Willis v. National Security Agency ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CALLEN WILLIS, )
)
Plaintiff, )
)
v. ) No. 17-cv-2038 (KBJ)
)
NATIONAL SECURITY AGENCY, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Callen Willis sincerely believes that federal government records might
represent her “as having been affiliated with and/or having been under contract with the
United States government minimally during 2014 and 2015[.]” (Compl., ECF No. 1,
¶ 3.) To determine whether she has been so misrepresented, in July of 2017, Willis
submitted a request to the National Security Agency (“NSA”) seeking “personal records
under the Privacy Act.” (Ex. A. to Decl. of Steven E. Thompson (“Thompson Decl.”),
ECF No. 11-3 at 18–37 (“PA/FOIA Request”), at 18.) 1 NSA construed Willis’s request
as one seeking intelligence records on herself under both the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, and the agency
responded that it was unable to confirm or deny the existence of any responsive records,
in accordance with its standard policy for requests seeking intelligence records. (See
Ex. B. to Thompson Decl., ECF No. 11-3 at 39–41 (“PA/FOIA Resp.”), at 39.) NSA
also searched its non-intelligence Privacy Act files for records containing Willis’s name
1
Page numbers cited herein refer to those that the Court’s electronic case-filing system automatically
assigns.
and social security number, and its FOIA files for records pertaining to litigation she
specified in her request, but the agency did not locate any records. (See Thompson
Decl. ¶¶ 15–16.) Willis has sued nevertheless, seeking to compel NSA to “make the
requested information promptly available to [her][.]” (Compl., Count I, ¶ 11(a).)
Before this Court at present is NSA’s motion for summary judgment, in which
the agency argues that it properly refused to confirm or deny the existence of any
intelligence records regarding Willis and further conducted a reasonable and adequate
search for non-intelligence records pertaining to her. (See Def.’s Mot. for Summ. J.
(“Def.’s Mot.”), ECF No. 11, at 1.) Willis has filed a one-paragraph document
opposing NSA’s motion (see Mot. Opposing Summ. J. (“Pl.’s Opp’n”), ECF No. 13, at
1), and she has also filed a separate one-paragraph motion asking this Court to compel
NSA to prepare a Vaughn index (see Mot. to Compel Preparation of a Vaughn Index
(“Mot. to Compel”), ECF No. 14, at 1). On March 29, 2019, this Court issued an order
that GRANTED NSA’s motion for summary judgment and DENIED Willis’s motion
seeking to compel preparation of a Vaughn index. (See ECF No. 17, at 1.) This
Memorandum Opinion explains the reasons for that Order. As discussed fully below,
this Court finds that NSA acted properly when it refused to confirm or deny the
existence of intelligence records pertaining to Willis, and that NSA conducted a
reasonable and adequate search for non-intelligence records responsive to Willis’s
request. This Court further finds that Willis is not entitled to a Vaughn index under the
circumstances presented in this case.
2
I. BACKGROUND
A. Willis’s Privacy Act/FOIA Request
On July 17, 2017, Willis sent a letter to NSA in which she made “a request for
personal records under the Privacy Act[,]” and in particular, records that are related to
(1) Willis’s employment at a cancer research center, (2) an MCAT exam that Willis
took in 2015, (3) a period of hospitalization that Willis endured in 2015, and (4) prior
FOIA litigation involving Willis. (PA/FOIA Request at 18; see also id. at 22.) NSA
initially “interpreted [this] request as being for NSA intelligence on [Willis]” under
both the FOIA and the Privacy Act, and informed Willis that it is the agency’s policy
not “to confirm or deny the existence of intelligence records on any and all individuals
who request them.” (PA/FOIA Resp. at 39.) NSA cited FOIA Exemptions 1 and 3, as
well as a parallel Privacy Act exemption (see id. at 39–40), and explained its underlying
rationale as follows:
To respond to your request, NSA would have to confirm or
deny the existence of intelligence records on you. Were we
to do so in your case, we would have to do so for every other
requester. This would enable, for example, a terrorist or other
adversary to file a FOIA request with us in order to determine
whether he or she was under surveillance or had evaded it.
This in turn would allow that individual to better assess
whether they could successfully act to damage the national
security of the United States. For such reasons, we can neither
confirm nor deny the existence or non-existence of the records
you requested.
(Id. at 39.)
On August 16, 2017, Willis appealed NSA’s response to her request. (See Ex. D
to Thompson Decl., ECF No. 11-3 at 51-59 (“PA/FOIA Appeal”), at 51.) NSA then
reconsidered Willis’s request, construing it as one for “NSA records regarding
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personnel or affiliates.” (See Thompson Decl. ¶ 34.) Based on this construction, NSA
reprocessed the request by searching affiliate-related Privacy Act systems of record (see
id. ¶¶ 15–16, 34; see also Ex. E to Thompson Decl., ECF No. 11-3 at 61-62 (“Appeal
Decision”), at 61). Specifically, the “NSA tasked its Security and Counterintelligence
group . . . to search its affiliate-related PA systems of record for any records containing
Ms. Willis’s name and social security number.” (Thompson Decl. ¶ 15.) NSA records
showed that Willis had “never been affiliated with this Agency”; therefore, “no PA
records on [Willis] were located.” (Appeal Decision at 61.) In addition, NSA also
searched its FOIA records for information regarding the FOIA litigation that Willis
specified in her request, but did not locate any responsive non-intelligence records.
(See Thompson Decl. ¶ 15.) With respect to intelligence records, NSA affirmed its
initial refusal to confirm or deny the existence of responsive records. (See Appeal
Decision at 61.)
B. Procedural History
On September 26, 2017, Willis filed the instant complaint, which is 35 pages in
length and to which she attaches 229 pages of exhibits; the complaint itself alleges one
claim under both the FOIA and the Privacy Act. (See Compl.) Willis explains that the
impetus behind her PA/FOIA Request is her concern that “she may have been
misrepresented as having been affiliated with and/or having been under contract with
the United States government minimally during 2014 and 2015” (id. ¶ 3), and that she
seeks the records from NSA “for purposes of correcting errors in an expedited manner”
(id., Jurisdiction and Parties, ¶ 4). 2
2
Willis’s complaint contends that she “has experienced a vast array of electronic errors from 2015-
present[,] too numerous to seem coincidental[,]” (Compl. ¶ 7), and that these circumstances “strongly
4
With respect to NSA’s response to her request, Willis claims that NSA’s search
for responsive records was inadequate because the agency limited its search to one
system of records, rather than search “ALL records in ALL responsive systems.” (Id.,
Count I, ¶ 4.) She also maintains that there is no legal basis for NSA to refuse to
confirm or deny the existence of responsive records without conducting any search,
asserting that “[s]hould records on [an] individual exist within an agency to which a
FOIA/PA request was sent, such an agency is required to either provide exemptions
and/or release properly redacted documents[.]” (Id., Count I, ¶ 7.) As relief, Willis
asks this Court to order NSA to search all its systems of records for all information
pertaining to her, including “any and all surveillance of the plaintiff over the course of
her lifetime[.]” (Id., Count I, ¶ 11(b).) For any records that the agency withholds or
redacts, Willis also requests that the agency be ordered to provide her with a Vaughn
index. (See id., Count I, ¶ 11(c).)
After Willis filed this lawsuit, NSA staff “reviewed the record in this case and
noticed that its September 12, 2017 appeal response” was incomplete. (Thompson
Decl. ¶ 16.) Specifically, the “affiliate-related system of records did not contain as
many types of records” as indicated in the appeal response; the “system only contained
personnel, security and partial training records.” (Id.) “As a result, . . . NSA tasked
two additional organizations, Occupational Health Services and HR External
Recruitment and Hiring, to search their systems of records containing medical and
indicate[] that [NSA] has information pertaining” to her (id.). The complaint then proceeds to describe
these “electronic errors” (id.)—they include, inter alia, problems Willis experienced contacting Apple
customer service regarding her iPhone (see Compl. ¶ 7(a)); issues with files in her computer (see id.
¶ 7(b)); unknown activity on her Gmail account (see id. ¶ 7(c)); discrepancies in her medical records
(see id. ¶ 7(e)); errors in her cell phone call logs (see id. ¶ 7(h); issues with her health insurance
electronic statements (see id. ¶ 7(q)); and problems with electronic payments to a hospital (see id.
¶ 7(r)).
5
applicant records in order to complete a fulsome search for Plaintiff’s PA records.”
(Id.) These searches did not locate any responsive records. (See id.)
NSA filed the motion for summary judgment that is the subject of this
Memorandum Opinion on March 23, 2018, and attached to it a declaration from Steven
E. Thompson, an NSA employee who oversees the agency’s FOIA/PA Office. (See
Def.’s Mot.; Thompson Decl.) In its motion, NSA argues that it properly invoked FOIA
Exemptions 1 and 3, along with § 552a(k)(1) of the Privacy Act, to refuse to confirm or
deny the existence of any intelligence records regarding Willis, because doing so would
reveal information that can be withheld pursuant to those statutory exemptions. (See
Mem. in Supp. of Def.’s Mot., ECF No. 11-1, at 13–19.) The agency further maintains
that it conducted a reasonable search for non-intelligence records responsive to Willis’s
request. (See id. at 19–22.)
Willis’s opposition to NSA’s motion, which was filed on May 14, 2018, states in
its entirety:
Plaintiff, CALLEN WILLIS [self, non-attorney], opposes the
NATIONAL SECURITY AGENCY’S (represented by Mr.
Daniel Schaefer) motion for summary judgment. Plaintiff,
CALLEN WILLIS [self, non-attorney] has a right to a Vaughn
Index. There is no legal basis for denying this right.
(Pl.’s Opp’n at 1 (brackets in original).) Willis also filed a separate motion asking this
Court to require NSA to produce a Vaughn index for every record it has withheld as
exempt. (See Mot. to Compel at 1.) In response to Willis’s motion seeking a Vaughn
index, NSA argues that it is not obliged to create a Vaughn index in cases where it
refuses to confirm or deny the existence of records. (Reply in Supp. of Def.’s Mot.&
6
Resp. in Opp’n to Pl.’s Mot. to Compel, ECF No. 16, at 2.) The parties’ motions are
now ripe for this Court’s consideration.
II. LEGAL STANDARDS
A. The FOIA And The Privacy Act
The FOIA “was enacted to facilitate public access to Government documents[,]”
U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation marks and
citations omitted), and as relevant here, it requires agencies to make records available
upon request, 5 U.S.C. § 552(a)(3)(A) (requiring that “each agency, upon any request
for records which (i) reasonably describes such records and (ii) is made in accordance
with published rules stating the time, place, fees (if any), and procedures to be
followed, shall make the records promptly available to any person”). “[T]he FOIA also
contains nine exemptions—i.e., specified circumstances under which disclosure is not
required.” Neuman v. United States, 70 F. Supp. 3d 416, 420–21 (D.D.C. 2014) (citing
5 U.S.C. § 552(b)). These exemptions must be construed narrowly, see Dep’t of the Air
Force v. Rose, 425 U.S. 352, 361 (1976), and the government bears the burden of
demonstrating that any withheld information falls within the claimed exemptions, see
Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). Two FOIA
exemptions are at issue in this case: Exemption 1, which authorizes agencies to
withhold agencies records that are “properly classified” pursuant to an Executive order,
5 U.S.C. § 552(b)(1), and Exemption 3, which protects information “specifically
exempted from disclosure by statute[,]” 5 U.S.C. § 552(b)(3).
“The Privacy Act governs federal agencies’ acquisition, maintenance, use, and
disclosure of information concerning individuals[,]” Jones v. Exec. Office of President,
7
167 F. Supp. 2d 10, 13 (D.D.C. 2001), and it “provides an individual with access to
government records that pertain to her which are contained in a system of records[.]”
Augustus v. McHugh, 825 F. Supp. 2d 245, 255 (D.D.C. 2011) (explaining that the
Privacy Act “allows the individual to review and have a copy made of all or any portion
of the records” (citing 5 U.S.C. § 552a(d))). Like the FOIA, the Privacy Act contains
certain exemptions and exceptions, including one that expressly incorporates FOIA
Exemption 1. See 5 U.S.C. § 552a(k)(1).
B. Summary Judgment In The Context of The Privacy Act And The
FOIA
Cases arising from an agency’s response to a request for records “typically and
appropriately are decided on motions for summary judgment.” Judicial Watch, Inc. v.
Dep’t of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014) (quoting Defs. of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). Under Rule 56 of the
Federal Rules of Civil Procedure, a court must grant summary judgment if the
pleadings, disclosure materials on file, and affidavits “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Judicial Watch, 25 F. Supp. 3d at 136 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). In the FOIA/Privacy Act
context, a district court conducts a de novo review of the record, and the responding
federal agency bears the burden of proving that it has complied with its statutory
obligations. See In Def. of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 83, 92–93
(D.D.C. 2008). Because the court must analyze all underlying facts and inferences in
the light most favorable to the requester, see Willis v. U.S. Dep’t of Justice, 581 F.
Supp. 2d 57, 65 (D.D.C. 2008), it is appropriate to enter summary judgment for an
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agency only if the agency proves that it has “fully discharged its obligations[,]” Moore
v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996); see also Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 508 (D.C. Cir. 2016) (finding that “a motion for summary
judgment cannot be deemed ‘conceded’ for want of opposition”).
“An agency seeking summary judgment in a case challenging its response to a
request for records, whether that request is made under the Privacy Act or FOIA, must
show that it conducted ‘a search reasonably calculated to uncover all relevant
documents, and, if challenged, must demonstrate beyond material doubt that the search
was reasonable.’” Williams v. Fanning, 63 F. Supp. 3d 88, 93 (D.D.C. 2014) (quoting
Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). A court may grant
summary judgment to the agency based on information provided in “a reasonably
detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exist) were
searched.” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)
(internal quotation marks, citation, and brackets omitted); see also Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1999) (highlighting the “reasonableness”
standard). Such agency affidavits attesting to a reasonable search “are afforded a
presumption of good faith[,]” and “can be rebutted only ‘with evidence that the
agency’s search was not made in good faith.’” Defs. of Wildlife v. U.S. Dep’t of
Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (quoting Trans. Union LLC v. FTC, 141 F.
Supp. 2d 62, 69 (D.D.C. 2001)).
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C. “Glomar Responses” To Records Requests
In addition to producing requested records or withholding requested records
under an established FOIA or Privacy Act exemption, an agency can also issue what has
come to be known as a “Glomar response” when a requester seeks identifiable records
from the agency. See, e.g., Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007); see also
ACLU v. CIA, 710 F.3d 422, 427 (D.C. Cir. 2013) (noting that the court reviews an
agency’s decision to provide a Glomar response de novo). 3 “A Glomar response
permits an agency to ‘refuse to confirm the existence of records’” when providing a
substantive response “‘would cause harm cognizable under’” under an exemption to
either the FOIA or the Privacy Act. Casey v. FBI, 302 F. Supp. 3d 209, 212 (D.D.C.
2018) (quoting Wolf, 473 F.3d at 374).
To justify a Glomar response, “the Government must show that the mere fact of
whether it has (or does not have) relevant records is protected from disclosure under an
exemption.” Kalu v. IRS, 159 F. Supp. 3d 16, 21 (D.D.C. 2016) (citing Wolf, 473 F.3d
at 374). And where “the information requested ‘implicat[es] national security, a
uniquely executive purview[,]’” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931
(D.C. Cir. 2012) (brackets in original) (quoting Ctr. for Nat’l Sec. Studies v. Dep’t of
Justice, 331 F.3d 918, 926–27 (D.C. Cir. 2003)), courts must “exercise[] caution” when
evaluating the government’s showing in this regard, id. A plaintiff “can overcome a
Glomar response by showing that the agency has already disclosed the fact of the
3
“Glomar” responses are “named for the Hughes Glomar Explorer, a ship used in a classified Central
Intelligence Agency project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to
recover the missiles, codes, and communications equipment onboard for analysis by United States
military and intelligence experts.’” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011)
(quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981)).
10
existence (or nonexistence) of responsive records, since that is the purportedly exempt
information that a Glomar response is designed to protect.” ACLU, 710 F.3d at 427.
D. Application Of The Governing Legal Standards To Pro Se Parties
Finally, this Court must be mindful of the fact that Willis is proceeding in this
matter pro se. The pleadings of pro se parties must be “liberally construed[,]” and a pro
se complaint, “however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (internal quotation marks and citations omitted); see also Haines v.
Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). Nonetheless, it is equally clear that
“[t]his benefit is not . . . a license to ignore the Federal Rules of Civil Procedure.”
Sturdza v. U.A.E., 658 F. Supp. 2d 135, 137 (D.D.C. 2009). When faced with a motion
for summary judgment, a pro se plaintiff, just like a represented party, must
demonstrate that there is a genuine issue of material fact for trial or that there is no
such issue and the undisputed facts require judgment in the plaintiff’s favor. See
Grimes v. Dist. of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015). Moreover, a pro se
plaintiff is obliged to comply with a court’s rules regarding responses to statements of
material fact and the need to identify record evidence that establishes each element of
her claim for relief. See id. (explaining that a pro se plaintiff “cannot rely on the
allegations of her own complaint in response to a summary judgment motion, but must
substantiate them with evidence”).
III. ANALYSIS
Willis’s submission in opposition to NSA’s motion for summary judgment offers
no substantive response to the agency’s arguments that it is entitled to summary
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judgment. (See Sec. I.B, supra.) As such, this Court accepts as true the unrebutted
facts contained in NSA’s declaration and the agency’s statement of material facts
regarding its responses to Willis’s records request. See Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (holding
that, where a responding party does not file a statement of material facts in dispute, “the
district court is to deem as admitted the moving party’s facts”). Consistent with D.C.
Circuit precedent, this Court has proceeded to analyze whether or not NSA is entitled to
summary judgment based on these undisputed facts and the governing law. See Winston
& Strawn, LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016).
For the reasons explained fully below, the Court has concluded that NSA
properly refused to confirm or deny the existence of any intelligence records responsive
to Willis’s FOIA/Privacy Act request, and that the agency satisfied its duty to conduct a
reasonable search for non-intelligence records responsive to Willis’s request. The
Court has also determined that Willis is not entitled to a Vaughn index. Therefore, the
Court has awarded NSA summary judgment with respect to Willis’s complaint.
A. NSA’s Glomar Response Did Not Violate The FOIA Or The Privacy
Act
As explained above, because NSA construed Willis’s request as one seeking
NSA intelligence records about herself, the agency issued a standard Glomar response,
in which it refused to confirm or deny the existence of any responsive records based on
FOIA Exemptions 1 and 3, as well as section 552a(k)(1) of Title 5 of the U.S. Code.
(See PA/FOIA Resp. at 39–40.) 4 Consequently, this Court must determine whether
FOIA Exemptions 1 and 3, and/or the Privacy Act, permitted NSA to forego confirming
4
Section 552a(k)(1) is a section of the Privacy Act that expressly incorporates FOIA Exemption 1.
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or denying the existence of any intelligence files pertaining to Willis, because doing so
would reveal information that can properly be withheld. See, e.g., Wolf, 473 F.3d at
374 (explaining that an agency my provide a Glomar response to a FOIA request
“where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA
exemption.” (citation omitted)); Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426
(D.C. Cir. 2013) (same). This Court readily concludes that NSA’s response to Willis’s
request was proper, as explained below.
1. FOIA Exemption 1 And Section 552a(k)(1) Permit NSA To Issue
Glomar Reponses Regarding Requests For Records Pertaining To
Individuals
FOIA Exemption 1 (and 5 U.S.C. § 552a(k)(1) by incorporation) protects
information that is “(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy
and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). “Thus, an agency attempting to withhold information under Exemption 1
must show that it ‘complies with classification procedures established by the relevant
executive order and withholds only such material as conforms to the order’s substantive
criteria for classification.’” Elec. Privacy Info. Ctr. v. Dep’t of Justice, 296 F. Supp. 3d
109, 124 (D.D.C. 2017) (quoting Mobley v. DOJ, 870 F. Supp. 2d 61, 66 (D.D.C. 2012))
(alteration omitted).
NSA relies on Executive Order 13,526, Classified National Security Information
(Dec. 29, 2009), see 3 C.F.R. § 298, which delineates four conditions that must be met
for information to be deemed “classified” properly, one of which is that “the
information falls within one or more of the categories of information listed in section
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1.4 of this order[.]” Exec. Order 13,526 of Dec. 29, 2009 § 1.1(3), Classified National
Security Information, 75 Fed. Reg. 705, 707 (Jan. 5, 2010) (“E.O. 13,526”). 5 In section
1.4, the Executive order further references eight specific categories of information that
“could reasonably be expected to cause identifiable or describable damage to the
national security[,]” including information pertaining to “intelligence activities
(including covert action) [and] intelligence sources or methods[.]” E.O. 13,526 § 1.4(c).
“Thus, if information that is responsive to a FOIA request fits into any of the eight
categories, and if an original classifying authority has designated the information
classified based on that authority’s determination that the unauthorized disclosure of the
information reasonably could be expected to result in damage to the national security,
the information has properly been deemed ‘classified’ and the government can invoke
Exemption 1 to withhold the information from disclosure under the FOIA.” Elec.
Privacy Info. Ctr., 296 F. Supp. 3d at 124–25.
Here, NSA’s declarant, Steven E. Thompson, has stated that he is a TOP
SECRET original classification authority (Thompson Decl. ¶ 2), and also that
acknowledging “the existence or nonexistence of operational intelligence information”
regarding any individual—including Willis—would reveal information in one of E.O.
5
The Executive order also requires that:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of
the United States Government; . . . and
(4) the original classification authority determines that the unauthorized disclosure of
the information reasonably could be expected to result in damage to the national
security, which includes defense against transnational terrorism, and the original
classification authority is able to identify or describe the damage.
E.O. 13,526.
14
13,526’s eight categories; namely, “intelligence activities (including covert action),
intelligence sources and methods, or cryptology” (id. ¶ 20). This is because, according
to Thompson, if the NSA were to “confirm or deny publicly in any case whether or not
it has such records,” the agency would thereby “reveal whether or not NSA engaged in
certain, or any, intelligence activities, and/or did or did not target individual
communications for collection.” (Id. ¶ 17.) 6
Thompson further declares that “a positive or negative response” to a FOIA
request seeking confirmation of the existence of records regarding individuals
“reasonably could be expected to cause exceptionally grave damage to national
security” because “it would reveal NSA capabilities, activities, and intelligence
priorities, which in turn could inhibit [signals intelligence] collection and affect NSA’s
ability to counter threats to the national security of the United States.” (Id. ¶ 21.)
Willis is deemed to have conceded these facts by not responding to them in her
opposition papers, see Jackson, 101 F.3d at 154, and NSA’s representations are the only
factual predicate that the invocation of Exemption 1 or 5 U.S.C. § 552a(k)(1) requires,
see Elec. Privacy Info. Ctr., 296 F. Supp. 3d at 124–25.
6
Thompson provides an example of the threat that such a revelation poses when it is considered
collectively with the agency’s responses to other FOIA requests (and not in isolation (see Thompson
Decl. ¶ 23)):
For example, if NSA were to admit publicly in response to a FOIA request that no
information about Person X or Y exists, but in response to a separate FOIA request about
Person Z state[s] only that no response could be made, this would give rise to the
inference that Person Z is or has been a target. Over time, the accumulation of these
inferences would disclose the targets and capabilities, and therefore the sources and
methods, of NSA’s [signals intelligence] activities and functions, and inform our
adversaries of the degree to which NSA is aware of some of their operatives or can
successfully exploit particular communications.
(Id. ¶ 22.) For this reason, NSA consistently issues Glomar responses “in all cases where the existence
or nonexistence of records responsive to a FOIA request is a classified fact[.]” (Id. ¶ 24.)
15
In short, like many other courts that have considered NSA’s responses to similar
first person requests for records, this Court concludes that NSA’s Glomar response to
Willis’s records request is logically and plausibly rooted in national security concerns
regarding the revelation of classified information (i.e., NSA’s intelligence collection
efforts, when FOIA requests such as these are viewed collectively) and, therefore, to the
extent that Willis’s request sought NSA intelligence information about herself, NSA’s
response does not violate the FOIA or the Privacy Act. See, e.g., People for the Am.
Way Found. v. Nat'l Sec. Agency/Cent. Sec. Serv., 462 F. Supp. 2d 21, 31 (D.D.C. 2006)
(holding that NSA properly issued a Glomar response to a request for records related to
surveillance of the plaintiff because confirming that a person’s activities are not of
intelligence interest or that NSA could not collect intelligence information on activities
“would allow our adversaries to accumulate information and draw conclusions about
NSA’s technical capabilities, sources, and methods” (internal quotation marks
omitted)); see also Carter v. Nat’l Sec. Agency, 962 F. Supp. 2d 130, 140 (D.D.C. 2013)
(finding that agency properly issued a Glomar response to first-person request for
records, based on Exemptions 1 and 3), aff'd, No. 13-5322, 2014 WL 2178708 (D.C.
Cir. Apr. 23, 2014).
2. FOIA Exemption 3 Permits NSA To Issue Glomar Reponses
Regarding Requests For Records Pertaining To Individuals
FOIA’s Exemption 3 provides an independent and alternative justification for the
NSA’s Glomar response to Willis’s request for intelligence records regarding herself.
Exemption 3 permits an agency to withhold records in response to a FOIA request
where a statute “specifically exempt[s]” the requested information from disclosure, so
long as that statute either “requires that the matters be withheld from the public in such
16
a manner as to leave no discretion on the issue[,]” or “establishes particular criteria for
withholding or refers to particular types of matters to be withheld[.]” 5 U.S.C.
§ 552(b)(3). Because these two conditions are listed in the disjunctive, the statute at
issue “need satisfy only one of them to qualify under Exemption 3.” Gov’t
Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420, 428 (D.D.C. 2016)
(citation omitted). “However, notably, [b]efore a court inquires into whether any of the
[two statutory] conditions [for withholding information] are met . . . it must first
determine whether the statute is a withholding statute at all by deciding whether it
satisfies the threshold requirement that it specifically exempt matters from disclosure.”
Elec. Privacy Info. Ctr., 296 F. Supp. 3d at 120 (alterations in original) (internal
quotation marks and citation omitted). 7
Here, NSA invokes three separate statutes as justifying its Exemption 3
withholdings. (See Def.’s Mem. at 16–18.) First, it points to Section 6 of the National
Security Act of 1959, which provides in relevant part that “nothing in this chapter or
any other law . . . shall be construed to require the disclosure of the organization or any
function of the National Security Agency, or any information with respect to the
activities thereof[.]” 50 U.S.C. § 3605(a). NSA also relies on 18 U.S.C. § 698, which
makes it a federal crime to disclose “the communication intelligence activities of the
United States or any foreign government[,] or obtained by the processes of
7
In determining whether a statute qualifies as an Exemption 3 withholding statute, a court must first
“look to the language of the statute on its face[.]” Gov’t Accountability Project, 206 F. Supp. 3d at 429
(internal quotation marks, citation, and alteration omitted). “In other words, a statute that is claimed to
qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure.”
Elec. Privacy Info. Ctr., 296 F. Supp. 3d at 120 (internal quotation marks and citation omitted). If the
statute does contain the requisite exemption language, “the court next determines whether the statute
satisfies either of the two statutory disjunctive conditions for withholding the responsive information.”
Id. (citations omitted).
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communication intelligence from the communications of any foreign government[.]” 18
U.S.C. § 798(a)(3)–(4). Third and finally, NSA points to Section 102A(i)(1) of the
National Security Act of 1947, which requires the Director of National Intelligence to
“protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C.
§ 3024(i)(1).
It is well established that each of these statutes qualifies as an Exemption 3
withholding statute, because each specifically exempts particular material from
disclosure and satisfies one aspect of Exemption 3’s disjunctive tests. See, e.g.,
DiBacco v. U.S. Army, 795 F.3d 178, 199 (D.C. Cir. 2015) (noting that Section
102A(i)(1) is an Exemption 3 withholding statute that mandates withholding of
intelligence sources and methods); Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C.
Cir. 2009) (finding that 18 U.S.C. § 798 is an Exemption 3 withholding statute that
mandates withholding of the covered material); Hayden v. NSA, 608 F.2d 1381, 1389–
90 (D.C. Cir. 1979) (explaining that Section 6 is an Exemption 3 withholding statute
that specifies information to be withheld). Thus, the question this Court must address is
whether these statutes cover the material at issue in this suit.
Thompson has stated that “[t]he information at issue here falls squarely within
the scope of several statutes.” (Thompson Decl. ¶ 28.) Specifically, the act of
disclosing whether or not any intelligence files pertaining to Willis exist purportedly
would reveal “information about NSA’s [signals intelligence] efforts [that] directly
relates to the Agency’s core functions and activities and to intelligence sources and
methods[,]” (Thompson Decl. ¶ 29), and thus would implicate the proscriptions of
Section 6 of the National Security Act. Thompson further states that confirmation of
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the existence of such files would reveal classified information “concerning the
communications activities of the United States” in violation of 18 U.S.C. § 798. (See
id. ¶ 30.) Finally, Thompson explains that indicating whether NSA has any intelligence
files on Willis would reveal NSA intelligence sources and methods in contravention of
Section 102A(i)(1) of the National Security Act of 1947. (See id. ¶ 31.)
Thompson avers that “Congress has enacted these three statutes to protect the
fragile nature of NSA’s [signal intelligence] efforts[,]” and that, for the reasons
explained above, these “activities and functions, and [NSA’s] intelligence sources and
methods, would be revealed if NSA confirmed or denied the existence of information
responsive to [Willis’s] FOIA request.” (Id. ¶ 32; see also id. ¶¶ 22–24 (explaining that,
unless NSA invokes the Glomar response consistently—both in cases in which such
records exist and those in which records do not—our adversaries could discover and
exploit inferences regarding NSA’s targets and intelligence-gathering capabilities).)
Willis has offered no response to these assertions, and this Court finds them to be both
logical and plausible. See Wolf, 473 F.3d at 374–75; see also Jackson, 101 F.3d at 154.
Therefore, the Court accepts the agency’s statements in this regard, and it finds that
NSA has established that the agency’s Exemption 3 Glomar response does not violate
the FOIA or the Privacy Act.
B. NSA Conducted An Adequate Search For Non-Intelligence Records
As noted above, in addition to construing Willis’s request as one for intelligence
records about herself, NSA also construed Willis’s request for “personal records under
the Privacy Act” (FOIA/PA Request at 18) as one seeking “[Privacy Act] records
containing information about her” (see Thompson Decl. ¶ 15), and thus the agency
searched “its affiliate-related PA systems of record for any records containing Ms.
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Willis’s name and social security number” (id. ¶ 15; see also id. (explaining that “NSA
tasked its Security and Counterintelligence group” with search responsibilities because
that group “maintains records of all NSA affiliates and personnel who have visited
NSA”)). NSA also searched its FOIA records for information regarding Willis’s FOIA
request to, and litigation involving, the CIA. (See FOIA/PA Request at 18; Thompson
Decl. ¶ 15.) Neither of these searches revealed any responsive records. (See Appeal
Decision at 61.) NSA then “tasked two additional organizations, Occupational Health
Services and HR External Recruitment and Hiring, to search their systems of records
containing medical and applicant records[,]” and again these searches did not unearth
any documents responsive to Willis’s request. (Thompson Decl. ¶ 15.) Willis has not
refuted any of these factual assertions. (See Pl.’s Opp’n.)
An agency in receipt of a request under the FOIA or the Privacy Act must
construe that request liberally, see Truitt v. Dep’t of State, 897 F.2d 540, 544–45 (D.C.
Cir. 1990) (citing Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d
885, 890 (D.C. Cir. 1995)), and “the touchstone when evaluating the adequacy of an
agency’s search for records in response to a FOIA request is reasonableness.”
Muckrock, LLC v. CIA, 300 F. Supp. 3d 108, 125 (D.D.C. 2018); see also Physicians for
Human Rights v. U.S. Dep’ t of Def., 675 F. Supp. 2d 149, 164 (D.D.C. 2009) (“[I]n
responding to a FOIA request, an agency is only held to a standard of reasonableness;
as long as this standard is met, a court need not quibble over every perceived
inadequacy in an agency’s response, however slight.”). Based on the uncontested
details laid out in the declaration that NSA has submitted, this Court easily finds that
NSA liberally and reasonably construed Willis’s records request, and that it conducted a
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reasonable search of its Privacy Act files and FOIA litigation files for responsive
records. As such, the agency is entitled to summary judgment with respect to its “no
records” response for non-intelligence files responsive to Willis’s request.
C. Willis Is Not Entitled To A Vaughn Index
Finally, this Court turns to Willis’s repeated requests for a Vaughn index. (See
Pl.’s Mot. to Compel Preparation of a Vaughn Index, ECF No. 4; Pl.’s Mot. to Compel
Preparation of a Vaughn Index, ECF No. 7; Mot. to Compel.) A Vaughn index is a
submission from an agency in a FOIA case that provides details regarding an agency’s
FOIA withholdings “to enable the Court to determine whether documents properly were
withheld.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C.
2009) (citations omitted). Moreover, an obligation to create a Vaughn index only
attaches after an agency searches for documents and withholds documents or portions
thereof based on particular FOIA exemptions. Vaughn v. Rosen, 484 F.3d 820, 827
(D.C. Cir. 1973).
In cases such as this one—i.e., where a Glomar response is appropriate—“the
agency need not conduct any search for responsive documents or perform any analysis
to identify segregable portions of such documents[,]” Lindsey v. FBI, 271 F. Supp. 3d 1,
4 (D.D.C. 2017) (alteration, internal quotation marks, and citation omitted), and
because the agency has not searched for any information, there is nothing to index.
Likewise, there is nothing for NSA to index with respect to Willis’s request for non-
intelligence files under the Privacy Act, because NSA’s searches did not locate any
responsive documents, and the agency is therefore not withholding any records. (See
Thompson Decl. ¶ 34.)
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IV. CONCLUSION
Based on NSA’s submission, this Court concluded that the agency fulfilled its
obligations under the FOIA and the Privacy Act in responding to Willis’s request.
Accordingly, as stated in the Order issued on March 29, 2019, NSA’s motion for
summary judgment was GRANTED, and Willis’s motion to compel a Vaughn index
was DENIED. That Order is now a final, appealable order.
DATE: April 30, 2019 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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