Case 14-4432, Document 135, 10/22/2015, 1648733, Page1 of 22 14-4432-cv(L) 14-4764-cv(Con) The New York Times Company v. United States Department of Justice 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2014 4 5 6 Argued: June 23, 2015 Decided: October 22, 2015 Docket No. 14-4432-cv, 14-4764-cv - - - - - - - - - - - - - - - - - - - - - - 1 2 3 4 5 THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants, v. 6 7 8 9 10 11 12 13 14 UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - 15 United States District Court for the Southern District of New 16 York (Colleen McMahon, District Judge), adjudicating, pursuant 17 to a remand from this Court, Freedom of Information Act requests 18 for documents prepared by the Office of Legal Counsel of the 19 United States Department of Justice concerning targeted killings 20 by drone aircraft. Before: NEWMAN, CABRANES, and POOLER, Circuit Judges. Appeal from the October 31, 2014, decision and order of the The District Court ordered disclosure of all 1 Case 14-4432, Document 135, 10/22/2015, 1648733, Page2 of 22 1 or portions of some documents and denied disclosure of other 2 documents. 3 portions of the District Court’s sealed opinion and disclosure 4 of redacted portions of the transcript of the June 23, 2015, oral 5 argument present by the Government to the Court ex parte and in 6 camera. The appeal also concerns disclosure of redacted Judgment 7 AFFIRMED; redacted portions of District Court 8 opinion to remain UNDISCLOSED, except for three paragraphs (as 9 redacted pursuant to Part IV of this opinion) that the District 10 Court wishes to disclose; and redacted portions of transcript of 11 June 12 REMANDED. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 23, 2015, oral argument to remain UNDISCLOSED; case David E. McCraw, The New York Times Company, New York, N.Y. (Jeremy A. Kutner, New York, N.Y., on the brief), for Plaintiffs-Appellants The New York Times Company, Charlie Savage, and Scott Shane. Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Hina Shamsi, Dror Ladin, American Civil Liberties Union Foundation, New York, N.Y., Eric Ruzicka, Colin Wicker, Michael Weinbeck, Dorsey & Whitney LLP, Minneapolis, Minn., on the brief), for Plaintiffs-Appellants American Civil Liberties Union and American Civil Liberties Union Foundation. 2 Case 14-4432, Document 135, 10/22/2015, 1648733, Page3 of 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Sarah S. Normand, Asst. U.S. Atty., New York, N.Y. (Preet Bharara, U.S. Atty., New York, NY, Benjamin C. Mizer, Acting Asst. U.S. Atty. General, Matthew M. Collette, Sharon Swingle, Thomas Pulham, Civil Division, U.S. Dep’t of Justice, Washington, D.C., on the brief), for Defendants-Appellees. (Lawrence S. Lustberg, Joseph A. Pace, Gibbons P.C., Newark NJ, for amici curiae Senators Ron Wyden, Rand Paul, Jeff Merkley, and Martin Heinrich, in support of Plaintiffs-Appellants) JON O. NEWMAN, Circuit Judge: 19 This appeal from the October 31, 2014, decision and order of 20 the District Court for the Southern District of New York (Colleen 21 McMahon, 22 protracted Freedom of Information Act (“FOIA”) litigation seeking 23 disclosure of documents related to targeted killings by the use 24 of drone aircraft. 25 v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (“NYTimes 26 I”), we ordered disclosure of a 2010 document known as the “OLC- 27 DOD Memorandum,” a 41-page legal opinion prepared by the Office 28 of Legal Counsel (“OLC”) in the Department of Justice for the 29 Department of Defense (“DOD”), advising as to the legality of 30 targeted drone attacks. 31 disclosures by senior officials of the Government, plus the District Judge) concerns the second round in a On the prior appeal, see New York Times Co. See id. at 112-21. 3 We ruled that prior Case 14-4432, Document 135, 10/22/2015, 1648733, Page4 of 22 1 release of what was referred to as “the White Paper,” resulted 2 in waiver of all applicable exemptions for protection of the OLC- 3 DOD Memorandum. 4 We also remanded the case to the District Court to review in 5 camera several other documents prepared by the OLC that the 6 Government had identified as responsive to the pending FOIA 7 requests but had withheld on various grounds. 8 “determination 9 redaction.” Id. at 124. The District Court ruled, in a partially of opinion, waiver that the of privileges Government had We remanded for and appropriate 10 redacted properly invoked 11 Exemption 1 (documents classified by executive order), Exemption 12 3 (intelligence sources and methods protected by statute), and 13 Exemption 5 (document protected by the deliberative process or 14 attorney-clients privilege), and that most of these documents 15 should not be disclosed.1 That ruling is challenged on the 1 As explained in our prior decision, see NYTimes I, 756 F.3d at 104, Exemption 1 permits an agency to withhold information that is “‘specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy’” if that information has been “‘properly classified pursuant to such Executive order.’” ACLU v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (quoting U.S.C. § 552(b)(1)). Exemption 3 permits an agency to withhold information that is “specifically exempted from disclosure by statute, see 5 U.S.C. § 552(b)(3)(A)(I), (ii), such as pursuant to 50 U.S.C. § 3024-1(i)(1), which exempts from disclosure “intelligence sources and methods,” or 50 U.S.C. § 3507, which exempts the CIA from “any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” Exemption 5 authorizes an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. 4 Case 14-4432, Document 135, 10/22/2015, 1648733, Page5 of 22 1 pending appeal. The appeal also concerns disclosure of the 2 redacted portions of the District Court’s opinion, including 3 three paragraphs that the District Court wishes to disclose, and 4 disclosure of redacted portions of the transcript of the June 23, 5 2015, oral argument presented by the Government to this Court ex 6 parte and in camera. Background 7 8 The background of the litigation was extensively set forth 9 in NYTimes I, 756 F.3d at 104-11, and need not be repeated here. 10 We recount only developments since our prior decision. 11 Paragraph (3) of the “Conclusion” of NYTimes I provided that 12 “other legal memoranda prepared by OLC and at issue here must be 13 submitted to the District Court for in camera inspection and 14 determination of waiver of privileges and appropriate redaction.” 15 Id. at 124. 16 Court examined in camera eleven sealed documents, identified as 17 Exhibits A, B, C, E, F, G, H, I, J, K, and L to a sealed 18 affidavit submitted by John E. Bies, Deputy Assistant Attorney 19 General in the OLC. Exhibit D is the OLC-DOD Memorandum, already 20 disclosed. In conformity with that direction, the District § 552(b)(5). Exemption 5 encompasses documents protected by, among other things, the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005). 5 Case 14-4432, Document 135, 10/22/2015, 1648733, Page6 of 22 1 On October 31, 2014, the District Court filed under seal its 2 opinion adjudicating claims for disclosure of these documents. 3 The District Court’s opinion was sealed because, in discussing 4 the reasons for refusing disclosure of most of the documents at 5 issue, the Court necessarily discussed matters entitled to remain 6 secret. 7 parte 8 redaction of several portions of the District Court’s opinion. 9 The District Court agreed to all of the redactions proposed by 10 the Government with the exception of three paragraphs on page 9 11 of 12 paragraphs under seal, however, to abide the outcome of appellate 13 review of her decision to disclose them. 14 the District Court’s rulings with respect to each of the eleven 15 documents. 16 immediate entry of a partial judgment under Rule 54(b) of the 17 Federal Rules of Civil Procedure. The Court submitted its opinion to the Government ex for the classification Court’s The opinion.2 District review. The Judge Court Government McMahon requested continued those We will recount below certified its rulings for 18 After the Appellants and four United States Senators, as 19 amici curiae, filed their briefs, the Government filed a redacted 20 version of its brief and filed an unredacted version ex parte and 21 in camera. 22 present oral argument to the Court ex parte and in camera. The Government later sought the opportunity to 2 We The Government did not request redaction of the first sentence of the first paragraph. 6 Case 14-4432, Document 135, 10/22/2015, 1648733, Page7 of 22 1 granted that request and heard Government counsel ex parte and 2 in camera on June 23, 2015, just prior to hearing both sides in 3 open court. 4 to the Government ex parte. These orders afforded the Government 5 an opportunity to submit ex parte and in camera a brief and a 6 supplemental declaration concerning matters that the Court had 7 raised with Government counsel at the June 23 ex parte and in 8 camera hearing. 9 camera a transcript of the June 23 argument, together with a 10 redacted version of that transcript, which was filed in the 11 normal course (“June 23 redacted tr.”). See Dkt. No. 119. 12 July 17, the Government filed its response to our June 25 orders, 13 submitting, ex parte and in camera, a brief and a supporting 14 affidavit. 15 a letter justifying the transcript redactions. 16 responded with a letter of July 24, 2015, filed ex parte and in 17 camera. On June 25, we entered two sealed orders, both sent On July 7, the Government filed ex parte and in On On the same day, we asked the Government to submit The Government Discussion 18 19 We emphasize at the outset, as we did before, see NYTimes I, 20 756 F.3d at 103, that the lawfulness of drone strikes is not at 21 issue. 22 whether documents considering such lawfulness must be disclosed. This appeal, like the prior one, primarily concerns 23 7 Case 14-4432, Document 135, 10/22/2015, 1648733, Page8 of 22 1 I. The Eleven OLC Documents. 2 Exhibits A, B, and C. The District Court ruled that these 3 documents were required to remain secret, but that the legal 4 reasoning contained in Exhibit B had been incorporated into 5 Exhibit K, which was appropriate for disclosure. 6 the District Court’s decision not to disclose Exhibits A, B, and 7 C, which contain intelligence information that was properly 8 exempted. 9 Exhibit E.3 This OLC document, as We agree with described by the 10 Government, is “the provision of legal advice in 2002 provided 11 to the President’s close legal advisor about the [E]xecutive 12 [O]rder 12333.”4 Executive Order 12333, captioned “United States 13 Intelligence Activities,” was signed by President Reagan on Dec. 14 4, 1981. 15 ground that most of it discusses topics exempted from FOIA 16 disclosure and not subject to any waiver. 17 District Court’s ruling in that respect. 18 Exhibit E that discusses a topic referred to in subsequent 19 statements of senior Government officials, the District Court 20 withheld 21 correspond” to any legal analysis that has been disclosed. The District Court withheld Exhibit E partly on the that portion because the We agree with the As to one portion of discussion “does 3 Exhibit D is the OLC-DOD Memorandum, previously disclosed. 4 June 23 redacted tr. at 12. 8 not Case 14-4432, Document 135, 10/22/2015, 1648733, Page9 of 22 1 At issue is whether the Government waived its right to 2 invoke Exemption 5 as the basis for withholding portions of the 3 legal 4 statements on topics related to some of the analysis contained 5 in that document. 6 portion 7 substantial time interval between the date of Exhibit E and the 8 subsequent arguably similar disclosures. 9 relevant statements of Government officials were made before the analysis of that the in Exhibit E by subsequently making public Our initial concern with disclosure of the is similar July OLC-DOD disclosures is the In NYTimes I, several Memorandum,5 date and other 11 statements were made less than three years afterwards.6 With 12 respect to Exhibit E, there is no statement of a Government 13 official before the date of that exhibit that even arguably 14 supports 15 subsequent statements that even arguably support waiver were made 16 eight years after the date of Exhibit E.7 of 2010, subsequent 10 waiver 16, to protection, and the earliest dates of 5 March 18, 2010, statement of then-CIA director Leon Panetta, see NYTimes I, 756 F.3d at 118; March 25, 2010, statement of then-Legal Adviser of the State Department Harold Hongju Koh, see id. at 114; June 27, 2010, statement of then-CIA director Leon Panetta, see id. at 118. 6 Nov. 8, 2011, White Paper, see NYTimes I, 756 F.3d at 110-11 & n.9; February 7, 2013, statement of John O. Brennan, id. at 111; statement of then-Attorney General Eric Holder, id. 7 See footnote 6, supra. 9 Case 14-4432, Document 135, 10/22/2015, 1648733, Page10 of 22 1 We do not mean to imply that a Government official’s public 2 statement made after preparation of a legal opinion can never 3 result in waiver of protection for that opinion. 4 on some statements made soon after the date of the OLC-DOD 5 Memorandum dispels such a broad implication. 6 passage of a significant interval of time between a protected 7 document 8 discussing the same or a similar topic considered in the document 9 inevitably raises a concern that the context in which the 10 official spoke might be significantly different from the context 11 in which the earlier document was prepared. 12 of legal reasoning set forth in one context is somewhat similar 13 to such reasoning that is later explained publicly in another 14 context, such similarity does not necessarily result in waiver. 15 Moreover, ignoring both the differences in contexts and the 16 passage of a significant interval of time would risk requiring 17 Government 18 documents prepared long before and then measure their public 19 words very carefully so as not to inadvertently precipitate a 20 waiver of protection for those earlier documents. and a Government officials to official’s consider Our reliance However, the subsequent statement Even if the content numerous arguably similar 21 In this case, it would be difficult to explain in detail why 22 the context of the legal reasoning in Exhibit E differs from the 10 Case 14-4432, Document 135, 10/22/2015, 1648733, Page11 of 22 1 context of the public explanations given by senior Government 2 officials eight years later without revealing matters that are 3 entitled to protection. 4 concerns Executive Order 12333, and that Order is not mentioned 5 in any of the public statements we relied on in NYTimes I to 6 support waiver of protection for the OLC-DOD Memorandum. 7 also say that Exhibit E concerns actions and governing legal 8 standards different from those later publicly discussed. 9 conclude that these differences suffice to preclude a ruling that 10 waiver has occurred, and we therefore affirm the District Court’s 11 decision not to disclose Exhibit E. 12 We can say, however, that Exhibit E Exhibits F, G, H, I, and J. We can We These OLC documents discuss 13 another document that remains entitled to protection. It would 14 be difficult to redact any arguably disclosable lines of legal 15 analysis from these documents without disclosing the contents of 16 that other document, and for that reason the District Court 17 properly withheld them from disclosure. 18 Exhibit K. This document is a redacted version of Exhibit B. 19 The District Court properly ordered it disclosed because the 20 Government waived any privilege in the redacted legal analysis. 21 Exhibit L. This document is an email that circulated the 22 White Paper to DOJ personnel, together with the White Paper 11 Case 14-4432, Document 135, 10/22/2015, 1648733, Page12 of 22 1 itself. The White Paper has already been disclosed, and the 2 email contains no legal analysis. 3 withheld it from disclosure. The District Court properly 4 Unable to direct arguments to the specific documents, which 5 they have not seen, the Appellants make the general argument that 6 the legal reasoning in OLC opinions is “working law,” see Brennan 7 Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d 8 Cir. 2012), not entitled to be withheld under FOIA Exemption 5. 9 Whether or not “working law,” the documents are classified and 10 thus protected under Exemption 1, in the absence of statements 11 by 12 exemptions. public officials that constitute waiver of all FOIA 13 Moreover, these OLC documents are not “working law.” At 14 most, they provide, in their specific contexts, legal advice as 15 to what a department or agency “is permitted to do,” Electronic 16 Frontier Foundation v. U.S. Dep’t of Justice, 739 F.3d 1, 10 17 (D.C. Cir. 2014) (emphasis in original), but OLC “did not have 18 the authority to establish the ‘working law’ of the [agency],” 19 id. at 8, and its advice “is not the law of an agency unless the 20 agency adopts it,” id. 21 Brennan Center was not deemed “working law,” 697 F.3d at 203, and 22 was ordered disclosed only because the agency had “adopted [it] The one document ordered disclosed in 12 Case 14-4432, Document 135, 10/22/2015, 1648733, Page13 of 22 1 by reference,” id. No agency of the Government has adopted by 2 reference any of the documents at issue in this case. 3 To recapitulate, we agree with all of the District Court’s 4 rulings with respect to the documents at issue, with the result 5 that only Exhibit K is to be disclosed. 6 Exhibit K, which the District Court ordered disclosed, is a 7 redacted version of Exhibit B. 8 9 10 As explained above, II. Disclosure of the Redacted Portions of the District Court’s Opinion The Appellants contend that the redacted portions of the 11 District Court’s opinion should be disclosed. Judge McMahon 12 herself urges us to permit disclosure of three paragraphs on page 13 9 of her opinion, which she maintained under seal only to assure 14 that those paragraphs remained sealed in the event that a 15 reviewing court disagreed with her decision to make them public. 16 The Appellants are understandably in a difficult position to 17 present their argument for disclosure of the redacted portions 18 of the District Court’s opinion because they have not seen them. 19 The Appellants’ basic argument is that the First Amendment 20 requires public access to normally public documents, such as 21 court opinions. They rely on United States v. Erie County, 763 22 13 Case 14-4432, Document 135, 10/22/2015, 1648733, Page14 of 22 1 F.3d 235 (2d Cir. 2014), and Lugosch v. Pyramid Co., 435 F.3d 110 2 (2d Cir. 2006). 3 Erie County concerned compliance reports filed with a court 4 administering a stipulation governing prison conditions. 5 Court noted, “[E]very aspect of this litigation is public.” Erie 6 County, 763 F.3d at 241. 7 classified documents sought pursuant to FOIA requests, and the 8 District 9 exception, those documents must remain under seal. Court’s As the By contrast, the pending case concerns sealed opinion explains why, with limited Lugosch 10 concerned documents supporting and opposing a summary judgment 11 motion in litigation between private parties. 12 to classified documents were not involved in either case. 13 a general rule,” there is no constitutional right of access “to 14 traditionally 15 Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983). 16 therefore not entitled to disclosure of those portions of the 17 District 18 withheld under an applicable FOIA exemption. nonpublic Court’s government opinion that Concerns related information.” discuss McGehee “As v. Appellants are information properly 19 The Appellants further contend that even if the District 20 Court was entitled to seal its opinion, the Court failed to make 21 the findings warranting sealing that are required by Erie County, 22 763 F.3d at 239, and Lugosch, 435 F.3d at 120, both of which 14 Case 14-4432, Document 135, 10/22/2015, 1648733, Page15 of 22 1 restated the findings requirement first announced in In re New 2 York Times, 828 F.2d 110, 116 (2d Cir. 1987) (“[D]ocuments may 3 be 4 demonstrating that closure is essential to preserve higher values 5 and is narrowly tailored to serve that interest.”) (internal 6 quotation marks omitted). 7 findings requirement for sealing documents arises only after “a 8 First Amendment right of access to judicial documents is found.” 9 763 F.3d at 239. sealed if specific, on the record findings are made But, as Erie County explained, the In any event, we require no findings in this 10 case to understand that the District Court sealed its opinion to 11 avoid disclosure of classified information. 12 We turn then to the three paragraphs of the District Court’s 13 opinion that Judge McMahon thought need not be withheld. Those 14 paragraphs briefly mention hypothetical situations that might 15 raise issues of waiver of attorney-client privilege with respect 16 to a non-compete clause in an employment contract. 17 unredacted order, she stated that the three paragraphs “contain 18 not a whit of classified material (the Government does not 19 suggest otherwise)” and would not “tend to reveal any classified 20 material.” SPA 176. In an 21 The Government contends that the three paragraphs at issue, 22 although containing no classified information, can be understood 15 Case 14-4432, Document 135, 10/22/2015, 1648733, Page16 of 22 1 to imply a fact that should not be disclosed. That fact is the 2 nationality of a person who has been considered as a possible 3 target of a drone attack. 4 say nor imply anything about such a nationality. 5 paragraphs, by considering various permutations of a law firm’s 6 advice concerning one or more different employment contracts, 7 might be understood to imply that drone attacks have been 8 considered for persons other than al-Awlaki, the subject of the 9 OLC-DOD Memorandum. However, the three paragraphs neither At most, the That fact, of course, is widely known, see, 10 e.g., W.J. Hennigan & David S. Cloud, “U.S. airstrikes in Somalia 11 signal a more direct role against Shabab,” Los Angeles Times, July 12 23, 2015 (reporting six drone strikes in one week, quoting U.S. 13 military officials),8 and has been publicly acknowledged by 14 senior United States military personnel, see, e.g., Lolita C. 15 Baldor, “U.S. Drone Strike In Afghanistan Kills ISIS Recruiter 16 Who Was Once Held In Guantanamo,” Huffington Post (Feb. 10, 2015) 17 (reporting statement of Pentagon spokesman Rear Admiral John 18 Kirby).9 19 8 Available at http://www.latimes.com/world/la-fg-us-airstrikessomalia-20150723-story.html. 9 Available at http://www.huffingtonpost.com/2015/02/10/dronekills-guantanamo-de_n_6656530.html. 16 Case 14-4432, Document 135, 10/22/2015, 1648733, Page17 of 22 1 The flaw in the Government’s argument is that a reader of 2 the District Court’s redacted opinion, with the three paragraphs 3 restored, could not identify the name or nationality of the 4 potential target. 5 the entire discussion of the document that mentions that target’s 6 name, and that document remains undisclosed. 7 even the remote possibility that a reader might conceivably infer 8 the nationality of the potential target from the three paragraphs 9 at issue, we will order redaction of the few words in the first 10 of these paragraphs to which the Government, on classification 11 review, has called to our attention. See Point IV, below. Indeed, the District Court’s opinion redacts To guard against 12 We agree with the District Court that the three paragraphs 13 need not be redacted, other than as ordered in Point IV, below, 14 and that the remainder of the Court’s opinion may remain sealed. 15 16 III. Disclosure of Redacted Portions of the June 23 Transcript 17 Because the Appellants have not seen the words that the 18 Government has redacted from the transcript of the June 23 ex 19 parte 20 opportunity to argue for disclosure of these redactions. 21 they have not seen the Government’s ex parte and in camera letter 22 of July 24 supporting those redactions. and in camera hearing, 17 they obviously have had no And Our own ability to Case 14-4432, Document 135, 10/22/2015, 1648733, Page18 of 22 1 explain our rulings with respect to the redactions is also 2 handicapped, but for a different reason: if redacted words touch 3 on matters entitled to remain secret, we can state a conclusion, 4 but little, if anything, else. 5 Initially, we note some concern as to the need for the 6 Government’s ex parte and in camera oral argument. When asked 7 at the closed hearing why such argument was needed at this stage 8 of the litigation but not at the earlier stage, the Government 9 offered two different reasons. First, the Government noted that 10 many of the bases for withholding the documents at issue are 11 classified or statutorily protected. 12 reason was that a large portion of the District Court’s opinion 13 was redacted. Neither reason precluded the Government from fully 14 presenting its arguments in briefs and affidavits, submitted ex 15 parte and in camera, as it has done throughout this litigation. 16 Any future request for ex parte and in camera oral argument will 17 have to be persuasively supported, even if the request is 18 unopposed, as it was in this case. 19 Then we were told the Nearly all of the redactions made by the Government in the 20 June 23 transcript refer to the contents of Exhibit E. 21 we have upheld nondisclosure of that Exhibit in this opinion, we 22 will uphold nondisclosure of those redactions. 18 Because Case 14-4432, Document 135, 10/22/2015, 1648733, Page19 of 22 1 One other redaction in the June 23 transcript has nothing to 2 do with Exhibit E. 3 identification of those in attendance at the closed hearing, 4 eight 5 affiliations; one provided only a name. 6 redacted that name and the name and agency affiliation of one 7 other person. Government In response to the panel’s request for personnel named themselves and their The Government has 8 We have substantial reservations about the Government’s 9 decision to bring to a closed ex parte hearing personnel whose 10 identity and affiliation it will not disclose to opposing 11 counsel, who were excluded from the hearing. 12 Government is entitled to keep secret the name of any undercover 13 operative, but there is no claim that the two people whose names 14 have been redacted serve in such capacity, and it would be a rare 15 case where such persons would need to attend an appellate 16 argument. 17 the two names is that they are CIA personnel, whose identities 18 are protected by the Central Intelligence Act and Exemption (3) 19 of FOIA, 5 U.S.C. § 552(b)(3). Of course, the The Government’s justification for nondisclosure of 20 Not having previously established ground rules concerning 21 disclosure of the identities of those attending the closed 22 hearing, we think it would be unfair to disclose the two names 19 Case 14-4432, Document 135, 10/22/2015, 1648733, Page20 of 22 1 that the Government has redacted. 2 closed 3 Government should either not bring personnel whose identities may 4 not be disclosed, or present, prior to the hearing, a substantial 5 justification for including such personnel. ex parte hearing should However, if the need for a arise 6 IV. Government’s Classification Review 7 After affording the Government in an the future, opportunity the for 8 classification review of our proposed opinion, we received, ex 9 parte and in camera, requests for a correction of a misstatement, 10 redactions from the opinion, and requests to redact some words 11 from the three paragraphs on page 9 of the District Court’s 12 opinion that Judge McMahon stated should be disclosed. 13 With respect to our proposed opinion, we have corrected the 14 misstatement and made all of the redactions requested by the 15 Government, except those concerning the three paragraphs at issue 16 on page 9 of the District Court’s opinion. 17 requested redactions from the District Court’s opinion, we rule 18 as follows: in the third line of the first full paragraph on page 19 9 of that opinion, the eight words following the word “opine” 20 will be redacted; in the 6th line of that paragraph, the six 21 words following the word “lawyer” will be redacted; in the 22 seventh line of that paragraph, “an” shall be changed to “a” and 20 With respect to the Case 14-4432, Document 135, 10/22/2015, 1648733, Page21 of 22 1 the next two words will be redacted. With these redactions, the 2 three paragraphs at issue may be disclosed. 3 these redactions render the resulting wording somewhat awkward. 4 We leave it to Judge McMahon on remand, if she chooses, to make 5 further redactions or some rephrasing of her language to smooth 6 out the wording without restoring the words we have deleted. We recognize that 7 The Government has requested that we either (1) submit our 8 revised opinion for further classification review or (2) maintain 9 our opinion under seal for 30 days to permit the Government an 10 opportunity to seek further appellate review. We will pursue the 11 second alternative and have instructed the Clerk accordingly. 12 Conclusion 13 We conclude that all the OLC documents at issue shall remain 14 undisclosed, except Exhibit K (the redacted version of Exhibit 15 B), which the District Court has authorized to be disclosed; that 16 the redacted portions of the District Court’s opinion shall 17 remain undisclosed, except for the three paragraphs on page 9, 18 (as redacted pursuant to Part IV of this opinion), which the 19 District Court wishes disclosed; and that the redactions from the 20 transcript of the June 23 hearing may remain undisclosed. 21 We therefore affirm the judgment, authorize the District 22 Court to disclose the three redacted paragraphs on page 9 of its 23 opinion (as redacted pursuant to Part IV of this opinion), and 21 Case 14-4432, Document 135, 10/22/2015, 1648733, Page22 of 22 1 maintain 2 Court’s opinion and the June 23, 2015, transcript. 3 undisclosed the redacted AFFIRMED and REMANDED. 22 portions of the District