Blake v. National Security Agency ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD R. BLAKE, JR., et al., :
:
Plaintiffs, : Civil Action No.: 21-1085 (RC)
:
v. : Re Document Nos.: 12, 14
:
NATIONAL SECURITY AGENCY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ CROSS-
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiffs
Richard Blake, Jr., Samuel Blake, Mary Blake, and Defendant National Security Agency
(“NSA”). Plaintiffs seek intelligence information relating to the 1985 disappearance and death
of Nicholas Blake—Richard and Samuel’s brother and Mary’s son. Blake Decl. ¶¶ 1–3, ECF
No. 13-2. Nicholas Blake was a U.S. citizen who traveled to Guatemala as a journalist to cover
the country’s civil war. Id. ¶ 2. He, along with a companion, disappeared while last seen on a
hiking trip in rural Guatemala in 1985. Ex. A to Blake Decl., Chronology of Blake Family
Investigation at 1–2, ECF No. 13-2. Their bodies were discovered and identified many years
later, and an investigation revealed that they had both been shot to death. Pls.’ Statement
Material Facts ¶ 3 (“Pls.’ Facts”), ECF No. 13-1. Plaintiffs believe that the Guatemalan Army
and Civil Patrols in the region were responsible for Nicholas Blake’s death. Id. ¶ 4. Decades
later, Plaintiffs have still been unsuccessful in obtaining the truth of what happened to Nicholas
Blake. Blake Decl. ¶ 9. They now turn to the NSA for answers, seeking release of radio-
telephone communications that the NSA allegedly intercepted in that region and time. The NSA
claimed FOIA Exemptions 1 and 3 and refused to confirm or deny the existence of such
information. Both parties moved for summary judgment. For the reasons explained below, the
Court does not have sufficient information to grant the NSA’s Glomar response under
Exemption 1. But the NSA has adequately shown that its Glomar response is justified under
Exemption 3. Therefore, the Court will grant the NSA’s motion for summary judgment and
deny Plaintiffs’ motion for summary judgment.
II. BACKGROUND
On August 23, 2016, Plaintiffs submitted a FOIA request to the NSA seeking records
“related to the disappearance and death of Nicholas Blake, a United States citizen, in Guatemala
in 1985.” Def.’s Statement Material Facts ¶ 1 (“Def.’s Facts”), ECF No. 12-1; Ex. A to Stevens
Decl. (“Request Letter”), ECF No. 12-2. Plaintiffs requested, among other things, “digital or
audio recordings, or paper or electronically-stored transcriptions of such recordings in the
Agency’s possession, of [Guatemalan Army] communications during the period March 20
through April 7, 1985, in any way relating to Nicholas Blake and Griffin Davis . . . .” Request
Letter at 2. The letter also provided key words and additional context for the search. Id. at 3–5.
The NSA responded by refusing to confirm “the fact of the existence or non-existence of the
materials” and cited FOIA Exemptions 1 and 3 as grounds for its refusal. Ex. B to Stevens Decl.
Plaintiffs filed an administrative appeal on October 24, 2016. Ex. C to Stevens Decl. Despite
further inquiries from Plaintiffs on the status of their appeal, their case remained on appeal with
2
the NSA for over four years. Exs. D, E, F to Stevens Decl.1 Plaintiffs finally brought suit in this
Court on April 20, 2021. Compl., ECF No. 1. Less than a month later, the NSA’s appeals
authority informed Plaintiffs that it “determined that NSA’s response was correct.” Ex. G to
Stevens Decl. Both parties subsequently moved for summary judgment in this case. ECF Nos.
12, 14. In support of its motion, the NSA submitted declarations from Sara K. Stevens, NSA’s
Deputy Chief of Policy, Information, Performance, and Exports, and Linda M. Kiyosaki, NSA’s
Chief of Enterprise Guidance Services. See Stevens Decl. ¶ 1, ECF No. 12-2; Kiyosaki
Decl. ¶ 1, ECF No. 16-1.
III. LEGAL STANDARD
The Freedom of Information Act is meant “to pierce the veil of administrative secrecy
and to open agency action to the light of public scrutiny.” U.S. Dep’t of State v. Ray, 502 U.S.
164, 173 (1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “directs that
‘each agency, upon any request for records . . . shall make the records promptly available to any
person’ unless the requested records fall within one of the statute’s nine exemptions.” Loving v.
Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent
with the Act’s goal of broad disclosure,” those exemptions should be “given a narrow compass.”
U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of
establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Wash. v. U.S.
Dep’t of Just. (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014).
1
Plaintiffs emphasize the length of this delay but do not argue that the NSA acted in bad
faith or that the delay alters the FOIA analysis. Pls.’ Cross-Mot. at 3–4. The NSA argues that its
delay is only relevant to whether this Court has jurisdiction, which it does not contest. See Def.’s
Reply Support Mot. Summ. J. and Opp’n Pls.’ Cross-Mot. Summ. J. (“Def.’s Reply”) at 2, ECF
No. 16 (citing Citizens for Resp. & Ethics in Washington v. FEC, 711 F.3d 180, 189 (D.C. Cir.
2013)). The Court is satisfied that it has jurisdiction. See Citizens, 711 F.3d at 185; 5 U.S.C.
§ 552(a)(6)(C)(i).
3
Because FOIA cases do not ordinarily involve disputed facts, they “are typically and
appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12
(D.D.C. 2009) (citations omitted). Summary judgment is warranted “if the movant shows 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). In assessing whether the movant has met that burden, a
court “must view the evidence in the light most favorable to the nonmoving party, draw all
reasonable inferences in his favor, and eschew making credibility determinations or weighing the
evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) (citations omitted). “This
burden does not shift even when the requester files a cross-motion for summary judgment
because ‘the Government ultimately has the onus of proving that the documents are exempt from
disclosure . . . .’” Hardy v. ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted)
(quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
Even if a FOIA exemption applies, an agency cannot withhold information unless it also
“reasonably foresees that disclosure would harm an interest protected by” the exemption. 5
U.S.C. § 552(a)(8)(A)(i)(I); see Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369
(D.C. Cir. 2021) (explaining the FOIA Improvement Act of 2016’s “foreseeable harm”
requirement).
Instead of searching for and withholding exempt records, “an agency may issue a Glomar
response, i.e., refuse to confirm or deny the existence or nonexistence of responsive records if
the particular FOIA exemption at issue would itself preclude the acknowledgement of such
documents.” Elec. Priv. Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) (citing Wolf v.
4
CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)).2 In considering a Glomar response, courts apply the
“general exemption review standards established in non-Glomar cases.” Knight First Amend.
Inst. at Columbia Univ. v. CIA, 11 F.4th 810, 813 (D.C. Cir. 2021) (quoting Wolf, 473 F.3d at
374). “An agency thus bears the burden to sustain a Glomar response.” Id. (citing 5 U.S.C.
§ 552(a)(4)(B)).
“[W]hen a Glomar response touches upon issues of national security—as is the case
here—courts must give agency decisions substantial deference, for judges lack the expertise
necessary to second-guess such agency opinions in the typical national-security FOIA case.”
Shapiro v. CIA, 170 F. Supp. 3d 147, 158 (D.D.C. 2016) (cleaned up). Thus, courts “consistently
defer[] to executive affidavits predicting harm to national security, and have found it unwise to
undertake searching judicial review.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331
F.3d 918, 927 (D.C. Cir. 2003). “Courts must sustain an agency’s Glomar response predicated
on a FOIA exemption when the justification for nondisclosure appears logical or plausible.”
Shapiro, 170 F. Supp. 3d at 158 (cleaned up).
IV. ANALYSIS
The NSA invokes two FOIA Exemptions—1 and 3—as grounds for its Glomar response.
As described in more detail below, the Court first concludes that the NSA has not waived its
Glomar response because Plaintiffs have provided no evidence that the NSA has previously
disclosed the existence of the requested information. Turning to the merits, the Court finds that
the NSA has not provided sufficient detail to show that that the requested information remains
classified under Exemption 1. Nonetheless, the NSA has provided sufficient information to
The term “Glomar response” is derived from a ship, the Glomar Explorer, at issue in a
2
FOIA case, Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). See Knight, 11 F.4th at 813.
5
satisfy Exemption 3 because the National Security Act protects the agency from disclosing its
intelligence functions and activities here. Because Exemption 3 provides a separate and
independent ground for the NSA’s Glomar response, the Court will grant the NSA summary
judgment. See Larson v. Dep’t of State, 565 F.3d 857, 862–63 (D.C. Cir. 2009) (“FOIA
Exemptions 1 and 3 are independent; agencies may invoke the exemptions independently and
courts may uphold agency action under one exemption without considering the applicability of
the other.”); see also ACLU, 628 F.3d at 619 n.2.
A. Prior Disclosure
The Court will first consider whether the NSA has waived its Glomar response. “An
agency waives any right to make a Glomar response by disclosing whether responsive records
exist.” Knight, 11 F.4th at 815 (citation omitted). “Once an agency makes such an
acknowledgment, ‘there is no value in a Glomar response. The secret is out.’” Id. (quoting
Leopold v. CIA, 987 F.3d 163, 167 n.5 (D.C. Cir. 2021)). “To establish official
acknowledgment, a plaintiff must identify information in the public domain that (1) matches the
information requested, (2) is as specific, and (3) has ‘been made public through an official and
documented disclosure.’” Id. (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)).
This test imposes a “substantial burden” on Plaintiffs to meet. All Party Parliamentary Grp. on
Extraordinary Rendition v. U.S. Dep’t of Def., 134 F. Supp. 3d 201, 208 (D.D.C. 2015); see also
Am. Ctr. for L. & Just. v. NSA, 474 F. Supp. 3d 109, 123 (D.D.C. 2020) (“The message is clear:
hold agencies to their official disclosures but be precise, lest courts force them to release
sensitive information they have not actually disclosed.”).
Here, Plaintiffs cannot show that prior disclosure occurred because they have not
supplied any evidence that the NSA acknowledged conducting surveillance in the region and
6
time at issue. They claim that it is “well established” that the NSA was a “careful observer[] of
developments in the brutal and bloody Guatemalan Civil War.” Pls.’ Mem. Opp’n Def.’s Mot.
Summ. J. and Support Cross-Mot. (“Pls.’ Cross-Mot.”) at 7, ECF No. 13-3. Plaintiffs aver that a
“two-volume report” published by George Washington University extensively discusses the
“‘sources and methods’ of surveillance operations . . . throughout the region.” Id. at 7–8. They
assert the U.S. government’s radio-telephone interceptions were “widely reported in the media”
and “discussed extensively in the academic literature.” Id. at 10, 15; Blake Decl. ¶¶ 7–8.
Plaintiffs claim to possess (but did not attach) “U.S. Government documents” such as
“diplomatic cables” of U.S. monitoring of “Guatemalan Army unit radio-telephone and radio
communications.” Pls.’ Cross-Mot. at 15. Finally, Plaintiffs conducted telephone interviews of
two academic experts and an ex-NSA employee and received “[e]xpert opinions” apparently
confirming the NSA’s surveillance activities in the region and time. Blake Decl. ¶¶ 7–8. Under
the prior disclosure test, however, none of these sources of information constitutes an official
acknowledgement by the NSA. See Knight,11 F.4th at 816 (“We have also rejected attempts to
establish an agency’s official acknowledgement based on disclosures by Congress . . . the
media . . . [and] the agency’s former employees . . . .” (citing cases)); see also id. at 817–18
(“[O]ne intelligence agency cannot officially acknowledge a matter for another . . . .”). In short,
there is no evidence that the NSA has itself acknowledged or disclosed this information. The
Court thus turns to the merits of the NSA’s Glomar response.3
3
The NSA construed the Request Letter as a request for “intelligence records.” Def.’s
Facts ¶ 2. Plaintiffs agree with the NSA’s interpretation. Pls.’ Facts ¶ A; Def.’s Reply at 1.
Accordingly, the Court’s analysis will be similarly limited in scope. Cf. Shapiro, 170 F. Supp.
3d at 156 (requiring the NSA to address non-intelligence records when the requester argued that
request was broadly worded to encompass non-intelligence records).
7
B. Exemption 1
Exemption 1 exempts records “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy and [which]
are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1)(A); see
also Larson, 565 F.3d at 861. The applicable classification order, Executive Order (“E.O.”) No.
13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), sets forth “both substantive and procedural criteria for
classification.” Jud. Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013). It
sets forth, in relevant part, the following conditions: (1) an original classification authority
classifies the information; (2) the information is under the control of the United States
Government; (3) the information falls under one or more of the categories of information listed
in § 1.4 of the order; and (4) the classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in damage to the national
security, and the authority is able to identify or describe the damage. E.O. 13,526 § 1.1; see
Competitive Enter. Inst. v. Dep’t of Treasury, 319 F. Supp. 3d 410, 417 (D.D.C. 2018).
Here, the parties’ dispute over Exemption 1 primarily centers on whether the NSA’s
Glomar response rests on information that is still classified.4 Specifically, Plaintiffs claim that
the requested records are thirty-six years old and therefore subject to automatic declassification
under E.O. 13,526. Pls.’ Cross-Mot. at 14. Section 3.3 of E.O. 13,526 provides that records
4
Plaintiffs also argue that Exemption 1 can never justify a Glomar response because E.O.
13,526 does not shield the fact of whether a document exists. Pls.’ Cross-Mot. at 13. But E.O.
13,526 expressly contemplates the use of Glomar responses, see § 3.6(a) (“An agency may
refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of
their existence or nonexistence is itself classified under this order of its predecessors.”), and
courts routinely permit this practice, see, e.g., Knight, 11 F.4th at 821 (“The district court
correctly concluded that the intelligence agencies’ Glomar responses were valid under
Exemption 1.”).
8
which “are more than 25 years old and . . . have been determined to have permanent historical
value . . . shall be automatically declassified” “except as provided” by exemption. E.O. 13,526
§ 3.3; see James Madison Project v. CIA, No. 18-cv-03112, 2020 WL 5653577, at *1 (D.D.C.
Sept. 23, 2020) (“Executive Order 13526 provides for automatic declassification, except in
certain circumstances.”).5 Section 3.3(b) then provides a list of nine exemptions to automatic
declassification. Notably, the NSA failed to identify which, if any, of § 3.3(b)’s nine
declassification exemptions applied. See Pls.’ Cross-Mot. at 13 n.7; Def.’s Mem. Support Def.’s
Mot. Summ. J. (“Def.’s Mot.”) at 4, ECF No. 12 (citing Stevens Decl. ¶¶ 22–26); cf. Hall v. CIA,
668 F. Supp. 2d 172, 188 (D.D.C. 2009) (“The records at issue here may well fall into one or
more of these [nine] categories, but the CIA has not made such an assertion.”).
Instead, the NSA claims declassification exemptions from a different source. As it turns
out, § 5.3(b)(2) of the same executive order authorizes an entity called the Interagency Security
Classification Appeals Panel (“ISCAP”) to “approve, deny, or amend agency exemptions from
automatic declassification as provided in section 3.3 of this order[.]” E.O. 13,526 § 5.3(b)(2).
The NSA proffers two declassification exemptions from an internal manual called the
NSA/CSS’s 2018 Declassification Guide, which the ISCAP approved. Kiyosaki Decl. ¶¶ 19–20,
ECF No. 16-1; cf. DiBacco v. U.S. Dep’t of the Army, 234 F. Supp. 3d 255, 272 (D.D.C. 2017)
(noting that the CIA Declassification Guide had been approved according to E.O. 13,526), aff’d,
926 F.3d 827 (D.C. Cir. 2019). These two exemptions are: (1) “[i]nformation revealing specific
sources and methods used by NSA/CSS to collect, and/or process SIGINT and that are currently
5
Neither party briefed whether the requested information “ha[s] been determined to have
permanent historical value.” E.O. 13,526 § 3.3. Because the NSA “bears the burden to sustain a
Glomar response,” Knight, 11 F.4th at 813, and the NSA does not contest this point, the Court
will only analyze the twenty-five-year requirement.
9
used today” and (2) “[i]nformation revealing NSA/CSS targeting, collecting, or processing
diplomatic or leadership communications of specific foreign country/countries, international
organization, group of individuals, or individuals after 31 December 1946.” Kiyosaki Decl.
¶ 21–22; Stevens Decl. ¶ 24–25.
At this juncture, the Court lacks enough information to allow the NSA to invoke these
two exemptions under the Declassification Guide. With respect to the Guide’s first exemption,
Plaintiffs claim that the 36-year old radio-telephone communications they seek is “substantially
obsolete” and therefore not “currently used” by the NSA. Pls.’ Cross-Mot. at 15; Pls.’ Reply
Def.’s Opp’n Cross-Mot. Summ. J. (“Pls.’ Reply”) at 5–7, ECF No. 17. The NSA did not
engage with this point. Pls.’ Reply at 6–7; Kiyosaki Decl. ¶ 23 n.6 (arguing that Glomar
response was appropriate “[r]egardless of the specific technology” in use today). Accordingly,
the NSA has not adequately explained why it is eligible to rely on the Guide’s first exemption.
With respect to the Declassification Guide’s second exemption, the NSA claims that
communications between military officials constitutes “leadership communications,” but makes
no attempt to define this term or explain its reach. Kiyosaki Decl. ¶ 23. For example, are
communications involving a low-level sergeant or mere civilians—which the request
encompasses—also “leadership communications”? Pls. Reply at 7. Therefore, the NSA has not
adequately explained why it is eligible to rely on the Guide’s second exemption, either.
The NSA’s briefing proffers yet one more basis to exempt information from automatic
declassification.6 According to the NSA, in 2014, the ISCAP approved “two file series
6
This new argument was raised in Ms. Kiyosaki’s supplemental declaration in support of
the NSA’s combined reply and opposition brief. Kiyosaki Decl. ¶¶ 25–27. Even if the NSA did
not forfeit this argument, see Conservation Force v. Jewell, 160 F. Supp. 3d 194, 204 n.4
(D.D.C. 2016), it is inadequate for the reasons described in this paragraph.
10
exemptions for NSA records” that exempted “NSA SIGINT Product and SIGINT Cryptanalysis
Methodologies . . . from automatic declassification.” Kiyosaki Decl. ¶¶ 25–27. The NSA claims
that the “summaries of raw data” that Plaintiffs request “would be specific to NSA SIGINT
products” and therefore “would be exempt from automatic declassification under NSA’s file-
series exemptions.” Id. ¶ 27. Treating the NSA’s representation with “substantial deference,”
Shapiro, 170 F. Supp. 3d at 158, the Court nonetheless finds this explanation inadequate. For
instance, it is unclear whether the file-series exemptions, assuming they apply in this context,
also exempt the “raw data” and any other intelligence information that the request seeks. See
Kiyosaki Decl. ¶ 27 (claiming that “raw data” Plaintiffs seek is covered by the Declassification
Guide’s two exemptions whereas “summaries of raw data” are covered by file-series
exemptions). Without more context, the Court is not prepared to rule for the NSA on this basis.
Therefore, the NSA has not currently satisfied any declassification exemption to show that the
requested information is still classified under Exemption 1. Ordinarily, the Court would consider
giving the NSA another chance to explain the basis for its Glomar response in more detail. That
is unnecessary here, however, because the NSA is independently entitled to summary judgment
on the basis of Exemption 3.
C. Exemption 3
Exemption 3 permits the withholding of records that are “specifically exempted from
disclosure by [a different] statute . . . if that statute . . . (i) requires that the matters be withheld
from the public in such a manner as to leave no discretion on the issue; or (ii) establishes
particular criteria for withholding or refers to particular types of matters to be withheld.” 5
U.S.C. § 552(b)(3). Under binding Circuit precedent, the agency must: “[1] show that the statute
claimed is one of exemption as contemplated by Exemption 3 and [2] that the withheld material
11
falls within the statute.” Larson, 565 F.3d at 865 (citation omitted); see DiBacco v. U.S. Army,
795 F.3d 178, 197 (D.C. Cir. 2015) (“[T]he sole issue for decision is the existence of a relevant
statute and the inclusion of withheld material within the statute’s coverage.” (citation omitted)).
Moreover, information need not be classified to fall within Exemption 3’s protection. See
Gardels v. CIA, 689 F.2d 1100, 1106 (D.C. Cir. 1982) (Exemption 3 does not require “first
determining that the withheld information was properly classified under Exemption 1” because
“Exemption 3 is independent of Exemption 1 and may be invoked independently”); Afshar v.
Dep’t of State, 702 F.2d 1125, 1137 (D.C. Cir. 1983) (same).
Here, the NSA claims that its Glomar response is specifically exempted by three
statutes: (1) Section 6 of the National Security Act of 1959, 50 U.S.C. § 3605; (2) 18 U.S.C.
§ 798; and (3) Section 102A(i) of the National Security Act of 1947, 50 U.S.C. § 3024. Kiyosaki
Decl. ¶¶ 35–37. “It is well established that each of these [three] statutes qualifies as an
Exemption 3 withholding statute . . . .” Willis v. NSA, No. 17-cv-2038, 2019 WL 1924249, at *8
(D.D.C. Apr. 30, 2019) (citing DiBacco, 795 F.3d at 199; Larson, 565 F.3d at 868; Hayden v.
NSA, 608 F.2d 1381, 1389–90 (D.C. Cir. 1979)). Thus, the only remaining question is whether
the withheld information falls within any of these statutes.
The NSA’s Glomar response falls squarely within Section 6 of the National Security Act
of 1959. Section 6 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). As this Circuit
has recognized, “[s]ection 6 . . . provides absolute protection.” Larson, 565 F.3d at 868(citations omitted); see Linder v. NSA, 94 F.3d 693, 698 (D.C. Cir. 1996) (“The protection
afforded by [this section] is, by its very terms, absolute.”); Schaerr v. United States Dep’t of
12
Just., 435 F. Supp. 3d 99, 114 n.12 (D.D.C. 2020) (“The protections provided by 50 U.S.C.
§ 3605(a) . . . are absolute.” (citations omitted)). Furthermore, “NSA need not make a specific
showing of potential harm to national security in order to justify withholding information under
Section 6, because ‘Congress has already, in enacting the statute, decided that disclosure of NSA
activities is potentially harmful.’” Elec. Priv. Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir.
2012) (quoting Hayden, 608 F.2d at 1390).
Here, the NSA has explained that “its signals intelligence activities and functions, and its
intelligence sources and methods, would be revealed if it were to confirm or deny the existence
of information responsive to plaintiffs’ FOIA request.” Def.’s Mot. at 5 (citing Stevens Decl.
¶ 38). The NSA elaborated that “[a]cknowledging the existence or nonexistence of responsive
records on particular individuals or organizations would provide [its] adversaries with critical
information about the capabilities and limitations of the NSA, such as the types of
communications that may be susceptible to NSA detection.” Stevens Decl. ¶ 28. “Over time, the
accumulation of these inferences would disclose the targets and capabilities, and therefore the
sources and methods, of NSA’s SIGINT activities and functions . . . .” Id. The Court finds that
the NSA’s explanation is plainly “logical or plausible.” Shapiro, 170 F. Supp. 3d at 158 (internal
quotation marks and citation omitted); see People for the Am. Way Found. v. NSA, 462 F. Supp.
2d 21, 31 (D.D.C. 2006) (“[T]here can be no doubt that the disclosure of SIGINT [material]
would reveal information concerning the activities of the agency . . . .” (quoting Linder, 94 F.3d
at 696)); Wilner v. NSA, 592 F.3d 60, 75 (2d Cir. 2009) (“[T]he very nature of their request—
which seeks records concerning whether . . . communications were monitored by the NSA—
13
establishes that any response would reveal ‘information with respect to the activities’ of the
NSA.”.7 Accordingly, summary judgment is warranted for the NSA.8
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion for summary
judgment (ECF No. 12) and DENIES Plaintiffs’ cross-motion for summary judgment (ECF No.
14). An order consistent with this Memorandum Opinion is separately and contemporaneously
issued.
Dated: July 29, 2022 RUDOLPH CONTRERAS
United States District Judge
Where, as here, one statute provides “ample support for the propriety of the NSA’s
7
invocation of Exemption 3,” the Court “need not opine about the sufficiency of . . . alternative
bases.” Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 329 n.7 (D.D.C.
2015); Knight First Amend. Inst. at Columbia Univ. v. CIA, 424 F. Supp. 3d 36, 42 n.10 (D.D.C.
2020), aff’d, 11 F.4th 810 (D.C. Cir. 2021).
8
Plaintiffs also claim that 22 U.S.C. § 2715a requires a response from the NSA. Pls.’
Cross-Mot. at 22–23. This statute provides that “it is in the national interests of the United States
to provide information regarding the killing, abduction, torture, or other serious mistreatment of
United States citizens abroad to . . . the families of victims of such crimes if they are United
States citizens.” 22 U.S.C. § 2715a(a)(1). But the same statute limits disclosure by allowing it
only “without jeopardizing sensitive sources and methods or other vital national security
interests” and when “such disclosure is [not] specifically prohibited by law.” Id. § 2715a(c). At
the very least, the information protected by Exemption 3 meets the latter limitation because it is
by definition “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3); see 50
U.S.C. § 3605(a) (“[N]othing in this chapter or any other law . . . shall be construed to
require . . . disclosure . . . .” (emphasis added)); cf. Linder v. Calero-Portocarrero, 251 F.3d 178,
183 (D.C. Cir. 2001) (observing that this provision “creates no enforceable rights on behalf of
any party. It provides no cause of action. It is simply a general statement of policy”).
14