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

Background

The New York Times and its national-security reporter, Mark Mazzetti, submitted two requests under the Freedom of Information Act to the Department of Justice and the Federal Bureau of Investigation. The requests sought contracts and correspondence between the FBI and NSO Group, as well as reports, policies, memoranda, guidelines, and internal communications concerning NSO products, their possible use in criminal investigations, and their relationship to United States wiretapping laws.

The requests focused on NSO Group’s spyware products, including Pegasus, which the opinion says is used to surveil encrypted smartphone communications. The FBI confirmed that it had purchased Pegasus, but the opinion states that the FBI decided in July 2021 not to use NSO technology in criminal investigations and had not used it in any such investigation.

The Government made additional productions during the litigation. The parties then disputed whether remaining withholdings were authorized by the Freedom of Information Act. The principal issues involved Exemption 5, which protects certain predecisional and deliberative agency documents; Exemption 7(E), which protects law-enforcement techniques, procedures, and guidelines when disclosure could reasonably be expected to risk circumvention of the law; and exemptions for classified information and intelligence sources and methods.

Rulings on the documents

The court granted the Government summary judgment for Group A, finding that the FBI properly withheld deliberative material and information about its operational capabilities. It also upheld most withholdings in Groups C and K, which consisted largely of presentations prepared before the FBI decided not to use the technology. The court granted the Times summary judgment as to the cover email attached to one presentation because the Government had not shown that the email itself was predecisional or otherwise exempt.

The court granted the Government summary judgment for Group F, which contained a later email recounting earlier deliberations. For Group G, the court upheld the Exemption 5 withholdings but granted the Times summary judgment as to Exemption 7(E) withholdings other than code names. The court found that the Government had not adequately explained how the other information would reveal law-enforcement techniques or create a risk of circumvention.

The court denied the Times’ motion and granted the Government’s motion for Group H in its entirety. It also granted the Government summary judgment for Groups I and J, Group M, Group N, Groups O and P, and contract documents withheld under classified-information exemptions. These records included deliberations about whether and how to use the NSO tool, assessments of the FBI’s ability to access encrypted information, classified communications, and contract material the court found implicated national security.

For Group L, the court held that recommendations and actual intermediate approvals could be withheld under Exemption 5, but descriptions of the decision-making process itself were not necessarily exempt. The Government was ordered to reprocess that email chain and produce segregable descriptions of the process, or submit the email for private court review if it concluded that no such portions could be separated.

For Group Q, the court upheld the Government’s withholding of Documents 93, 94, and 95 under Exemptions 5 and 7(E). It granted the Times’ motion as to Document 91, except for the portions whose withholding under Exemption 7(A) was not disputed. The Government was required to produce the remaining portions of Document 91 because the court found that the cited Exemptions 5 and 7(E) did not justify withholding them.

Search and disposition

The Times argued that the Government’s search was inadequate because it did not use “Phantom,” another NSO product, as a search term. After reviewing the Government’s submissions, including a classified declaration, the court agreed that searching for “Phantom” would not likely have located additional records beyond searches for “Pegasus” and “NSO Group.” The opinion also states that the Government conducted an additional search of Office of Congressional Affairs files after the Times raised a separate search objection.

Judge Jed S. Rakoff concluded that the Government’s motion for summary judgment was granted in part and the Times’ motion was granted in part. Any additional productions required by the order had to be made within 14 days of the order.