was unavailable for oral argument; and prepare the Report, including any Exemption 6 redactions, by February 10. The Government also had to submit a sworn statement confirming compliance with the preparation requirement. If any condition was not met, the plaintiffs were permitted to seek vacatur of the stay.