The New York Times Company v. United States Department of Justice

Background

The New York Times Company and John T. Ewing, Jr., a New York Times reporter, sued the United States Department of Justice under the Freedom of Information Act, a federal law requiring government agencies to disclose records unless a statutory exemption applies. Volkswagen AG intervened in the case. The request concerned a report prepared by an independent monitor overseeing Volkswagen’s compliance with a plea agreement that followed the discovery of Volkswagen’s emissions-related scheme.

The Department of Justice released a redacted version of the report in November 2020. It withheld additional material under FOIA Exemption 4, which covers qualifying trade-secret and confidential commercial or financial information, and Exemption 5, which covers certain privileged government documents, including material protected by the deliberative-process privilege.

In an earlier decision, the court denied the parties’ cross-motions for summary judgment. It found that some report material was properly withheld but that the Department of Justice’s redactions were likely too broad. The court ordered the Department to provide the complete report for private judicial review, along with explanations identifying the exemptions supporting each redaction.

Exemption 5 and the deliberative-process privilege

The deliberative-process privilege protects documents that are both predecisional—created before an agency decision—and deliberative—prepared to help the agency develop its position. It generally does not protect purely factual material unless releasing the facts would reveal what information officials considered important or would expose the decision-making process itself.

After reviewing the full report, the court concluded that most redactions under Exemption 5 were proper. The monitor’s recommendations and observations reflected analysis of Volkswagen’s compliance and remediation efforts and assisted the Department in deciding whether Volkswagen was meeting its plea-agreement obligations. The court also found that some descriptions of interviews, meetings, and Volkswagen’s policies, although largely factual, had been selectively chosen and were closely connected to the monitor’s recommendations. Releasing those descriptions would reveal which facts the monitor and the Department considered significant.

The court nevertheless ordered disclosure of material that did not reveal the deliberative process. It required disclosure of the report’s table of contents and associated headers, Section I.C, “Nature of Report Observations and Recommendations,” Section I.D, “Future Reviews,” and Section IV, “The Monitor’s Activities During the Initial Review.” It also ordered disclosure of specified background passages about Volkswagen’s structure, policies, and practices that predated the emissions scheme, its disclosure, and the monitor’s appointment. The court further ordered disclosure of the first paragraph of the executive summary.

Exemption 4

The court found that the Department of Justice had improperly used Exemption 4 to withhold some information that was not commercial or confidential business information. Examples included discussion of whether Volkswagen was meeting its plea-agreement obligations, information about Volkswagen’s internal investigations into the emissions scandal, and information about corporate culture, compliance structure, and the code of conduct.

The court ordered this noncommercial information produced to the extent it was not independently protected by Exemption 5. Information redacted solely under Exemption 4 had to be produced in its entirety, except that the Department could continue withholding the second sentence in the final paragraph of Section I.D. The court also stated that the remaining information redacted under Exemptions 4 and 5 in Sections I.C, I.D, and IV, and the specified background passages, had to be disclosed.

Disposition

The court ordered the Department of Justice to produce a version of the report consistent with the opinion by July 13, 2022. It also ordered the parties to submit a joint letter by July 20, 2022, stating whether any issues remained.