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

Background

The New York Times and one of its national security reporters, 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 information about the agencies’ use of spyware and other digital-surveillance products from NSO Group, including Pegasus, which the opinion describes as a tool for surveilling encrypted smartphone communications.

The parties previously filed cross-motions for summary judgment. In a July 7, 2023 memorandum order, the court granted the plaintiffs’ motion as to some records and denied other portions of the parties’ motions. The Government then moved for partial reconsideration concerning two document groups.

Group G: FBI letters about acquiring an NSO tool

Group G consisted of draft and final letters from the FBI to Israel’s Defense Export Control Agency. The FBI had redacted the identities of vendors involved in a possible acquisition of an NSO tool, along with other details about how the product was acquired. It relied on Freedom of Information Act Exemption 7(E), which protects law-enforcement techniques, procedures, and certain guidelines when disclosure could reasonably be expected to risk circumvention of the law.

In the earlier ruling, the court found that the Government’s original declaration did not adequately explain why the redacted information qualified for that exemption. In support of reconsideration, the Government submitted a supplemental declaration. It explained that disclosure could help targets identify FBI technologies and develop countermeasures; expose vendors to foreign adversaries or hostile non-state actors; discourage vendors from doing business with the FBI; and allow criminals or adversaries to target vendors and technology with malware during transfers. The Government also raised Exemptions 1 and 3 for the first time, based on national-security and foreign-policy grounds.

The court held that the supplemental explanation, together with a classified declaration it reviewed privately, was sufficient to show that disclosure could risk law-enforcement efforts and national security. The court also rejected the plaintiffs’ argument that vendor names and acquisition information were not “techniques,” explaining that software used to investigate crimes fits within the relevant meaning of that term.

The court recognized that the Government had not identified a change in controlling law or newly discovered evidence. It nevertheless concluded that reconsideration was appropriate because disclosure could injure innocent third parties and harm broader law-enforcement and national-security interests. The court emphasized that this ruling did not approve the Government’s failure to adequately support its original summary-judgment position and that reconsideration ordinarily is not a way to present a case again with better arguments.

Group L: Email chain about whether to deploy the technology

Group L was an email chain created before the decision not to deploy the NSO technology. The Government withheld the entire chain under Exemption 5, which includes the deliberative-process privilege. The earlier order had ruled that actual intermediate approvals made before the final decision were protected, but that descriptions of the decision-making process, as distinct from views expressed during that process, generally were not.

The court reviewed the email chain privately to determine whether any nonprotected material could be separated and released. It concluded that the chain contained no substantive information that could practically be separated from the protected intermediate approvals. The entire email chain therefore remained protected.

Disposition

The court granted the Government’s motion for partial reconsideration. The court also granted the plaintiffs’ request to extend the deadline for any attorney’s-fee motion until all appeals had been exhausted. The parties were directed to contact the judge’s chambers jointly within 14 days after exhaustion of all appeal rights to establish a briefing schedule for any fee motion.

Judge Jed S. Rakoff did not state that the Government’s original litigation conduct was acceptable; instead, he expressly limited the reconsideration ruling to the circumstances described, including the national-security and law-enforcement interests at stake.