Shapiro v. Central Intelligence Agency ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RYAN NOAH SHAPIRO,
Plaintiff,
v. Case No. 14-cv-00019 (CRC)
CENTRAL INTELLIGENCE AGENCY, et
al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Ryan Shapiro brought this action against four federal agencies pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. He alleges that each defendant has
violated FOIA by inadequately processing his request for all documents in their possession that
mention the famed South African activist and political leader Nelson Mandela. The Federal
Bureau of Investigation (“FBI”) and the Defense Intelligence Agency (“DIA”) are in the process
of reviewing and producing documents in response to Shapiro’s request. The Central
Intelligence Agency (“CIA”), however, has moved to dismiss Shapiro’s complaint, arguing that
he has not exhausted his administrative remedies because his FOIA request does not “reasonably
describe” the records he seeks. And the National Security Agency (“NSA”) has moved for
summary judgment, maintaining that its refusal even to confirm or deny the existence of what
Shapiro has requested is warranted under two statutory disclosure exemptions. In his own cross-
motion for summary judgment, Shapiro claims that the information the NSA wishes to keep
secret has already been officially acknowledged; he also contends that the agency’s blanket
nonresponse is premised on an unduly narrow interpretation of his FOIA request.
For the reasons explained below, the Court will deny the CIA’s motion to dismiss, grant
in part the NSA’s motion for summary judgment, and deny Shapiro’s cross-motion for summary
judgment.
I. Background
Ryan Shapiro is a doctoral candidate at the Massachusetts Institute of Technology and a
“historian of the political functioning of national security and the policing of dissent.” Pl.’s First
Am. Compl. (“Compl.”) ¶ 2. On December 11, 2013, Shapiro submitted FOIA requests to the
CIA, NSA, DIA, and FBI, “requesting copies of records mentioning or referring to” Nelson
Mandela, the famed anti-apartheid activist and former President of South Africa. Id. ¶ 21. His
requests to the CIA and the NSA were worded identically: “I request disclosure of any and all
records that were prepared, received, transmitted, collected and/or maintained by the [agencies]
mentioning the deceased individual Rolihlahla Mandela (aka Nelson Mandela, aka Madiba, aka
Tata).” Compl. Ex. 3, at 1; id. Ex. 4, at 1. Both agencies refused to comply with Shapiro’s
request, and the present motions stem from the parties’ disagreement about the adequacy of these
responses.
Shapiro requested that the CIA search “all electronic and paper/manual indices, filing
systems, and locations,” including “all of its directorates” and at least thirty enumerated “filing
systems, indices, and locations.” Id. Ex. 3, at 4–5. This request—for which Shapiro sought
expedited treatment—also encompassed emails and publicly available records. Id. at 2, 6. In a
letter dated March 10, 2014, transmitted after Shapiro filed his initial Complaint, the CIA
notified him that it could not process his FOIA request in its current form because to do so
“would require the Agency to perform an unreasonably burdensome search.” Def. CIA’s Mot.
Dismiss Ex. B, at 1. The CIA further explained that “FOIA requires requesters to ‘reasonably
2
describe’ the information they seek so that professional employees familiar with the subject
matter can locate responsive information with a reasonable amount of effort.” Id. The agency
closed its letter by inviting Shapiro to narrow the scope of his “[e]xtremely broad” and “vague”
request. Id.
Instead, he amended his Complaint, claiming that the CIA had violated FOIA by
“improperly withholding records, failing to conduct an adequate search, and . . . refusing to
process the request at all.” Compl. ¶ 59. The CIA has moved to dismiss Shapiro’s First
Amended Complaint, arguing that he failed to exhaust his administrative remedies because his
FOIA request did not “reasonably describe[]” the records sought, as the statute requires.
5 U.S.C. § 552(a)(3)(A).
The NSA responded to Shapiro’s FOIA request in a letter dated December 31, 2013. It
informed him that “[t]o the extent that you are seeking informational documents regarding
Nelson Mandela,” the agency had previously released one Cryptolog document1 from 1996 that
could be found at a particular web address. Def. NSA’s Mot. Summ. J. Ex. B, at 1. Yet “[t]o the
extent that you are seeking intelligence information on Nelson Mandela,” the NSA invoked a so-
called Glomar response, meaning that it refused even to confirm or deny the “existence or non-
existence” of such records. Id. (emphasis added). According to the NSA, this fact falls within
FOIA Exemptions One and Three, because it has been properly classified pursuant to an
executive order and is protected from disclosure by three federal statutes. Shapiro
administratively appealed the NSA’s denial of his request, but filed his Complaint before the
1
Cryptolog, one of the NSA’s “longest-lived technical publications,” was “designed for the
interchange of ideas on technical subjects in what was originally referred to as the Operations
side of NSA.” The National Security Agency’s Release of All Issues of Its Technical Periodical,
“Cryptolog”, National Security Agency, https://www.nsa.gov/public_info/_files/cryptologs/faqs_
for_cryptolog_release.pdf (last visited Mar. 15, 2016).
3
agency could resolve his appeal. He alleges that the NSA has “violated FOIA by improperly
withholding records.” Compl. ¶ 59. The NSA has moved for summary judgment, expanding on
its contention that FOIA Exemptions One and Three justify the agency’s Glomar response.
Shapiro has cross-moved for summary judgment, contending that the NSA’s Glomar response
was both incomplete and improper, because the NSA interpreted his request too narrowly and
has already officially acknowledged its interest in gathering overseas intelligence on Nelson
Mandela.
II. Legal Standards
Congress created FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir.
2011) (quoting U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). Despite this
broad mandate, FOIA contains a set of exceptions to the general obligation to provide
government records to the public. 5 U.S.C. § 552(b). These exemptions are in place “to balance
the public’s interest in governmental transparency against the ‘legitimate governmental and
private interests [that] could be harmed by release of certain types of information.’” United
Techs. Corp. v. U.S. Dep’t of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical
Mass Energy Project v. Nuclear Reg. Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)).
FOIA “mandates a strong presumption in favor of disclosure,” and its “statutory exemptions,
which are exclusive, are to be ‘narrowly construed.’” Nat’l Ass’n of Home Builders v. Norton,
309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Rose, 425 U.S. at 361).
“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). In deciding
a motion for summary judgment, the Court assumes the truth of the non-movant’s evidence and
4
draws all reasonable inferences in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Summary judgment is proper if the moving party establishes 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). The government bears the burden to establish that the claimed
FOIA exemptions apply to each document for which they are invoked. ACLU v. U.S. Dep’t of
Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (“ACLU I”). The government may satisfy this
burden through declarations that describe the justifications for its withholdings in “specific
detail, demonstrat[ing] that the information withheld logically falls within the claimed
exemption[.]” Id. The agency’s affidavits will not warrant summary judgment if the plaintiff
puts forth contrary evidence or demonstrates the agency’s bad faith. Id.
When evaluating a motion to dismiss for failure to state a claim, the Court must accept as
true all factual allegations in the complaint and draw all reasonable inferences in favor of the
plaintiff. Fed. R. Civ. P. 12(b)(6); Elec. Privacy Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 90
(D.D.C. 2011). To survive a Rule 12(b)(6) motion, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is facially plausible when a complaint’s factual allegations warrant a
reasonable inference that the defendant is liable for the alleged misconduct. Id.
III. Analysis
A. The CIA’s Motion to Dismiss
In its initial letter refusing to process Shapiro’s FOIA request, the CIA explained that a
search for all documents mentioning Nelson Mandela would be “unreasonably burdensome” and
that Shapiro had not exhausted his administrative remedies because his request did not
“reasonably describe” the records sought. CIA’s Mot. Dismiss Ex. B, at 1. The agency has now
5
retreated from the first argument—and disclaimed any effort to estimate how time-consuming
the search would be—because its “position is not based on the anticipated result of searches or
the volume of potentially responsive records.” CIA’s Mot. Dismiss 4. Rather, the CIA argues
that Shapiro’s “request, on its face, is deficient.” Id.
The Court disagrees, finding that Shapiro’s request “reasonably describes” the records he
seeks. 5 U.S.C. § 552(a)(3)(A). “The linchpin inquiry” on this score is “whether ‘the agency is
able to determine precisely what records are being requested.’” Tereshchuk v. Bureau of
Prisons, 67 F. Supp. 3d 441, 454 (D.D.C. 2014) (quoting Yeager v. DEA, 678 F.2d 315, 326
(D.C. Cir. 1982)). Regardless of how onerous it might be to locate them, there can be no dispute
about which items are being requested—records in the CIA’s possession that “mention[]” Nelson
Mandela or his three listed aliases. True, one Court has suggested that agencies need not
“release an entire document simply because the name of a person or organization which is the
subject of the request is mentioned in the document.” Dunaway v. Webster, 519 F. Supp. 1059,
1083 (N.D. Cal. 1981). Yet that same opinion explained that an “agency may withhold material
found in documents which are in any way responsive to the request only if that material is clearly
and without doubt unrelated to the subject of the request.” Id. Here, the subject of Shapiro’s
request is the entirety of each document that mentions Mandela, even if such references are
fleeting and tangential. So compliance should involve virtually no guesswork: A record is
responsive if and only if it contains Mandela’s name (or those of his three listed aliases) or any
descriptor obviously referring to him.2
2
For example, if a document from 1998 referred simply to “the current President of South
Africa,” that record would “mention[]” Mandela, even if it did not use his name, because its
allusion to him would be immediately apparent and unmistakable.
6
The CIA cites a number of FOIA requests that were held not to reasonably describe the
records sought. But in most of those cases, the reviewing agency’s task was anything but
ministerial. In Sack v. CIA, 53 F. Supp. 3d 154 (D.D.C. 2014), for example, the plaintiff sought
all “documents pertaining in whole or in part . . . to a list of closed Inspector General
investigations and reports,” id. at 163. Because “a record may pertain to something without
specifically mentioning it,” the request’s “lack of clarity le[ft] the agency to guess at the
plaintiff’s intent.” Id. at 164. The CIA’s filing system could not cure the overly subjective
nature of the request, an agency affidavit explained, because “the CIA’s record-keeping systems
do not permit it to identify records that do not necessarily reference a document, but which may
bear some relation to it.” Id. at 165. FOIA requests seeking documents that “relate to” certain
subjects have faltered for the same reason. See Freedom Watch, Inc. v. U.S. Dep’t of State, 925
F. Supp. 2d 55, 61 (D.D.C. 2013) (finding such a request “overbroad since life, like law, is ‘a
seamless web,’ and all documents ‘relate’ to all others in some remote fashion” (quoting Mass.
Dep’t of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989)). Other examples
abound.3 So when a defendant alleges that a FOIA request does not reasonably describe the
records sought, there is a difference in kind between requests for documents that “mention” or
“reference” a specified person or topic and those seeking records “pertaining to,” “relating to,” or
“concerning” the same. FOIA’s reasonable-description requirement does not doom requests that
3
See, e.g., Freedom Watch v. CIA, 895 F. Supp. 2d 221, 223, 229 (D.D.C. 2012) (a request for
records “that refer or relate to the following [topics] in any way” was “vague” and
“extraordinarily broad”); Latham v. U.S. Dep’t of Justice, 658 F. Supp. 155, 161 (D.D.C. 2009)
(a request for records “that pertain in any form or sort to [the plaintiff]” was “overly broad”);
Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (a request for documents “that refer or relate
in any way to [the plaintiff]” did not reasonably describe the records sought); Hunt v.
Commodity Futures Trading Comm’n, 484 F. Supp. 47, 51 (D.D.C. 1979) (plaintiffs who
requested records “concern[ing]” them ought to have “specif[ied] more carefully the information
they were seeking”); Fonda v. CIA, 434 F. Supp. 498, 501 (D.D.C. 1977) (“Plaintiff offers no
criterion by which defendants can determine which documents ‘concern her.’”).
7
precisely describe the records sought, even if compliance might overwhelm an agency’s response
team.
The CIA insists that Shapiro’s request does not reasonably describe the relevant records
because it would not “enable[] a professional employee of the agency who was familiar with the
subject area of the request to locate the record with a reasonable amount of effort.” Dale v. IRS,
238 F. Supp. 2d 99, 104 (D.D.C. 2002) (quoting Marks v. United States, 578 F.2d 261, 263 (9th
Cir. 1978)). Stated in full, the objection seems to be that (1) the CIA likely possesses a
tremendous number of documents mentioning Mandela; (2) locating them all would require the
CIA to expend an unreasonable amount of effort; and (3) excessively burdensome requests, such
as this one, necessarily fail to reasonably describe the records requested. As the CIA puts it,
since “a mere mention [of Mandela] could appear incidentally in innumerable records,” CIA’s
Reply Supp. Mot. Dismiss 3, “searches for responsive records would be extensive,” CIA’s Mot.
Dismiss 7.
But as the D.C. Circuit has noted, “the number of records requested appears to be
irrelevant to the determination of whether they have been ‘reasonably described.’” Yeager, 678
F.2d at 326; see also id. (finding that a request to search over a million records “reasonably
described” the records sought, since the agency “knew ‘precisely’ which of its records had been
requested and the nature of the information sought from those records”). And this Court recently
expressed “skeptic[ism] that a FOIA request may be denied based on [the] sheer volume of
records requested.” Tereshchuk, 67 F. Supp. 3d at 454–55. The statute itself “puts no
restrictions on the quantity of records that may be sought.” Id. at 455. Rather, it explicitly
contemplates unusually large requests, affording reviewing agencies additional time “to search
8
for . . . a voluminous amount of separate and distinct records which are demanded in a single
request.” 5 U.S.C. § 552(a)(6)(B)(iii)(II).
Whether Shapiro’s request would require the CIA to expend an unreasonable amount of
effort cannot be determined from his request alone, “on its face.” CIA’s Reply Supp. Mot.
Dismiss 4. Although an agency need not comply with unreasonably burdensome FOIA requests,
it “bears the burden to ‘provide [a] sufficient explanation as to why such a search would be
unreasonably burdensome.’” Ayuda, Inc. v. FTC, 70 F. Supp. 3d 247, 275 (D.D.C. 2014). The
required showing is “substantial,” Tereshchuk, 67 F. Supp. 3d at 455—an agency must articulate
its reasons for nondisclosure “with reasonably specific detail.” People for the Am. Way v. U.S.
Dep’t of Justice, 451 F. Supp. 2d 6, 13 (D.D.C. 2006). Courts typically demand “a detailed
explanation by the agency regarding the time and expense of a proposed search in order to assess
its reasonableness.” Wolf v. CIA, 569 F. Supp. 2d 1, 9 (D.D.C. 2008). In People for the
American Way, for example, the defendant filed an affidavit explaining that compliance would
require the agency to devote 25,000 hours to manually searching all 44,000 files encompassed in
the request. The Court held that the agency had “met its burden” of explaining why a search
would be unreasonably burdensome. 451 F. Supp. 2d at 61; see also Wolf, 569 F. Supp. 2d at 9
(holding that the CIA had “met its burden” by submitting a declaration “averr[ing] that a
researcher would be forced to review the reels on a frame-by-frame basis, which would take
approximately 3675 hours and cost about $147,000”); Int’l Counsel Bureau v. U.S. Dep’t of
Defense, 723 F. Supp. 2d 54, 59 (D.D.C. 2010) (agreeing with the agency that “enlisting a full-
time staff of twelve for a year to review hundreds of thousands of unsorted images would impose
. . . an undue burden”).
9
The CIA has done nothing of the sort here. In fact, it has overtly declined to file such a
declaration, simply asserting in its legal briefing that the documents Shapiro requests could not
be “locate[d] . . . with a reasonable amount of effort.” CIA’s Reply Supp. Mot. Dismiss 2, 4.
Because the scope of Shapiro’s request is clear, this is plainly an argument that a satisfactory
response would be too burdensome. But as the case law teaches, “[t]his Court will not find a
search unduly burdensome on conclusory statements alone.” Hall v. CIA, 881 F. Supp. 2d 38, 53
(D.D.C. 2012).
The CIA worries that “[a]gency employees could not with certainty determine that an
office, database, or archival file series does not contain a record that ‘mentions’ Mandela.”
CIA’s Reply Supp. Mot. Dismiss 5. FOIA does not require perfection, however. “There is no
requirement that an agency search every record system” in the face of likely futility. Oglesby v.
U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The CIA need only search “all files
likely to contain responsive materials,” id., not “virtually every file contained in [every] branch
and division office[],” AFGE, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 206 (D.C.
Cir. 1990). Because Shapiro’s FOIA request to the CIA conveys exactly which records he seeks,
and because the agency has not satisfactorily explained why processing the request would be
unduly burdensome, the Court will deny the CIA’s motion to dismiss.
B. The NSA’s Motion for Summary Judgment and Shapiro’s Cross-Motion
i. The Scope of Shapiro’s FOIA Request
Before addressing the sufficiency of the NSA’s Glomar response, the Court will resolve a
preliminary disagreement as to what records were encompassed within Shapiro’s request. The
NSA takes the position that Shapiro’s request sought only “intelligence records on Mr. Mandela
or records that would otherwise be used for an intelligence purpose.” NSA’s Combined Reply
10
Supp. Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J. (“NSA’s Reply”) 9 (emphases added).
Accordingly, the agency justified its Glomar response only with respect to such records. The
NSA further accuses Shapiro of using his cross-motion for summary judgment to “seek[] a new
category of records”—“non-intelligence records that were not encompassed within Plaintiff’s
original request.” Id. at 6. Shapiro resists this interpretation, claiming that his original FOIA
request “states that he is broadly seeking any records ‘mentioning’ Nelson Mandela.” Pl.’s
Combined Opp’n NSA’s Mot. Summ. J. and Cross-Mot. Summ. J. (“Pl.’s Opp’n”) 2.
Shapiro has the better view. The operative text of his request to the NSA, as
distinguished from any illustrative commentary included in the request, was identical to that
submitted to the CIA: “I request disclosure of any and all records that were prepared, received,
transmitted, collected and/or maintained by the [agencies] mentioning the deceased individual
Rolihlahla Mandela (aka Nelson Mandela, aka Madiba, aka Tata).” Compl. Ex. 3, at 1; Ex. 4, at
1. As discussed above, this is plainly a request for “any and all” records in the NSA’s possession
that “mention[]” Nelson Mandela or his three listed aliases. The Court will assess the adequacy
of the NSA’s Glomar response accordingly.
ii. The Sufficiency of the NSA’s Glomar Response
Recipients of FOIA requests “may refuse to confirm or deny the existence of records
where to answer the FOIA inquiry would cause harm cognizable under a[] FOIA exception.”
Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103
(D.C. Cir. 1982)). The NSA maintains that the mere existence or nonexistence of records
responsive to Shapiro’s FOIA request is itself shielded from disclosure under Exemptions One
and Three.
11
Exemption One protects records that are “(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). The NSA points to “Classified National Security Information,” Exec. Order No.
13526, 75 Fed. Reg. 707 (Dec. 29, 2009), as authorizing its Glomar response here.
Exemption Three specifies that generally applicable FOIA obligations do not apply to
information that is “specifically exempted from disclosure by [federal] statute,” if that statute
either “requires that the matters be withheld from the public in such 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). The NSA rounds out its belt-and-
suspenders approach by citing three alleged statutory privileges. First, the National Security
Agency Act of 1959 (as amended) provides 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).
Second, another federal statute criminalizes the unauthorized disclosure of any classified
information “concerning the communication intelligence activities of the United States or any
foreign government” or “obtained by the processes of communication intelligence from the
communications of any foreign government, knowing the same to have been obtained by such
processes.” 18 U.S.C. § 798(a)(3)–(4). And third, the Director of National Intelligence is
statutorily authorized to “protect intelligence sources and methods from unauthorized
disclosure.” 50 U.S.C. § 3024(i)(1).
The NSA appended to its motion a declaration from David J. Sherman, the agency’s
Associate Director for Policy and Records. See Decl. of David J. Sherman, NSA’s Mot. Summ.
12
J. Ex. 1 (“Sherman Decl.”). Sherman sought to illustrate the national-security stakes of even
confirming or denying that the NSA possesses intelligence-related records mentioning Mandela.
According to Sherman, the NSA gathers, scrutinizes, generates, and deploys “signals intelligence
(‘SIGINT’) information . . . for (a) national foreign intelligence purposes, (b) counterintelligence
purposes, and (c) the support of military operations.” Id. at 2. Sherman avers that “the identity
of specific communications” and human “targets,” and the agency’s ability or inability to exploit
them, “must be maintained in strictest secrecy.” Id. at 4. After all, “[c]onfirmation by NSA that
a person’s activities are not of foreign intelligence interest” or that the NSA has been either
successful or unsuccessful in monitoring their activities “would allow our adversaries to
accumulate information and draw conclusions about NSA’s technical capabilities, sources, and
methods.” Id. at 8. In the aggregate, full responses in these situations would “provid[e] our
adversaries a road map that instructs them which communication modes or personnel remain safe
or are successfully defeating NSA’s capabilities.” Id. at 8–9.
“[W]hen a Glomar response touches upon issues of national security”—as is the case
here—“courts must give agency decisions substantial deference,” Competitive Enter. Inst. v.
NSA, 78 F. Supp. 3d 45, 53 (D.D.C. 2015), for judges “lack the expertise necessary to second-
guess such agency opinions in the typical national-security FOIA case,” ACLU I, 628 F.3d at
619 (quoting Krikorian v. U.S. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993)). As long as
the record reveals no bad faith on the agency’s part and contains no contradictory evidence,
“summary judgment is warranted on the basis of the affidavit alone” when the agency affidavit
“describes the justifications for withholding the information with specific detail” and
“demonstrates that the information withheld logically falls within the claimed exemption.” Id.
Courts must sustain an agency’s Glomar response predicated on a FOIA exemption when the
13
justification for nondisclosure “appears ‘logical’ or ‘plausible.’” ACLU v. CIA, 710 F.3d 422,
427 (D.C. Cir. 2013) (“ACLU II”) (quoting Wolf, 473 F.3d at 374–75).
For part of Shapiro’s FOIA request, that test is easily satisfied. The Court must accord
substantial weight to the Sherman Declaration, which provides “specific detail” for why the
information withheld—whether the NSA possesses intelligence-related records mentioning
Mandela—“logically falls within the claimed exemption.” ACLU I, 628 F.3d at 619. The
NSA’s reply brief clarifies that its Glomar response encompasses all records that “reveal whether
or not Nelson Mandela was a SIGINT target and/or of SIGINT interest to the NSA.” NSA’s
Reply 10. The NSA has interpreted Shapiro’s FOIA request as seeking precisely these sorts of
records—no more, no less. Importantly, as to records revealing whether Mandela was a SIGINT
target or of SIGINT interest to the NSA, Shapiro makes no effort to refute the applicability of
either of the agency’s asserted FOIA exemptions. Nor has he contradicted any of the Sherman
Declaration’s averments or alleged bad faith on the part of the NSA. The Court thus concludes,
based on information provided in the Sherman Declaration, that confirming or denying whether
Mandela was a SIGINT target or of SIGINT interest to the NSA would disclose “information
with respect to the activities” of the NSA, in violation of 50 U.S.C. § 3605(a).4 So with respect
to records revealing whether Mandela was a SIGINT target or otherwise of SIGINT interest to
the NSA, the agency’s Glomar response suffices.
But Shapiro’s request was not so cabined. He explicitly sought “any and all records . . .
mentioning” Mandela. Compl. Ex. 4, at 1. Likely anticipating the Court’s interpretation today,
the NSA expressed its “willing[ness] . . . to address” a hypothetical FOIA request “seeking non-
intelligence records” that mention Mandela, even “without the need for Plaintiff to file a new
4
It is therefore unnecessary to address the NSA’s three other suggested bases for the
applicability of Exemptions One and Three.
14
FOIA request.” NSA’s Reply 9 n.6. Because the agency misinterpreted Shapiro’s original
request, the Court finds that the NSA is statutorily obligated to address his outstanding request
for all records in the NSA’s possession that do not reveal whether Nelson Mandela was a
SIGINT target or of SIGINT interest to the NSA.
iii. Whether the NSA Has Already Acknowledged the Information
Subject to Its Glomar Response
Finally, Shapiro argues that the NSA’s Glomar response—as far as it went—was
improper because the agency has already “officially acknowledged the existence of responsive
records”: ones “demonstrat[ing] . . . the NSA’s foreign intelligence interest in Mr. Mandela.”
Pl.’s Opp’n 10–11. Upon review of these documents, the Court disagrees. It will therefore grant
in part the NSA’s motion for summary judgment and deny Shapiro’s cross-motion.
Shapiro is correct that an agency may not invoke a FOIA exemption when it has already
“ma[de] an ‘official and documented’ disclosure of the information being sought.” Frugone v.
CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.
Cir. 1990)). Critically, “[p]rior disclosure of similar information does not suffice; instead, the
specific information sought by the plaintiff must already be in the public domain by official
disclosure.” Wolf, 473 F.3d at 378; see also Pub. Citizen v. U.S. Dep’t of State, 11 F.3d 198,
201 (D.C. Cir. 1993) (explaining that the information already officially acknowledged must
“duplicate[] that being withheld”). To overcome the NSA’s Glomar response, then, Shapiro
must demonstrate that “the agency5 has already disclosed the fact of the existence (or
nonexistence) of responsive records”—here, whether Nelson Mandela was a SIGINT target or of
SIGINT interest to the NSA. ACLU II, 710 F.3d at 427. This is a “high hurdle . . . to clear,” but
5
The “official acknowledgment” principle also applies where past disclosures have been “made
by an authorized representative of the agency’s parent” entity, but not by “another, unrelated
agency.” ACLU II, 710 F.3d at 429 n.7.
15
the agency’s “vital interest in [protecting] information relating to national security and foreign
affairs dictates that it must be.” Pub. Citizen, 11 F.3d at 203.
Shapiro cites (and attaches) six sets of previously released documents that, “[t]aken
collectively,” he says, “demonstrate that acknowledging the NSA’s foreign intelligence interest
in Mr. Mandela would not reveal anything that has not already been revealed,” Pl.’s Reply 10:
(1) documents released by the Department of Defense as part of this FOIA suit, including
“memoranda sent to the director of the [NSA] describing in some detail Mr.
Mandela’s activities,” Pl.’s Reply 7; id. Ex. 1;
(2) the Intellipedia entry for Mandela, released by the Office of Naval Intelligence in
response to another of Shapiro’s FOIA requests, Pl.’s Reply 8; id. Ex. 2;
(3) “a document posted on the NSA’s own website contain[ing] a brief synopsis of a
meeting between Mr. Mandela and then-South African President de Klerk,” Pl.’s
Reply 8;
(4) “numerous ‘National Intelligence Daily’ documents discussing Mandela,” which
“bear[] the seal of the National Security Agency,” Id.; id. Exs. 3–9;
(5) “a Special National Intelligence Estimate . . . prepared by the CIA with contributions
from the NSA,” which “reveals extensive interest in Mandela by the United States
intelligence community,” Pl.’s Reply 9; id. Ex. 10; and
(6) an official “history of the Joint Chiefs of Staff . . . demonstrat[ing] United States
intelligence agencies’ surveillance of the South African government,” Pl.’s Reply 10;
id. Ex. 11.
These documents may well demonstrate that the NSA was, at some level, “interested”
in Nelson Mandela’s activities as a prominent dissident and high-ranking political leader.
But they do not divulge whether the NSA “has or has not targeted Nelson Mandela or
considered him to be of SIGINT interest.” NSA’s Reply 11. Shapiro “bears the burden” of
“establish[ing],” Pub. Citizen, 11 F.3d at 201, that these documents’ references to Mandela
necessarily mean that the NSA, at some point, “exploit[ed] foreign electromagnetic signals”
in an effort to intercept communications sent to or from, or regarding, Nelson Mandela,
16
Sherman Decl. 2. Although the Court will not undertake here to analyze each of the scores
of Mandela references in Shapiro’s exhibits, its own review of these documents failed to
uncover a single mention of Mandela that seemingly could not have been generated without
the NSA’s SIGINT program.6
In sum, based on the previously disclosed documents Shapiro has adduced, the Court
declines to hold that the precise fact of whether Nelson Mandela was a SIGINT target or
otherwise of SIGINT interest has been officially acknowledged. Neither the NSA nor a
parent entity has “made admissions that would waive [the agency’s] right to assert a Glomar
response here.” Competitive Enter. Inst., 78 F. Supp. 3d at 57.
6
Most references to Mandela were fairly prosaic and reportorial. See, e.g., Pl.’s Opp’n Ex. 1, at
12 (“South African President Mandela recently toured the Persian Gulf states in which South
Africa has recently opened diplomatic missions.”); id. Ex. 6, at 2 (“A poll of white South
Africans last month indicates that whites’ esteem for Mandela has decreased since his release
from prison.”); id. Ex. 8, at 3 (“Mandela heads for Europe tomorrow to visit France, the UK,
West Germany, Italy, Belgium, Ireland, and Switzerland.”). Those containing some element of
assessment or prediction were not self-evidently facilitated by the NSA’s SIGINT program. See,
e.g., id. Ex. 10, at 12 (“[G]iven the immense domestic and international popularity of Mandela,
he poses a real threat to the government and it is unlikely, in our judgment, that he will be
released over the next two years.”).
17
IV. Conclusion
For the foregoing reasons, the Court will deny the CIA’s motion to dismiss, grant in part
the NSA’s motion for summary judgment, and deny Shapiro’s cross-motion for summary
judgment.7 A separate Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: March 17, 2016
7
Because neither the CIA nor the NSA has begun processing Shapiro’s request, the Court need
not address his other allegations—that those agencies violated FOIA by failing to grant his
requests for expedited processing and a fee waiver. Compl. ¶¶ 54, 57.
18