Taking Judicial Notice Of The Government’s Prior Statements

In a Freedom of Information Act action seeking disclosure of documents and information concerning the government drone program, Second Circuit takes judicial notice under FRE 201 of statements made by the government following the ruling by the district court, in New York Times Co. v. U.S. Dept. of Justice, _ F.3d _ (2d Cir. June 23, 2014) (Nos. 13–422 (L), 13–445(CON))

FRE 201 provides for judicial notice of "a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." The Second Circuit recently considered an interesting and unusual form of judicial notice involving prior government statements.

Freedom of Information Act Request

The case involved a Freedom of Information Act (FOIA) action brought by the New York Times and others requesting disclosure of documents concerning the government drone program. The district court ultimately dismissed the action on summary judgment. See New York Times Co. v. U.S. Dept. of Justice, 915 F. Supp. 2d 508 (SDNY 2013).

On appeal, the Second Circuit ordered that redacted information about the program be disclosed and ordered that the district court hold an in camera hearing to determine whether other disclosures were required, among other matters.

Second Circuit Judicial Notice

On appeal, the government contended that the circuit could not consider other disclosures that were made after the ruling of the district court since FOIA decisions are normally "evaluated as of the time it was made and not at the time of a court's review." New York Times, _ F.3d at _, n.9 (citing Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”)). The circuit disagreed with this position and decided to take judicial notice of certain government statements:

Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here. See Fed. R. Evid. 201(b)(2). The Government's post-request disclosures “go[] to the heart of the contested issue,” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243 (D.C. Cir. 1991) (internal quotation marks omitted), and, as discussed below, are inconsistent with some of its prior claims, including that the Government has never acknowledged CIA’s operational involvement. Taking judicial notice of such statements is the same course taken by the Court of Appeals for the D.C. Circuit in its recent ACLU v. C.I.A. decision. 710 F.3d [422,] 431 [(D.C. Cir. 2013) (taking judicial notice of post-decision statements by the government)]. We conclude that it is the most sensible approach to ongoing disclosures by the Government made in the midst of FOIA litigation.

Moreover, the Government’s request for an opportunity to submit new material concerning public disclosures made after the District Court’s decision was honored by affording the Government an opportunity, after oral argument, to submit such material ex parte for in camera inspection, which the Government has done.

New York Times, _ F.3d at _, n.9

Conclusion

The New York Times case presents an interesting application of the judicial notice rule. The Second Circuit used the rule, as the D.C. Circuit had previously, to take judicial notice of certain government statements in the ongoing litigation.

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