Carter v. National Security Agency , 962 F. Supp. 2d 130 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
:
GLEN CARTER, :
:
Plaintiff, :
:
v. : Civil Action No. 12-0968 (CKK)
:
NATIONAL SECURITY AGENCY, :
:
Defendant. :
___________________________________ :
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Motion for Summary Judgment [ECF No.
10]. 1 For the reasons discussed below, the motion will be granted.
I. BACKGROUND
In February 2006, Plaintiff submitted a request to the National Security Agency (“NSA”
or “Agency”) for the following information:
Information received from the Canadian authorities in the early
nineties alerting [NSA] and calling for concern letters I am
suspected of having written to a television Christian ministry.
1
Also before the Court are “Plaintiff’s Memorandum of Points and Authorities in Support
of his Cross-Motion for Summary Judgment” and “Plaintiff’s Memorandum of Points and
Authorities in Support of His Reply to Defendant’s Motion for Summary Judgment” [ECF No.
19]. These documents do not comply in form and substance with Rule 56 of the Federal Rules of
Civil Procedure and Local Civil Rule 7(h), and Plaintiff’s cross-motion for summary judgment
will be denied. Instead, the Court construes these submissions together as Plaintiff’s opposition
to Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”), the page numbers of which are
designated by ECF.
1
Information portraying me as a dangerous person or, in the
alternative, a suspected terrorist.
Information relating to the cross border transfer of personal
information of all descriptions to the United States.
Information relating to the interception of communications of all
descriptions.
Information relating to the seeking of a remedy to a suspected
criminal offence.
Information relating to the issuance of an order, adverse in effect,
curtailing my civil liberties in Canada, Barbados and the United
Kingdom.
Information relating to a restriction of my freedom of movement
and the withholding of individual rights and freedoms under law.[2]
Def.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J., Decl. of Diane M. Janosek (“Janosek
Decl.”), Ex. 1 (Letter to NSA, Attn: FOIA/PA Office, from Plaintiff dated February 14, 2006) at
2; see Compl. at 2–3 (page numbers designated by ECF). 3 NSA processed the request under the
Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552. Janosek Decl. ¶ 9 n.1. 4
2
Plaintiff apparently wrote letters “to a television Christian Ministry” in the United States,
and he believes that personal information about him has been “exported from Canada via the
Canadian authorities (Royal Canadian Mounted Police, Canadian Security Service Intelligence
Agency) via Interpol Ottawa to the Central Intelligence Agency,” subsequently “transferred from
the Central Intelligence Agency to the National Security Agency,” resulting in the “invasion of
[his] personal privacy through technological methods employed by US, Canadian and British
authorities.” Def.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J., Decl. of Diane M.
Janosek, Ex. 3 (Appeal under Freedom of Information Act, 5 U.S.C. sect. 552, As Amended By
Public Law No. 104-231, 110 Stat. 3048) at 2. Allegedly “writ[ten] during a very difficult phase
of [Plaintiff’s] life,” these letters “criticized the US, the media and corporate America,” and
“later broadened in scope to encompass and address other social issues.” Id., Ex. 3 at 6. Plaintiff
“never intended to cause public harm and dismay.” Compl. at 5.
3
The Court construes Plaintiff’s “Petition for Review” and the attached “Plaintiff’s
Memorandum in Appeal of Administrative’s [sic] Agency’s Internal Appeal Decision of
September 14, 2006,” together as a civil complaint (“Compl.”).
4
NSA declined to process the request under the Privacy Act, see 5 U.S.C. § 552a, because
the Privacy Act applies only to United States citizens. Janosek Decl. ¶ 9 n.1. Plaintiff has
identified himself as “a Canadian citizen who has retained British citizenry (a dual citizen, that
is).” Pl.’s Opp’n at 1.
2
“To the extent that Plaintiff’s request could be considered a request for intelligence
information,” NSA treated it as one “for records on the surveillance, targeting, and/or domestic
collection of [information pertaining to Plaintiff] by NSA.” Janosek Decl. ¶ 9. Relying on
Exemptions 1 and 3, NSA denied the request in its entirety and explained its reasons as follows:
We have determined that the fact of the existence or non-existence
of the materials you request is a currently and properly classified
matter in accordance with Executive Order 12958, as amended.
Thus, your request is denied pursuant to the first exemption of the
FOIA which provides that the FOIA does not apply to matters that
are specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign relations and are, in fact[,] properly classified pursuant
to such Executive Order.
In addition, this Agency is authorized by various statutes to protect
certain information concerning its activities. The third exemption
of the FOIA provides for the withholding of information
specifically protected from disclosure by statute. Thus, your
request is also denied because the fact of the existence or non-
existence of the information is exempted from disclosure pursuant
to the third exemption. The specific statutes applicable in this case
are Title 18 U.S. Code 798; Title 50 U.S. Code 403-1(i); and
Section 6, Public Law 86-36 (50 U.S. Code 402 note).
Id., Ex. 2 (Letter to Plaintiff from Louis F. Giles, Director of Policy, NSA, dated April 20, 2006,
regarding FOIA Case No. 48604) at 2.
Plaintiff filed an administrative appeal of NSA’s initial determination on June 19, 2006.
See generally id., Ex. 3 (Appeal under Freedom of Information Act, 5 U.S.C. sect. 552, As
Amended By Public Law No. 104-231, 110 Stat. 2048). NSA acknowledged its receipt of the
appeal on August 3, 2006. Id., Ex. 4 (Letter to Plaintiff from Ariane E. Cerlenko, Associate
General Counsel, NSA, regarding Case No. 48604/Appeal No. 3145, dated August 3, 2006).
NSA’s initial determination was affirmed, and it was determined that “the appropriate response
3
to [Plaintiff’s] request is to continue to neither confirm nor deny the existence or non-existence
of the materials . . . request[ed].” Id., Ex. 5 (Letter to Plaintiff from John Inglis, Freedom of
Information Act/Privacy Act Appeals Authority, dated September 14, 2006) at 2. The
affirmance was explained in part as follows:
Regardless of whether NSA has records related to you, or any
individual, NSA can neither confirm nor deny alleged activities or
targets. To do otherwise when challenged under the FOIA would
result in the exposure of intelligence information, sources, and
methods and would severely undermine surveillance activities in
general. For example, if NSA denied allegations about intelligence
activities or targets in cases where such allegations were false (e.g.,
we told one FOIA requester that we had no records), but remained
silent in cases were the allegations were accurate, it would tend to
reveal that the individuals in the latter cases were targets. Any
further elaboration concerning these matters would reveal
information that is currently and properly classified under
Executive Order 12958, as amended.
Id.Plaintiff challenges this administrative appeal decision “refusing him access to personal
information believed to be contained in intelligence records.” Compl. at 2. He alleges that NSA
“failed to properly invoke a Glomar [response] and to properly support this response with
applicable statutes . . . by properly stating the precise grounds on which access to responsive
records, if any, was denied.” 5 Id. at 3. According to Plaintiff, the issues presented are:
(a) did NSA properly rely on the exempt provisions of FOIA, (b)
was a Glomar response standard of refusal . . . appropriate to the
categories of personal information requested, (c) did the Agency
make proper use of the general exemption review standards
5
A Glomar response “takes its name from the Hughes Glomar Explorer, a ship built (we
now know) to recover a sunken Soviet submarine, but disguised as a private vessel for mining
manganese nodules from the ocean floor.” Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 678
F.3d 926, 931 n.2 (D.C. Cir. 2012) (quoting Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004)
(internal quotation marks omitted)). As is discussed below, an agency providing a Glomar
response neither confirms nor denies the existence of information responsive to a FOIA request.
See Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982).
4
established in non Glomar cases, and (d) did the Agency properly
meet the burden of proof required of it in order to sustain its action.
Id.II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court
will grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). In a FOIA
action to compel production of agency records, the agency “is entitled to summary judgment if
no material facts are in dispute and if it demonstrates ‘that each document that falls within the
class requested either has been produced . . . or is wholly exempt from the [FOIA’s] inspection
requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001)
(quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
Summary judgment may be based solely on information provided in an agency’s
supporting affidavits or declarations if they are relatively detailed and when they describe “the
documents and the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record [or] by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge
an agency’s showing that it complied with the FOIA, the [P]laintiff must come forward with
‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has
5
improperly withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113,
119 (D.D.C. 2010) (quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
In a FOIA case, the Court determines de novo whether an agency properly withholds
information under a claimed exemption. See, e.g., King v. U.S. Dep’t of Justice, 830 F.2d 210,
217 (D.C. Cir. 1987). This is so even if national security matters are at issue. See Halperin v.
CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). Deference is accorded, however, to an agency’s
expertise in national security matters. See, e.g., Taylor v. Dep’t of the Army, 684 F.2d 99, 109
(D.C. Cir. 1982) (according “utmost deference” to classification affidavits); Goland, 607 F.2d at
352.
B. SIGINT and the NSA’s National Security Mission
The NSA’s declarant explains that the Agency is “a separately organized agency within
the Department of Defense under the direction, authority, and control of the Secretary of
Defense.” Janosek Decl. ¶ 4. Its “foreign intelligence mission includes the responsibility to
collect, process, analyze, produce, and disseminate signals intelligence (SIGINT) information, of
which communications intelligence (COMINT) is a significant subset, for (a) national foreign
intelligence purposes, (b) counterintelligence purposes, and (c) the support of military
operations.” Id. NSA performs its SIGINT mission by “exploit[ing] foreign electromagnetic
signals to obtain intelligence information necessary for the national defense, national security, or
conduct of foreign affairs.” Id. ¶ 5. The declarant further explains that, through “a sophisticated
worldwide SIGINT collection network,” the Agency “acquires, among other things, foreign and
international electromagnetic communications.” Id. The technological infrastructure supporting
6
these efforts, she states, “has taken years to develop at the cost of billions of dollars and untold
human effort,” and it “relies on sophisticated collection and processing technology.” Id.
Intelligence information is gathered and analyzed for two main purposes: “to direct
United States resources as necessary to counter threats” and “to direct the foreign policy of the
United States.” Id. ¶ 6. The declarant states that “intelligence produced by NSA is often
unobtainable by other means.” Id. Such information is distributed to the President of the United
States, various senior government officials, military departments and law enforcement agencies,
and it may include information relevant to “military order of battle[,] threat warnings and
readiness[,] arms proliferation[,] terrorism[,] and foreign aspects of international narcotics
trafficking.” Id. The declarant further states that “NSA’s ability to produce foreign intelligence
information depends on its access to foreign and international electronic communications.” Id. ¶
7. The technology used in these processes “is both expensive and fragile,” and “[p]ublic
disclosure of either the capability to collect specific communications or the substance of the
information itself can easily alert targets to the vulnerability of their communications.” Id.
C. Interpretation of Plaintiff’s FOIA Request
The NSA treated Plaintiff’s FOIA request as if it “encompass[ed] a request for
information regarding whether [Plaintiff] was a target of NSA’s surveillance efforts.” Janosek
Decl. ¶ 11; see id. ¶ 9. According to Plaintiff, the NSA “erred right from the start by
misunderstanding and misinterpreting this request for something other than that which was
intended by the Plaintiff, by assuming that his request was a request for records on surveillance,
targeting, and the domestic collection of responsive records.” Pl.’s Mem. of P. & A. in Supp. of
his Cross-Mot. for Summ. J. (“Pl.’s Opp’n”) at 4 (emphasis in original); see id. at 7. His request
7
“refer[red] to ‘information’ and not [‘]intelligence information’ per se.” Id. at 4. According to
Plaintiff, “both NSA and the CIA have been collecting and processing personal information on
him not on national security grounds for a Glomar response to have effect but out of service to
special media interests.” Id. “Only 1/7th of [his] access request (item[] No. 4, that is) related to
the Plaintiff possibly being the target of surveillance activities conducted by NSA whilst the
other aspects to it refer to personal information which would ordinarily fall outside the scope of
Exemptions 1 and 3,” such that a “Glomar response should in no way be used” with respect to
the other six items listed in his request. Id. at 12.
By means of this FOIA request, Plaintiff seeks “personal information believed to be
caught up in intelligence records believed to be in the custody, control and management of the
Agency.” Id. at 1. He apparently is under the impression that NSA not only is able to separate
out “personal” information from all the information that the Agency would have or could have
acquired only through SIGINT, but also is required do so. In light of the origin, function, and
mission of the NSA, it is reasonable for its staff to have interpreted Plaintiff’s FOIA request as
one for information about him which the Agency obtained in the course of its communications
surveillance activities. After all, Plaintiff did seek “[i]nformation relating to the interception of
communications of all descriptions.” Janosek Decl., Ex. 1 (FOIA request). And for the reasons
discussed below, NSA’s Glomar response is appropriate.
D. Exemption 1
Exemption 1 protects matters that are “(A) specifically authorized under criteria
established by an Executive [O]rder to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive [O]rder[.]” 5 U.S.C. §
8
552(b)(1). Pursuant to Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), information
may be classified only if all of the following conditions are met:
(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;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; 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.
Id. § 1.1(a). Information may be classified either at the “top secret,” “secret,” or “confidential”
level, id. § 1.2(a), and such classified information must fall within one of the following
categories:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action), intelligence
sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States,
including confidential sources;
(e) scientific, technological, or economic matters relating to the
national security;
(f) United States Government programs for safeguarding nuclear
materials or facilities;
(g) vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to
the national security; or
(h) the development, production, or use of weapons of mass
destruction.
9
Id. § 1.4 (emphasis added). 6
The declarant, who is a “TOP SECRET original classification authority,” Janosek Decl. ¶
2, explains that “[c]onfirming the existence or nonexistence of responsive records would disclose
information that is currently and properly classified TOP SECRET . . . because such a positive or
negative response could reasonably be expected to cause exceptionally grave damage to national
security,” id. ¶ 14. She further explains:
Confirmation by NSA that a person’s activities are not of a foreign
intelligence interest or that NSA is unsuccessful in collecting
foreign intelligence information in [his] activities on a case-by-
case basis would allow our adversaries to accumulate information
and draw conclusions about the NSA’s technical capabilities,
sources, and methods. NSA’s adversaries would have a roadmap
instructing them as to which communication modes and personnel
remain safe or are successfully defeating NSA’s capabilities. For
example, if NSA were to admit publicly in response to [a FOIA]
request that no information about Persons X, Y, and Z exist, but in
response to a separate . . . request about Person T state only that
the Agency can neither confirm nor deny the existence of such
6
The Agency initially relied on Executive Order No. 12,958, 60 Fed. Reg. 19825 (Apr. 17,
1995), which in relevant part read:
(c) intelligence activities (including special activities), intelligence
sources or methods, or cryptology; . . .
(g) vulnerabilities or capabilities of systems, installations, projects
or plans relating to the national security.
Id. § 1.5. Executive Order 12,958 “has since been revoked and replaced by Executive Order
13[,]526 . . . .” Janosek Decl. ¶ 9 n.2.
“[A] reviewing court [assesses] the propriety of a classification decision purportedly
supporting an Exemption 1 claim in terms of the [E]xecutive [O]rder in force at the time the
agency’s ultimate classification decision is actually made.” King, 830 F.2d at 217. The
declarant does not provide the date on which NSA made its initial classification decision. The
language of subparagraphs (c) and (g) of both Executive Orders is substantially similar, and the
Court finds that the classified information at issue in this case falls within the scope of either
Order.
10
records, this would give rise to the inference that Person T is a
target of NSA’s surveillance efforts. These inferences would
disclose the targets and capabilities (i.e. NSA’s sources and
methods) of NSA’s SIGINT activities and functions and inform
our adversaries of the degree to which NSA is aware of some of
their operatives or is able to successfully exploit particular
communications.
Id. For these reasons, NSA invokes Exemption 1 and offers only a Glomar response because
“the fact of the existence or nonexistence of the intelligence information requested by Plaintiff is
a currently and properly classified matter in accordance with Executive Order 13[,]526, as
amended.” Id.E. Exemption 3
Exemption 3 protects records that are “specifically exempted from disclosure by statute .
. . provided that such statute (A) [requires withholding] in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular
types of matters to be withheld.” 5 U.S.C. § 552(b)(3). It “differs from other FOIA exemptions
in that its applicability depends less on the detailed factual contents of specific documents; the
sole issue for decision is the existence of a relevant statute and the inclusion of withheld material
within that statute’s coverage.” Goland, 607 F.2d at 350; Ass’n of Retired R.R. Workers v. U.S.
R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). In other words, NSA “need only show that
the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld
material falls within the statute.” Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir. 2009)
(citing Fitzgibbon v. CIA, 911 F.2d 755, 761-62 (D.C. Cir. 1990)).
NSA’s declarant explains that “any confirmation or denial that Plaintiff has been or is a
target is precluded by three statutes.” Janosek Decl. ¶ 11. First, NSA relies on Section 6 of the
National Security Agency Act of 1959, which in relevant part provides:
11
[N]othing in [the National Security Agency Act of 1959] or any
other law . . . shall be construed to require the disclosure of the
organization or any function of the [NSA], or any information with
respect to the activities thereof, or the names, titles, salaries, or
number of persons employed by such agency.
50 U.S.C. § 402 (note). 7 Second, NSA relies on 18 U.S.C. § 798, under which a person who
knowingly and willfully discloses to an unauthorized person “any classified information . . .
concerning the communication intelligence activities of the United States . . . or . . . obtained by
the processes of communication intelligence from the communications of any foreign
government, knowing the same have been obtained by such processes,” commits a criminal
offense punishable by a fine or a maximum prison term of ten years or both. 18 U.S.C. §
798(a)(3), (4). Third, NSA relies on Section 102(A)(i)(1) of the Intelligence Reform and
Terrorism Prevention Act of 2004, which provides that “[t]he Director of National Intelligence
shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403-
1(i)(1) (emphasis added). 8 It is settled that these statutes are among those contemplated by
Exemption 3. See Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C.
Cir. 2011) (recognizing prior holding that “the National Security Act, which also authorizes the
Executive to withhold ‘intelligence sources and methods’ from public disclosure, 50 U.S.C. §
403–1(i)(1), qualifies as an exemption statute under [E]xemption 3”); Larson, 565 F.3d at 868(recognizing that 18 U.S.C. § 798 qualifies as an Exemption 3 statute).
The declarant asserts that the “release of any confirmation or denial that Plaintiff has
been or is a target is precluded by . . . statute[].” Janosek Decl. ¶ 11. For this reason, NSA takes
the position that “the existence or nonexistence of [the information Plaintiff requests] is exempt
7
This section of the National Security Agency Act of 1959, which formerly appeared as a
note to 50 U.S.C. § 402, may now be found at 50 U.S.C. § 3605(a).
8
This section of the Intelligence Reform and Terrorism Prevention Act of 2004, which
formerly appeared at 50 U.S.C. § 403-1, may now be found at 50 U.S.C. § 3024(i)(1).
12
from disclosure pursuant to Exemption[] . . . 3 of the FOIA.” Id. The three statutes on which
NSA relies, the declarant states, are designed “to protect the fragile nature of NSA’s SIGINT
efforts to include, but not limited to, the existence and depth of signals intelligence-related
successes, weaknesses, and exploitation techniques.” Id. ¶ 20. “These statutes recognize the
vulnerability of signals intelligence to countermeasures and the significance of the loss of
valuable intelligence information to national policy makers and the Intelligence Community.”
Id. Where “Congress specifically prohibited the disclosure of information related to NSA’s
functions and activities and its communications intelligence activities, as well as the sources and
methods used by the Intelligence Community as a whole,” the declarant concludes that “NSA’s
SIGINT activities and functions, and its intelligence sources and methods[,] would be revealed if
any of the withheld information about NSA’s collection were disclosed,” if any such information
exists. Id. “[A]cknowledgement of the existence or nonexistence of intelligence information
relating to Plaintiff is prohibited by statute” and thus, concludes the declarant, is “exempt from
disclosure” under FOIA. Id. ¶ 21.
F. Plaintiff’s Objections
Plaintiff raises a handful of objections, none of which establishes the existence of a
genuine issue of material fact in dispute with respect to NSA’s compliance with the FOIA.
First, Plaintiff attacks the sufficiency of NSA’s supporting declaration. With respect to
NSA’s reliance on Exemption 1, Plaintiff “denies that the withheld information substantively
falls within the scope of Executive Order 13526.” Pl.’s Opp’n at 7. According to Plaintiff,
“NSA’s response presupposes that every person on whom foreign intelligence is shared is [a]
surveillance target,” id., even though “not all foreign intelligence received by NSA may have the
13
credibility to even come close to be considered surveillance information.” id. at 8. He further
disputes NSA’s assertion that revelation of the Agency’s “capability to collect specific
communications . . . can so easily alert a surveillance target to the vulnerability of [his]
communications.” Id. Plaintiff deems this notion an “exceptional stretch of one’s imagination”
and dismisses the argument as having “no real merit.” Id. With respect to Exemption 3, while
Plaintiff does not dispute the content or purpose of the three statutes on which NSA relies, he
argues that the statutes are not designed “to unjustifiably excuse the [Agency] from providing a
proper response under FOIA.” Id. at 9. He sees no reason why NSA cannot protect its “raw
data,” id., while disclosing to him a “final outcome” which withholds any sensitive information
that is not personal to him, id. For example, Plaintiff posits that “a set of operations is performed
on signals intelligence so as to provide a refined, reproducible product to work with” and that he
is entitled to the finished product “after all irrelevant information such as methods and
techniques relating to national defence [sic] ha[ve] been stripped away,” id. at 8., without posing
a risk to national security, see id. at 9.
The Agency’s declaration is “presumed to be in good faith,” and a requester “can rebut
this presumption with evidence of bad faith.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.,
384 F. Supp. 2d 100, 107 (D.D.C. 2005) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir.1991)). Plaintiff offers nothing more than opinion and speculation as to the
deficiencies in the declaration, and therefore does not undermine the deference normally
afforded to an agency, and particularly in the realm of national security matters. See Friedman
v. U.S. Secret Service, No. 06-2125, 2013 WL 588288, at *14 (D.D.C. Feb. 14, 2013) (finding
that, for Exemption 1, Plaintiff’s “speculation as to the declarants’ bad faith does not overcome
the deference generally accorded to agency declarations.”).
14
Nor does Plaintiff demonstrate any other basis to conclude that NSA’s Glomar response,
which is “an exception to the general rule that agencies must acknowledge the existence of
information responsive to a FOIA request and provide specific, non-conclusory justifications for
withholding that information,” Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C. Cir.
2011), is not proper in this case. If there were any personal information about Plaintiff in NSA’s
records, its very existence—without more—reveals classified intelligence information. Here,
NSA refuses to confirm or deny the existence or nonexistence of the information Plaintiff
requests because Exemptions 1 and 3 “would . . . preclude the acknowledgement of such
documents.” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012); see Wilner v.
NSA, 592 F.3d 60, 70 (2d Cir. 2009) (stating that a Glomar response is “applicable in cases
where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception—in
other words, in cases in which the existence or nonexistence of a record is a fact exempt from
disclosure under a FOIA exception”) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir.
1982) (internal quotation marks omitted)), cert. denied, 131 S. Ct. 387 (2010). “When the
Agency’s position is that it can neither confirm nor deny the existence of the requested records,
there are no relevant documents for the court to examine other than the affidavits which explain
the Agency’s refusal.” Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976).
NSA establishes that any further response to Plaintiff’s FOIA request would result in
disclosure of intelligence information which, in light of the NSA’s intelligence responsibilities,
amounts to the disclosure of the sources of and methods by which its intelligence is collected.
See Bassiouni v. CIA, 392 F.3d 244, 245 (7th Cir. 2004) (affirming a Glomar response to a first-
person request for CIA records on the ground that “providing a list of the documents that
mention [the requester], and claiming document-by-document exemptions for those whose
15
contents are classified, would reveal details about intelligence-gathering methods,” even if
“disclosure could be innocuous”); People for the Am. Way Found. v. NSA/Cent. Sec. Serv., 462
F. Supp. 2d 21, 31 (D.D.C. 2006) (concluding that the NSA’s Glomar response to a request for
records related to surveillance of Plaintiff was appropriate because confirmation that a person’s
activities are not of foreign intelligence interest or that the NSA was unable to collect foreign
intelligence information on his activities “would allow our adversaries to accumulate information
and draw conclusions about NSA’s technical capabilities, sources, and methods”); see also Wolf
v. CIA, 473 F.3d 370, 376 (concluding that revealing the existence of CIA records “regarding
specific foreign nationals could potentially reveal targets of CIA surveillance and, thus, CIA
methods” by “signal[ing] to a foreign intelligence service the specific persons and areas in which
the CIA is interested and upon which it focuses its methods and resources”). Further, the
Agency establishes that any such information is classified in accordance with Executive Order
13,526, and is otherwise protected from release by the relevant provisions of the National
Security Act of 1959, 18 U.S.C. § 798, and the Intelligence Reform and Terrorism Prevention
Act of 2004.
III. CONCLUSION
The Court concludes that there are no genuine issues of material fact in dispute as to the
NSA’s compliance with the FOIA, and that the NSA is entitled to judgment as a matter of law.
Accordingly, Defendant’s motion for summary judgment will be granted. An Order
accompanies this Memorandum Opinion.
DATE: August 26, 2013 COLLEEN KOLLAR-KOTELLY
United States District Judge
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