American Center for Law and Justice v. United States National Security Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CENTER FOR LAW AND
JUSTICE,
Plaintiff,
v. Case No. 1:17-cv-01425 (TNM)
U.S. NATIONAL SECURITY AGENCY, et
al.,
Defendants.
MEMORANDUM OPINION
We all wear masks now, but this case is about a different type of masking. By law,
intelligence agencies focus their surveillance on foreign persons and cannot intentionally target
U.S. persons without individualized court orders. See 50 U.S.C. §§ 1881a, 1881b, 1881c. But
even when surveilling appropriate targets, they sometimes incidentally capture information about
U.S. persons. Intelligence reports typically “mask” the identities of these persons by using
generic references such as “U.S. Person 1.”
An “unmasking” request is a formal request to reveal the identity of an anonymized
person. Unmasking is subject to strict limitations, and only certain high-ranking officials can
authorize these requests. See id. §§ 1181a(e), 1801(h), 1821(4); Mot. Hr’g Tr. at 4–5. 1 As one
might expect, this procedure is highly controversial when a government official seeks the
unmasking of a political rival.
1
See also Office of the Dir. of Nat’l Intelligence, Intelligence Cmty. Policy Guidance 107.1,
Requests for Identities of U.S. Persons in Disseminated Intelligence Reports (Jan. 11, 2018),
https://www.dni.gov/files/documents/ICPG/ICPG-107.1.pdf.
In 2017, media reports surfaced that members of President Trump’s campaign and
transition team had been caught up incidentally in surveillance by U.S. intelligence agencies.
The reports suggested that officials in the outgoing Obama Administration had unmasked these
individuals. Citing these reports, the American Center for Law and Justice (“ACLJ”) submitted
requests under the Freedom of Information Act (“FOIA”) to the National Security Agency and
the State Department, seeking records related to the alleged unmasking requests.
Both agencies refused to confirm or deny the existence of records responsive to most of
ACLJ’s requests. As to the rest, the NSA’s search yielded no records and State’s search yielded
several records withheld in full or in part. ACLJ challenges some aspects of this response, and
the matter is before the Court on cross-motions for summary judgment. Both motions will be
granted in part and denied in part.
I.
In April 2017, Fox News reported that members of the Trump campaign and transition
team had been targeted by U.S. Government surveillance activities. 2 According to the report,
Susan Rice, National Security Advisor under President Obama, requested the unmasking of these
individuals.
Citing this report, ACLJ sent a three-part FOIA request to the NSA. NSA Compl. Ex. A
at 1–3, ECF No. 1-1. 3 The request names Rice and four other senior officials in the Obama
2
Susan Rice requested to unmask names of Trump transition officials, sources say, Fox News
(Apr. 3, 2017), https://www.foxnews.com/politics/susan-rice-requested-to-unmask-names-of-
trump-transition-officials-sources-say.
3
All page citations refer to the page numbers that the CM/ECF system generates. There are two
Complaints because ACLJ filed two separate actions—one for each FOIA request. The “NSA
Complaint” is on the docket for No. 17-cv-1425, and the “State Complaint” is on the docket for
No. 17-cv-1991. Early on, the Court consolidated the two, and all filings after this consolidation
are on the docket for No. 17-cv-1425. See Min. Order (Dec. 20, 2017).
2
Administration: Cheryl Mills, Chief of Staff to the Secretary of State; Valerie Jarrett, Senior
Advisor to the President; Loretta Lynch, Attorney General; and Ben Rhodes, Deputy National
Security Advisor. Id. at 4. Part 1 seeks
All records . . . where one communicant was Susan Rice, Cheryl Mills, Valerie Jarrett,
Loretta Lynch, or Ben Rhodes, and another communicant was the Director of the
[NSA] . . . or any other NSA official or employee . . . regarding . . . communication[s],
request[s] . . . whereby [Rice, Mills, Jarrett, Lynch, or Rhodes] sought access
to . . . SIGINT reports or other intelligence products or reports containing the name(s) or
any personal identifying information related to . . . Donald Trump [and 46 other specified
individuals.]
Id. at 4–5. Part 2, using similar language, targets any communications from the five Obama
Administration officials requesting the unmasking of Trump or the same 46 others. Id. at 5–7. 4
And Part 3 more generally seeks any communications between the five officials and the NSA
referencing Trump or the 46 others. Id. at 7–8. For all three parts, the requested timeframe is
“January 20, 2016, to January 20, 2017”—the final year of the Obama Administration. Id. at 3.
Invoking Exemptions 1 and 3 of FOIA, the NSA refused to confirm or deny the existence
of records responsive to Parts 1 and 2 of ACLJ’s request. Kiyosaki Decl. Ex. B at 24–25, ECF
No. 37-1. And it found no records responsive to Part 3. Id. at 25. All told, ACLJ’s FOIA
request to the NSA has yielded not one document. ACLJ challenges the NSA’s refusal to
confirm or deny the existence of records responsive to Parts 1 and 2 and the adequacy of the
agency’s search as to Part 3. Pl.’s Cross-Mot. at 5–10, ECF No. 39.
Later in 2017, ACLJ sent a similar, six-part FOIA request to the State Department. State
Compl. Ex. A, ECF No. 1-1 (17-cv-1991). It cited a report that Samantha Power, President
Obama’s Ambassador to the United Nations, had requested the unmasking of individuals
4
Part 2 originally was not limited to Trump and the 46 others, but ACLJ later agreed to narrow
Part 2 in this way. See Kiyosaki Decl. ¶ 12, ECF No. 37-1.
3
associated with the Trump transition team. Id. at 2. 5 Parts 1, 2, 4, and 5 seek records related to
requests Power made to unmask any of the 47 individuals named in the NSA request. See id. at
4–11. 6 These four parts concern intelligence-related materials, as they target Power’s attempts to
access “SIGINT reports or other intelligence products or reports.” Id.
Parts 3 and 6, meanwhile, more generally seek any communications sent or received by
Power referencing Trump or the 46 others. Id. at 7–8, 11; see Stein Decl. ¶ 6, ECF No. 37-3.
For all six parts, the requested timeframe is “January 20, 2016, to January 20, 2017”—the same
timeframe as with the NSA request. State Compl. Ex. A at 3.
Invoking FOIA Exemptions 1 and 3, State refused to confirm or deny the existence of
records responsive to Parts 1, 2, 4, and 5 of ACLJ’s request. Redmond Decl. Ex. B at 26, ECF
No. 37-2. In response to Parts 3 and 6, as narrowed, State released 243 records in whole or in
part and withheld nine documents in full. Stein Decl. ¶ 12.
ACLJ was unsatisfied. It challenges State’s refusal to confirm or deny the existence of
records responsive to Parts 1, 2, 4, and 5. Pl.’s Cross-Mot. at 5–8. It also challenges State’s
decision to withhold portions of 15 documents under Exemption 5 of FOIA. Id. at 10–16.
ACLJ does not challenge the adequacy of State’s search for records responsive to Parts 3
and 6. And though it raised a “pattern, practice, or policy” claim, see State Compl. ¶¶ 64–77,
ECF No. 1 (17-cv-1991), its summary judgment briefing never mentions this claim, so the Court
considers it abandoned. See, e.g., Noble Energy, Inc. v. Salazar, 691 F. Supp. 2d 14, 23 n.6
5
Adam Kredo, Former U.N. Amb. Power Unmasked ‘Hundreds’ in Final Year of Obama
Admin, Free Beacon (Aug. 2, 2017), https://freebeacon.com/national-security/former-u-n-amb-
power-unmasked-hundreds-last-year-obama-admin/.
6
Parts 2, 4, and 5 were originally not limited to Trump and the 46 others, but ACLJ later agreed
to this narrowed scope. See Redmond Decl. ¶ 7, ECF No. 37-2. It is this narrowed scope that is
relevant here. See DeFraia v. CIA, 311 F. Supp. 3d 42, 47 (D.D.C. 2018).
4
(D.D.C. 2010); accord Aliotta v. Bair, 614 F.3d 556, 562 (D.C. Cir. 2010) (“[P]laintiffs cannot
raise on appeal claims they allege in their complaint but abandon at the summary judgment
stage.”); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“Even an issue
raised in the complaint but ignored at summary judgment may be deemed waived.”).
The Court held a hearing on the parties’ cross-motions and they are ripe for disposition.7
II.
Summary judgment is appropriate if the record 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). The party seeking summary judgment has the initial burden of identifying those portions
of the record that show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met this burden, the non-moving party must
“designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (cleaned up).
The Court views the evidence “in the light most favorable to the non-moving party.” Brubaker
v. Metro. Life Ins. Co., 482 F.3d 586, 588 (D.C. Cir. 2007).
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). An agency must establish
beyond material doubt that it has conducted an adequate search—one reasonably calculated to
uncover all relevant documents. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). If the
agency withholds records under one of the FOIA exemptions, it “bears the burden of proving the
7
In its reply brief, ACLJ made new arguments based on events that took place in May 2020,
after the Government filed its combined reply and opposition brief. Pl.’s Reply at 4–11, ECF
No. 43; see infra Section III.A. The Court permitted the Government to respond to the new
arguments, and it did so. Min. Order (May 22, 2020); see Defs.’ Sur-Reply, ECF No. 44. ACLJ
had an opportunity at the hearing to address the Government’s sur-reply. See Mot. Hr’g Tr. at
26–39.
5
applicability of [the] claimed exemptions.” ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011).
“[A]n agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or
plausible.” Id. (cleaned up). The agency must also produce any “reasonably segregable portion
of a record . . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).
To meet its burden, an agency may rely on affidavits, Aguiar v. DEA, 865 F.3d 730, 734–
35 (D.C. Cir. 2017), which receive “a presumption of good faith,” SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court may grant summary judgment based on the
agency’s affidavits alone “if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Aguiar, 865 F.3d at 734–35 (cleaned up).
III.
The parties’ cross-motions for summary judgment present three issues: (1) whether the
NSA and State properly refuse to confirm or deny the existence of certain documents; (2)
whether the NSA’s search for records was adequate; and (3) whether State properly withheld
portions of 15 documents under Exemption 5 of FOIA. In brief, the Court finds that State
improperly refuses to confirm the existence of some documents, that the NSA’s search was
partially inadequate, and that State’s Exemption 5 withholdings were proper.
A.
In response to ACLJ’s FOIA requests, the NSA and State both refuse to confirm or deny
the existence of intelligence-related records. This refusal is known as a Glomar response. 8
8
The name derives from the CIA’s refusal to confirm or deny whether it had records about
Howard Hughes’s Glomar Explorer, a ship reportedly used to recover a sunken Soviet
submarine. ACLU v. CIA, 710 F.3d 422, 426 n.1 (D.C. Cir. 2013).
6
The general rule under FOIA is that agencies “must acknowledge the existence of
information responsive to a . . . request” and then either release the information or explain why
an exemption justifies withholding it. Roth v. DOJ, 642 F.3d 1161, 1178 (D.C. Cir. 2011). But
sometimes even admitting the existence of records implicates an exemption. If an exemption
prevents an agency from acknowledging the existence of records, it can refuse to confirm or
deny their existence—a Glomar response. EPIC v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012).
When an agency invokes a FOIA exemption to support a Glomar response, the same
general standard of review applies: the agency’s affidavit must be reasonably specific and the
justification for invoking the exemption must appear logical or plausible. Id. When agencies
assert Glomar responses in the interest of national security, as commonly happens, they get a
healthy dose of deference. See Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (“[I]n the
context of national security concerns, courts must accord substantial weight to an agency’s
affidavit concerning the details of the classified status of the disputed record.” (cleaned up)).
Unsurprisingly, there are caveats to the Glomar doctrine. One is that an agency cannot
refuse to confirm or deny the existence of records if it has, in fact, officially acknowledged their
existence. A plaintiff “can overcome a Glomar response by showing that the agency has already
disclosed the fact of the existence (or nonexistence) of responsive records, since that is the
purportedly exempt information that a Glomar response is designed to protect.” ACLU v. CIA,
710 F.3d 422, 427 (D.C. Cir. 2013). The plaintiff has the burden of pointing to an official
disclosure in the public domain that establishes the existence (or not) of responsive records. Id.This point bears emphasis: the question is whether the agency has acknowledged the
existence (or nonexistence) of responsive records, not whether it has disclosed the contents of the
records. Id. If the agency has officially acknowledged the existence of records, it cannot assert a
7
Glomar response for those records. Wolf, 473 F.3d at 379. Bereft of its Glomar shield, the
agency has a decision to make, the same one it has in any standard FOIA case: either disclose
the records or establish that their contents are exempt from disclosure. See id. at 379–80.
Here, the NSA asserts Glomar responses for Parts 1 and 2 of ACLJ’s request to it, and
State asserts Glomar responses for Parts 1, 2, 4, and 5 of ACLJ’s request to it. All these parts
seek records related to alleged requests by Obama Administration officials to access intelligence
reports. In refusing to confirm or deny the existence of such records, both agencies rely on
FOIA Exemptions 1 and 3.
Exemption 1 protects matters “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy” and “in
fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Both agencies
invoke Executive Order 13,526, which authorizes the classification of information about
intelligence activities, sources, and methods. Exec. Order No. 13,526, § 1.4(c), 75 Fed. Reg. 707(Dec. 29, 2009). Their affidavits adequately detail why “the fact of the existence or
nonexistence” of responsive records is properly classified under this Executive Order. Kiyosaki
Decl. ¶¶ 15–22, ECF No. 37-1; Redmond Decl. ¶¶ 9–21, ECF No. 37-2.
Exemption 3 covers matters “specifically exempted from disclosure by statute.” 5 U.S.C.
§ 552(b)(3). Both agencies cite 50 U.S.C. § 3024(i)(1), and the NSA also relies on 50 U.S.C.
§ 3605 and 18 U.S.C. § 798. The agencies’ declarations adequately explain why “the fact of the
existence or nonexistence” of responsive records is exempt from disclosure under these statutes.
Kiyosaki Decl. ¶¶ 23–28; Redmond Decl. ¶¶ 22–23.
The Court need not discuss Exemptions 1 and 3 further, because ACLJ does not
challenge either agency’s reliance on these exemptions. Instead, it contends that both agencies
8
have waived their Glomar responses by officially acknowledging the existence of responsive
records. Pl.’s Cross-Mot. at 5–8.
In support of this argument, ACLJ first points to statements that Obama Administration
officials made after leaving office. See id. at 4, 7–8; Pl.’s Statement of Add. Material Facts
(“PSAMF”) ¶¶ 24–28, ECF No. 39-1. By relying on these statements, ACLJ invites the Court to
accept that statements made by former agency officials can constitute the sort of “official
acknowledgment” that overcomes a Glomar response.
The Court declines this invitation. A “disclosure made by someone other than the agency
from which the information is being sought” is not an “official” disclosure. Frugone v. CIA, 169
F.3d 772, 774 (D.C. Cir. 1999). The D.C. Circuit has “squarely rejected the argument that
statements in books written by former [CIA] agents could be considered official disclosures.”
Pub. Citizen v. Dep’t of State, 11 F.3d 198, 201–02 (D.C. Cir. 1993). Courts have consistently
found that statements by former agency officials are not official agency disclosures. See Hudson
v. River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 421–22 (2d Cir. 1989);
James Madison Project v. DOJ, 302 F. Supp. 3d 12, 27–28 (D.D.C. 2018).
ACLJ cites no decision to the contrary, which is unsurprising. It would be surpassing
strange if an agency had to confirm the existence of records—and in doing so, compromise
national security—simply because a private citizen no longer representing the agency forces its
hand.
ACLJ also suggests that members of Congress can waive Glomar responses. See Pl.’s
Cross-Mot. at 8. But disclosures by members of Congress—much like disclosures by former
agency officials—are also not official agency disclosures. See Frugone, 169 F.3d at 774; accord
Schaerr v. DOJ, 435 F. Supp. 3d 99, 118 (D.D.C. 2020) (“Congressman Nunes serves in the
9
legislature, not the executive branch, and does not speak for the agency.”). A contrary rule
would almost certainly raise significant constitutional problems, as this would invite
congressional encroachment on the Executive’s authority to control access to national security
information. See Fitzgibbon v. CIA, 911 F.2d 755, 765–66 (D.C. Cir. 1990).
By citing press reports on the alleged unmasking requests, see PSAMF ¶¶ 24–28, ACLJ
suggests that the media can waive Glomar responses. Not so. See EPIC, 678 F.3d at 933 n.5;
Knight First Amendment Inst. v. CIA, 424 F. Supp. 3d 36, 44 (D.D.C. 2020). ACLJ also posits
that “[f]or purposes of overcoming a Glomar response . . . [w]hat is important is that [the fact of
unmasking requests] is now widely known.” Pl.’s Cross-Mot. at 8. Again, ACLJ is mistaken.
See Wolf, 473 F.3d at 378 (“An agency’s official acknowledgment of information by prior
disclosure . . . cannot be based on mere public speculation, no matter how widespread.”).
Perhaps recognizing the weakness of these arguments, ACLJ tries a different tack in its
reply brief. See Pl.’s Reply at 3–4, ECF No. 43. It urges that two recent disclosures overcome
the agencies’ Glomar responses. Id. at 4–11. 9 Here, matters become more complicated.
1.
The first disclosure comes from then-Acting Director of National Intelligence (“DNI”)
Richard Grenell. On May 4, 2020, the NSA issued a memorandum “pursuant to the oversight
authorities vested with the [DNI]” that provides “a revised list of identities of any officials who
submitted requests to the [NSA] at any point between 8 November 2016 and 31 January 2017, to
unmask the identity of former National Security Advisor, Lieutenant General Michael T. Flynn
9
Though ACLJ makes this argument for the first time in its reply brief, that is appropriate here
because the relevant disclosures occurred in May 2020, after ACLJ submitted its first brief. In
responding to ACLJ’s reply brief, the Government tackles the new argument on the merits and
does not contend that ACLJ forfeited it. See Defs.’ Sur-Reply at 1–6.
10
(USA-Ret.).” Sisney Decl. Ex. 2 at 5, ECF No. 43-1. Samantha Power is among the listed
officials. Id. at 6. Grenell declassified the memorandum shortly after it was issued and sent it to
two Senators. Id. at 4; Sisney Decl. ¶¶ 2–3.
In its briefing, the Government acknowledged that this disclosure can in theory waive the
NSA’s Glomar responses, though it suggested that a DNI’s disclosure can never waive State’s
Glomar responses. See Defs.’ Sur-Reply at 2–3, ECF No. 44. But at oral argument, the
Government changed course on the latter point, conceding that the DNI’s disclosure can vitiate
the intelligence-related Glomar responses that State asserts here. Mot. Hr’g Tr. at 10. 10 The
only question now is whether the Acting DNI’s disclosure here does overcome State’s (or the
NSA’s) Glomar responses. Answering this requires close attention to exactly what the
declassified memorandum discloses, for a Glomar waiver occurs only when the official
disclosure “matches . . . the specific request for that information.” Wolf, 473 F.3d at 379.
On this issue, both parties stake out absolute positions. The Government contends that
the relevant disclosure is not specific enough to establish the existence of any records responsive
to ACLJ’s requests. See Defs.’ Sur-Reply at 2–4. ACLJ, meanwhile, urges that the disclosure
establishes the existence of at least some records responsive to the State request, and it suggests
that this waives all of State’s (and the NSA’s) Glomar responses. See Pl.’s Reply at 7–8. The
10
The Court agrees with the Government’s concession. One agency’s disclosure generally
cannot vitiate the Glomar response of an unrelated agency, but that rule “does not
apply . . . where the disclosures are made by an authorized representative of the agency’s
parent.” ACLU, 710 F.3d at 429 n.7. The DNI is State’s “parent” for purposes of its Glomar
responses. The State Department office tasked with substantiating the agency’s Glomar
responses was the Bureau of Intelligence and Research (“INR”), see Redmond Decl. ¶¶ 1, 5, 8, a
member of the U.S. Intelligence Community, 50 U.S.C. § 3003(4)(I). The DNI “serve[s] as head
of the [I]ntelligence [C]ommunity,” id. § 3023(b)(1), and the INR reports to the DNI, see
Redmond Decl. ¶ 2. Given the DNI’s “parent” status, its disclosures are “official
acknowledgments” across all subordinate intelligence units, including the INR. See Knight First
Amendment Inst., 424 F. Supp. 3d at 42–44.
11
Court rejects both positions: the disclosure is specific enough to establish the existence of some
responsive records, but it waives State’s Glomar responses for those records only and waives
none of the NSA’s Glomar responses.
The case law demands precision when analyzing the scope of a Glomar waiver. “Prior
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.
This “insistence on exactitude” honors “the Government’s vital interest in information relating to
national security.” Id. (cleaned up). Indeed, “the fact that information resides in the public
domain does not eliminate the possibility that further disclosures can cause harm to intelligence
sources, methods, and operations.” Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990).
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. The D.C. Circuit
thus has consistently rejected the “claim that public disclosure of some information overlapping
with [the] content of requested material results in waiver as to all information.” Wolf, 473 F.3d
at 378 (emphasis added) (citing Military Audit Project v. Casey, 656 F.2d 724, 752–53 (D.C. Cir.
1981)); see also Pub. Citizen, 11 F.3d at 202–03; Fitzgibbon, 911 F.2d at 765–66.
Consider Wolf. The plaintiff’s FOIA request to the CIA in that case sought “all records
about Jorge Eliecer Gaitan” (a former Colombian politician), but the agency refused to confirm
or deny the existence of such records. 473 F.3d at 378. To overcome this Glomar response, the
plaintiff pointed to “CIA Director Hillenkoetter’s testimony before the Congress in 1948.” Id. at
379. That testimony revealed the existence of some records about Gaitan. Id. But—critically—
the court did not order the CIA to acknowledge the existence of all records it had about Gaitan.
Instead, the court emphasized that “[t]he CIA’s official acknowledgement waiver relate[d] only
12
to the existence or nonexistence of the records about Gaitan disclosed by Hillenkoetter’s
testimony.” Id. So the plaintiff was “entitled to disclosure of that information, namely the
existence of CIA records about Gaitan that have been previously disclosed (but not any others).”
Id. (emphasis added). The Glomar waiver had a narrow and limited scope.
So too here. The declassified memorandum encloses “a list of recipients who may have
received [Flynn’s] identity in response to a request . . . to unmask an identity that had been
generically referred to in an NSA foreign intelligence report.” Sisney Decl. Ex. 2 at 6. The list
consists of “select identified principals,” including Power. Id. “[A]uthorized individuals
requested unmaskings . . . for [these] select identified principals.” Id. (emphasis added). So the
memorandum acknowledges that individuals made requests, on behalf of Power, to unmask
Flynn. In doing so, it establishes the existence of records relating to these requests, as the
Government concedes. See Defs.’ Sur-Reply at 3. And even more narrowly, the memorandum
lists only six dates on which these requests were made. Sisney Decl. Ex. 2 at 6.
This disclosure is not specific enough to establish the existence of most records the
Government refuses to acknowledge. The NSA asserts a Glomar response for Parts 1 and 2 of
ACLJ’s FOIA request, which target unmasking requests from Susan Rice, Cheryl Mills, Valerie
Jarrett, Loretta Lynch, and Ben Rhodes. NSA Compl. Ex. A at 4–7. The declassified
memorandum lists several principals, but not Rice, Mills, Jarrett, Lynch, or Rhodes. Sisney Decl
Ex. 2 at 6–8. Given the precision the case law demands, this silence “makes a difference.”
James Madison Project, 302 F. Supp. 3d at 31–32 (citing Wolf, 473 F.3d at 373–74, 378). The
memorandum does not establish the existence of any records of unmasking requests from Rice,
Mills, Jarrett, Lynch, or Rhodes, so it fails to overcome the NSA’s Glomar responses.
The same is true for Parts 4 and 5 of ACLJ’s request to State. Both parts seek
13
All records . . . regarding in any way . . . requests from [Power] . . . regarding
“minimization procedures” in connection with . . . requests made by
[Power] . . . regarding the “unmasking” of or access to the “unmasked” names or other
personal identifying information of [Donald Trump and 46 others] contained in SIGINT
reports or other intelligence products or reports[.]
State Compl. Ex. A at 8, 10 (emphasis added). The declassified memorandum references no
“requests from [Power] . . . regarding ‘minimization procedures.’” Sisney Decl. Ex. 2 at 5–8. So
it does not establish the existence of documents responsive to Parts 4 or 5.
Parts 1 and 2 of the State request present a closer question. Part 1 seeks
All records . . . where one communicant was [Power] . . . and where another
communicant was the Director of the [NSA] . . . or any other NSA official or
employee . . . which regards in any way . . . any communication, request . . . whereby
[Power] sought access to or attempted to access SIGINT reports or other intelligence
products or reports containing the name(s) or any personal identifying information related
to [Donald Trump and 46 others.]
State Compl. Ex. A at 4–5 (emphasis added). Part 2, meanwhile, targets
All records . . . regarding in any way . . . requests from [Power] . . . made to the Director
of the [NSA] . . . or any other NSA official or employee . . . requesting the “unmasking”
of or access to the “unmasked” names or other personal identifying information of
[Donald Trump and 46 others] contained in SIGINT reports or other intelligence products
or reports[.]
Id. at 5–7 (emphasis added).
For both Parts, the Government advances the same argument. It notes that the
declassified memorandum mentions only unmasking requests made “for” Power—that is, on
behalf of Power. See Defs.’ Sur-Reply at 3. This, it urges, is not specific enough to establish the
existence of records responsive to Parts 1 or 2, because both parts seek only “records in which
[Power] was a ‘communicant.’” Id.The Court rejects this argument as to Part 2. That part is not limited to records in which
Power was a “communicant.” It more broadly seeks records “regarding in any way . . .
14
[unmasking] requests from [Power].” State Compl. Ex. A at 5. So it comes down to this: are
unmasking requests made on behalf of Power equivalent to unmasking requests from Power?
By identifying Power as a “principal,” the memorandum itself establishes that she was in
a principal-agent relationship with the “authorized individuals” who made requests “for” her.
Sisney Decl. Ex. 2 at 6. A defining feature of this sort of relationship is the principal’s control
over the agent. See, e.g., CIR v. Banks, 543 U.S. 426, 436 (2005); Restatement (Third) of
Agency § 1.01 (Am. Law. Inst. 2006). For this reason, the law generally attributes an agent’s
actions to the principal when the agent acts within the bounds of his authority. See, e.g., Salyers
v. Metro. Life Ins. Co., 871 F.3d 934, 939 (9th Cir. 2017); Restatement (Third) of Agency § 2
intro. note; see also McKesson Corp. v. Islamic Rep. of Iran, 52 F.3d 346, 351–52 (D.C. Cir.
1995) (discussing whether a principal-agent relationship existed and thus whether the actions of
the alleged agent could be attributed to the alleged principal). And there is no suggestion here
that in making the requests, the “authorized individuals” were acting beyond the scope of their
agency relationship with Power. So here, the requests from Power’s subordinates were requests
from her.
This result should be commonsense for anyone who works in a hierarchical organization,
like the government. A communication “on behalf of the principal” is equivalent to a
communication “from the principal.” Consider some examples close to home. If a law clerk
emails counsel on behalf of the judge, counsel is well advised to view that email as “from” the
judge, even though the judge did not type the email. And if an AUSA files a brief, it comes with
the imprimatur of the U.S. Attorney, even if he did not personally review it.
At oral argument, the Government’s position on this issue shifted slightly. It suggested
that the declassified memorandum does not refer to unmasking requests made on behalf of
15
Power. See Mot. Hr’g Tr. at 5–9, 49. Instead, it suggested, the memorandum refers simply to
unmasking requests by individuals whom Power “authorized” at some indeterminate point—
perhaps long ago—to make these requests. See id. And, it speculated, these individuals were
making the requests for their own devices and without Power’s knowledge. See id.This shift in argument changes little. For one, the Government’s speculation finds scant
support in the memorandum’s language. The only hint that Power’s subordinates were making
the unmasking requests for their own devices is the memorandum’s proviso that the principals
may not have personally seen the unmasked information. See Sisney Decl. Ex. 2 at 6. But that is
a thin reed, especially when the memorandum also states that the “authorized individuals” made
the unmasking requests “for” the principals. Id.; see Defs.’ Sur-Reply at 3. It says nothing about
subordinates making the requests for themselves or without the principal’s knowledge. In fact,
the memorandum’s cover page describes the enclosed list as giving the “identities of any
officials who submitted requests . . . to unmask . . . Flynn.” Sisney Decl. Ex. 2 at 5 (emphasis
added). As the list provides only the identities of the principals—not their subordinates—the
cover page itself suggests that these unmasking requests were truly from the principals, including
Power.
And even if the Government’s speculation were accurate, this would make no difference.
As noted, there is no suggestion that the “authorized individuals” making the unmasking requests
were acting outside the bounds of the authority that Power gave them. Given that, these requests
made “for” Power—the principal—are attributable to her, no matter how long ago she authorized
16
her agents, no matter if she knew about the requests, and no matter if the agents had personal
reasons for making the requests. See Restatement (Third) of Agency §§ 1.01 cmt. f, 3.06, 5.03. 11
In sum, because the declassified memorandum establishes the existence of records about
unmasking requests from Power, it waives State’s Glomar response as to Part 2 of ACLJ’s
request. But importantly, the scope of the waiver is narrow. The memorandum references only
requests to unmask Lt. Gen. Michael Flynn, not anyone else. Given this silence, it does not
establish the existence of unmasking records for any of the 46 others named in ACLJ’s request.
As discussed, the law demands exactitude when defining the scope of a Glomar waiver, even the
smallest mismatch precludes waiver. See Wolf, 473 F.3d at 378–79. As the memorandum never
mentions the 46 individuals other than Flynn, it is unavailing for those individuals. So the
Glomar waiver for Part 2 extends only to Flynn, not any of the 46 others.
The applicable dates for the waiver are also limited. In Fitzgibbon, for example, the D.C.
Circuit “rejected the argument that congressional testimony establishing the existence of a CIA
station in the 1960s waived . . . protection of records about the station in the 1950s because the
time period specified in the plaintiff’s FOIA request did not match the time period of the prior
disclosure.” Id. at 378 (citing 911 F.2d at 765–66). Here, the timeframe specified in ACLJ’s
FOIA request is “January 20, 2016, to January 20, 2017.” State Compl. Ex. A at 3. The six
dates listed under Power’s name in the memorandum all fall into that range, see Sisney Decl. Ex.
2 at 6, so the unmasking requests made on those six dates are fair game. But no more than that.
11
The Government admits that the declassified memorandum would be a match with Part 2 if
that part had mentioned unmasking requests “indirectly from” Power, as opposed to requests
“directly from” her. See Mot. Hr’g Tr. at 7–8. Even assuming a meaningful difference exists
between “indirectly from” and “directly from” in this context, the Government’s admission still
effectively concedes the point, for ACLJ did not use the words “directly from.” Rather, Part 2
seeks records “regarding in any way . . . requests from [Power],” without limiting itself to
requests “directly from” her. State Compl. Ex. A at 5 (emphasis added).
17
In other words, the existence of requests made on November 30, December 2, December 7,
December 14, December 23 (all in 2016), and January 11, 2017, id., does not establish the
existence of unmasking requests made on any other dates. So the Glomar waiver for Part 2
extends only to the unmasking requests made on those six dates.
Consistent with the above, State no longer can assert a Glomar response—for Part 2—for
records about the unmasking requests referenced in the declassified memorandum. Here, that
means requests made on behalf of Power to unmask Flynn, on the six dates specified in the
memorandum. State now must either turn over these records or else establish that their contents
are exempt from disclosure. See Wolf, 473 F.3d at 380.
There is a final bit of housekeeping on this point. The Court need not decide whether the
declassified memorandum overcomes any portion of State’s Glomar response for Part 1 of
ACLJ’s request. At oral argument, the parties agreed that the Court need not decide this if it
concludes—as it has—that the memorandum overcomes State’s Glomar response for Part 2. See
Mot. Hr’g Tr. at 38 (ACLJ), 53–54 (Government).
2.
The other recent disclosure that ACLJ relies on is a transcript of Power’s testimony
before the House Permanent Select Committee on Intelligence in October 2017. Pl.’s Reply at
8–11. Her testimony, standing alone, consists of statements by a former official, so it cannot
overcome either agency’s Glomar responses, as explained above.
ACLJ tries to surmount this by claiming the transcript was “declassified by the
Intelligence Community.” Pl.’s Corrected Reply at 8, ECF No. 46. This argument suffers from
several problems. For one, ACLJ provides no evidence that the Intelligence Community
declassified the transcript. Its accompanying declaration states simply that “[o]n May 8, 2020,
18
the [Committee] released the transcript of the testimony provided by [Power] before the
[C]ommittee in Executive Session [in October 2017].” Sisney Decl. in Corrected Reply Br. ¶ 4,
ECF No. 46-1. And the transcript itself reveals nothing about whether the Intelligence
Community declassified it. Sisney Decl. Ex. 3 at 10–30, ECF No. 43-1.
ACLJ also does not explain who in the Intelligence Community declassified it or whether
that official or entity enjoys “parent” status relative to the NSA or State. See supra note 10. Nor
does ACLJ seek to explain how declassification of a transcript containing statements by a former
agency official might convert those statements into official agency disclosures. Does
declassification mean that the Intelligence Community stands by Power’s statements? We are
left to speculate, because ACLJ is silent on all these points.
Recall that the plaintiff has the burden of pointing to an official disclosure in the public
domain that overcomes a Glomar response. ACLU, 710 F.3d at 427. Thus, because ACLJ offers
no evidence that the transcript represents an official disclosure, it cannot rely on it to overcome
any Glomar responses.
And even if the transcript were an official disclosure, that still would not help ACLJ.
Nothing that Power states in the transcript is specific enough to establish the existence of any
records subject to the agencies’ Glomar responses.
ACLJ contends that Power admitted making unmasking requests for “persons affiliated
with the Trump Campaign and the incoming Trump Administration.” Pl.’s Reply at 11. That is
inaccurate. Though members of the Committee asked her about unmasking, she never admitted
making requests to unmask members of the Trump campaign and transition team, let alone any
of the 47 specific individuals named in ACLJ’s FOIA requests. See Sisney Decl. Ex. 3 at 10–30.
19
Indeed, the only individual Power ever mentioned is Michael Flynn, and she claimed to have “no
recollection of making a request related to [him].” Id. at 21.
Given the precision that the law demands in the Glomar context, this transcript—even if
it represents an official disclosure—does not overcome either agency’s Glomar responses.
B.
The NSA did not assert a Glomar response for Part 3 of ACLJ’s request, which seeks
All records . . . created, generated, forwarded, transmitted, sent, shared, saved, received,
or reviewed by the Director of the [NSA], the Chief of the Central Security Service,
SIGINT production organization personnel, the Signals Intelligence Director, Deputy
Signals Intelligence Director, or the Chief/Deputy/Senior Operations Officers of the
National Security Operations Center, or any other NSA official or employee, where one
communicant was [Rice, Mills, Jarrett, Lynch, or Rhodes] and another communicant was
any NSA official or employee, containing any reference to the term “Trump” or names or
other personal identifying information of [Donald Trump and 46 others.]
NSA Compl. Ex. A at 7–8. The agency’s search yielded no records responsive to Part 3.
Kiyosaki Decl. Ex. B at 25. ACLJ challenges the adequacy of this search.
To show an adequate search, the agency must “demonstrate beyond material doubt that
its search was reasonably calculated to uncover all relevant documents.” Nation Magazine v.
U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (cleaned up). The adequacy of a search
“is generally determined not by [its] fruits . . . but by the appropriateness of the methods used to
carry [it] out.” Iturralde v. Compt. of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
To carry its burden, an agency can submit a “reasonably detailed affidavit, setting forth
the search terms and the type of search performed, and averring that all files likely to contain
responsive materials . . . were searched.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990). Courts give these affidavits “a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and discoverability of other
documents.” SafeCard Servs., Inc, 926 F.2d at 1200 (cleaned up). Searching for records
20
requires “both systemic and case-specific exercises of discretion and administrative judgment
and expertise,” so it “is hardly an area in which the courts should attempt to [micromanage] the
executive branch.” Schrecker v. DOJ, 349 F.3d 657, 662 (D.C. Cir. 2003).
ACLJ raises two objections to the NSA’s search. First, it complains about the agency’s
decision to search the records of only three NSA officials. The agency’s declaration explains
that Part 3 “specifically requested records in which [Rice, Mills, Jarrett, Lynch, or Rhodes] was a
direct communicant.” Kiyosaki Decl. ¶ 29. Because all five occupied “senior positions,” only
“certain NSA officials—at least one of the Director, the Deputy Director, or the Executive
Director—would have received or been copied on all direct correspondence between the [NSA]
and [the five].” Id. Thus, the agency searched only the records of the Director, the Deputy
Director, and the Executive Director. Id.ACLJ believes this search was too limited. Pl.’s Cross-Mot. at 9. It notes that Part 3
seeks records “sent [and] received” by a host of other NSA employees: “the Chief of the Central
Security Service, SIGINT production organization personnel, the Signals Intelligence Director,
Deputy Signals Intelligence Director, [and] the Chief/Deputy/Senior Operations Officers of the
National Security Operations Center.” Id. ACLJ demands that the NSA search the records of all
these employees too, id., though in reply, it omits any reference to “SIGINT production
organization personnel,” Pl.’s Reply at 13. ACLJ also faults the NSA for providing “no citation
to a policy or standard practice” supporting a decision to search the records of only three
officials. Pl.’s Cross-Mot. at 9.
The Court disagrees with ACLJ here. A plaintiff has no authority to dictate the scope of
an agency’s search. See Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir. 2015). While a “well
defined” FOIA request may go a long way to expose deficiencies, see DiBacco v. Dep’t of the
21
Army, 926 F.3d 827, 832 (D.C. Cir. 2019), ACLJ’s request was not well defined. It sought
records “sent or received” by all “SIGINT production organization personnel” and, as a catch-all,
“any other NSA official or employee.” NSA Compl. Ex. A at 7. And it defined the term “NSA
official” to encompass not only agency employees but also any person “contracted for services
by or on behalf of the NSA.” Id. at 3. So if the agency had adhered to ACLJ’s proposed scope,
it would have searched the records of every NSA employee and contractor.
The agency need not do this, as even ACLJ now concedes. See Pl.’s Reply at 13.
ACLJ’s reply brief omits any reference to “SIGINT production organization personnel” and “any
other NSA official or employee.” Id. In doing so, it admits that the request posed a line-drawing
problem for the agency and that drawing the line somewhere short of all employees was proper.
See Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (“[A]dequacy is measured by the
reasonableness of the effort in light of the specific request.”).
The NSA drew that line at the Director, the Deputy Director, and the Executive Director,
because these officials, it reasoned, would have been copied on any correspondence with the five
senior Obama Administration officials that ACLJ named. Kiyosaki Decl. ¶ 29. That rationale,
supported by an affidavit, id., is entitled to a presumption of good faith. SafeCard Servs., Inc.,
926 F.2d at 1200. And it is eminently reasonable to believe that high-ranking Administration
officials would have communicated with their peers at the NSA, not career subordinates.
ACLJ tries to rebut the good-faith presumption only with speculation that responsive
records may exist with other officials, see Pl.’s Cross-Mot. at 9; Pl.’s Resp. to Defs.’ Statement
of Material Facts ¶ 5, ECF No. 39-1; Pl.’s Reply at 12–13, but this is not enough. SafeCard
Servs., Inc., 926 F.2d at 1200. As for ACLJ’s suggestion that the NSA had to cite “a policy or
standard practice” justifying its decision, Pl.’s Cross-Mot. at 9, no such requirement exists. To
22
the contrary, the law recognizes that FOIA searches often involve “case-specific exercises of
discretion and administrative judgment and expertise.” Schrecker, 349 F.3d at 662.
ACLJ’s second objection concerns the NSA’s initial search terms. Here, ACLJ is on
firmer footing. The agency devotes a single sentence to this subject in its declaration, explaining
that it “us[ed] various permutations of the officials’ names (e.g., susan rice, srice, rice susan) to
identify an initial subset of records.” Kiyosaki Decl. ¶ 30. That’s it. 12
ACLJ has two problems with this explanation. First, it questions how the NSA’s chosen
permutations would have captured any records associated with the government email address of
Cheryl Mills—MillsCD@state.gov. Pl.’s Cross-Mot. at 9–10 (citing PSAMF ¶ 29). 13 Second, it
argues that the agency’s initial search terms certainly would not have captured any records
associated with an email alias that Loretta Lynch used—“Elizabeth Carlisle.” Id. (citing PSAMF
¶ 30).
These are related complaints, but there are key differences between them. Two cases
illuminate these differences. Consider first Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321(D.C. Cir. 1999), which emphasized an agency’s duty “to follow through on obvious leads to
discover requested documents.” Id. at 325. The Coast Guard’s own FOIA search revealed that
12
After identifying the “initial subset of records,” the agency eliminated “[r]ecords that were
outside of the request’s time frame.” Kiyosaki Decl. ¶ 30. It then identified “records in which
one of the officials was a communicant (on the to, from, cc, or bcc line)” and eliminated all
others. Id. And it reviewed the remaining records to identify those that “contained any reference
to any of the 47 listed individuals,” finding none. Id. ACLJ does not challenge these aspects of
the search. See Pl.’s Cross-Mot. at 9–10.
13
ACLJ also questions how the NSA’s initial search terms would have found records associated
with a personal email address that Mills allegedly used for official communications—
Cheryl.mills@gmail.com. Pl.’s Cross-Mot. at 9–10 (citing PSAMF ¶ 29). But the Court finds it
clear that at least one of the agency’s permutations—“cheryl mills”—would have captured this
address. See Kiyosaki Decl. ¶ 30.
23
responsive documents “may be located at [a] federal records center in Georgia,” but it
inexplicably declined to probe this location. Id. at 325, 327. This “positive indication[] of
overlooked materials” made the Coast Guard’s search inadequate. Id. at 327.
At the same time, an agency “is not required to speculate about potential leads.”
Kowalczyk v. DOJ, 73 F.3d 386, 389 (D.C. Cir. 1996). Kowalczyk sent a request to the FBI’s
D.C. headquarters, asking for records associated with “Federal case number 88 CR 701.” Id. at
388. Five months later, he sent an “appeal” letter, which described his original request as one for
records associated with “Criminal Case Number 88 CR 701, in the Eastern District of New
York.” Id. He insisted that the FBI should have searched its New York field office, not just its
D.C. headquarters, but the Circuit rejected this.
The analysis proceeded in two steps. The court first disregarded the plaintiff’s “appeal”
letter, which the FBI had received months after it searched for records responsive to the original
request. Id. Agencies have no “obligation to search anew based upon a subsequent
clarification.” Id. Then, the court found that nothing in the original request (which did not
mention New York) or the FBI’s search would have enabled the agency to determine that the
New York office had responsive records. Id. at 389. The FBI might have “speculated” about
this potential lead, but an agency “is not obliged to look beyond the four corners of the request
for leads.” Id. And “if the requester discovers leads in the documents he receives from the
agency, he may pursue those leads through a second FOIA request.” Id. (emphasis added).
Read together, Valencia-Lucena and Kowalczyk establish complementary principles.
Under Valencia-Lucena, an agency must follow clear leads apparent from the FOIA request or
that it discovers during its search. But under Kowalczyk, an agency is not responsible for leads
that it could not have been expected to discover. And an agency need not search anew based on
24
late-breaking clarifications from a plaintiff; if the plaintiff discovers leads, he can always submit
a new FOIA request.
Here, Valencia-Lucena governs the issue with Mills’s government email and Kowalczyk
governs the issue with Lynch’s alias. In its FOIA request, ACLJ specifically asked the NSA to
search records associated with the government email accounts of the named officials, see NSA
Compl. Ex. A at 3, 8, and the agency does not seriously dispute that it learned of Mills’s
government account during its search, see Mot. Hr’g Tr. at 12, 15–18, 51–52. Yet it is far from
clear that the agency’s initial search terms would have captured any records associated with this
account. The declaration’s mere sampling of permutations by “e.g.,” see Kiyosaki Decl. ¶ 30,
does not cut it. The only permutations it lists, as applied to Mills, are “cheryl mills,” “cmills,”
and “mills cheryl.” Id. Would any of these permutations capture the email address itself
(MillsCD@state.gov)? “MillsCD” (or even just “mills”) is not among the listed permutations.
We are left to speculate. The NSA ultimately admits that it is “not entirely clear from the
declaration” whether its search terms would have picked up the address. See Mot. Hr’g Tr. at 16.
The agency suggests that its permutations would have at least yielded emails that Mills
signed with her name. Id. at 12–13. Even if Mills were the rare official who signed all her
emails, this still does not fly. A search for “cheryl mills” might capture emails containing a
block signature, but it seemingly would not capture emails containing a one-name signature
(“Cheryl”) or initials (“CDM”).
In short, the NSA was aware of Mills’s government email, but it fails to show that it
performed a search reasonably calculated to uncover records associated with that address. This
is barely any improvement on Valencia-Lucena, in which the agency declined to search a records
center in Georgia that it knew likely contained responsive documents. The NSA’s search-term
25
permutations here leave much to be desired—it’s as if the agency went looking for the Georgia
records by searching a location in Alabama. Its search was inadequate in this respect. 14
Lynch’s alias is a different story. The parties agree on the timeline: ACLJ sent its FOIA
request to the NSA in April 2017, and Lynch’s use of the alias was publicly exposed that August.
Id. at 41, 50–51. Unlike with its FOIA request to State in August, ACLJ’s FOIA request to the
NSA did not specifically ask the agency to consider aliases in its search. Compare NSA Compl.
Ex. A at 4–8, with State Compl. Ex. A at 4–5, 7–8, 10–11. So for starters, the “four corners” of
ACLJ’s request did not give the NSA a lead to aliases, for Lynch or anyone else. Kowalczyk, 73
F.3d at 389.
And there is no suggestion that the agency discovered Lynch’s use of the alias during its
search. Nor could the Court reasonably expect this. After all, Lynch was the Attorney General,
not an NSA official. If she had been an NSA employee, a different analysis would apply. But
the inundated staffers in our Nation’s FOIA offices cannot be expected to track the use of aliases
by officials at different agencies. ACLJ suggests that Lynch’s alias was a major media story
when it surfaced, Mot. Hr’g Tr. at 46, but that seems unlikely. It may have been a juicy bit of
news for politicos and pundits, but probably not for FOIA staffers or the rest of America. And as
we know, the D.C. news cycle moves quickly.
14
ACLJ requests documents in the timeframe of January 20, 2016, to January 20, 2017, NSA
Compl. Ex. A. at 3, yet based on public record, Mills left the State Department in 2013. So it
seems possible the NSA will not find any records associated with Mills’s government email
account in the 2016–2017 timeframe, even if the agency uses a broader range of initial search
terms. But the Government has nowhere offered this line of reasoning as a basis to uphold the
adequacy of the NSA’s search about Mills. See Defs.’ Mot. at 25–26, ECF No. 37; Defs.’ Reply
at 16–18, ECF No. 41; Mot. Hr’g Tr. at 11–19, 51–52. The Court will not sua sponte uphold the
adequacy of the search on a ground the agency has not proposed.
26
In Kowalczyk, the FBI at least had enough information to speculate that its New York
office had relevant records. 73 F.3d at 389. Here, because the NSA had no reason to be aware
of Lynch’s alias, it had no basis even to speculate about that potential lead. More, Kowalczyk
lost despite mentioning New York in his follow-up “appeal” letter. Id. at 388. Here, ACLJ
apparently did not even alert the NSA when it learned of Lynch’s alias. See Mot. Hr’g Tr. at 19–
20, 42, 51. Having discovered this lead after sending its original request, ACLJ’s path forward
was—and remains—clear: send a second FOIA request. See Kowalczyk, 73 F.3d at 389.
C.
State did not assert a Glomar response for Parts 3 and 6 of ACLJ’s request. As narrowed,
these parts seek communications between Power and any NSA employee referencing Trump or
the 46 others, as well as any records “sent [or] received by Power” referencing these individuals.
Stein Decl. ¶ 6. After a search, State released 243 records in whole or in part, “with redactions
based on FOIA Exemptions 1, 5, and 6.” Id. ¶ 12. It also withheld nine documents in full. Id.
ACLJ contests the agency’s partial withholding of 15 documents under Exemption 5. Id. ¶ 13.
Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). It “incorporates the privileges that the Government may claim when litigating
against a private party,” including the deliberative process privilege and attorney-client privilege.
Abtew v. DHS, 808 F.3d 895, 898 (D.C. Cir. 2015).
To qualify for the deliberative process privilege, a document must be both predecisional
and deliberative. Id. A document is “predecisional” if it precedes, in time, the decision to which
it relates. Id. A document is “deliberative” if it reflects the give-and-take by which a decision is
27
made. Id. at 899. The privilege encompasses factual material if it is “inextricably intertwined”
with deliberative material. Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 372 (D.C. Cir. 2005).
The privilege generally protects “advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.”
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). This protection “rests on the obvious
realization that officials will not communicate candidly among themselves if each remark is a
potential item of discovery and front page news, and its object is to enhance the quality of
agency decisions by protecting open and frank discussions among those who make them.” Dep’t
of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (cleaned up).
The attorney-client privilege similarly encourages clients “to be as open and honest as
possible with attorneys.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C.
Cir. 1980). The privilege is “not limited to communications made in the context of litigation or
even a specific dispute, but extends to all situations in which an attorney’s counsel is sought on a
legal matter.” Id. It also protects “an attorney’s written communications to a client.” Id.The 15 documents at issue—all withheld in part—fall into four categories:
1. Email chains discussing substantive edits and comments for speeches by then-
Ambassador Power (12 documents; Vaughn Items 1, 2, 3, 4, and 6);
2. An email chain containing a discussion of line edits and the content of a draft
memorandum for the U.N. Secretary-General (one document; Vaughn Item 5);
3. An email chain discussing a human resources matter, strategy about communications
with Congress, and the substance of those policy deliberations with Members of
Congress (one document; Vaughn Item 7); and
28
4. An email chain discussing potential courses of action related to the protests at Standing
Rock Indian Reservation (one document; Vaughn Item 8).
Stein Decl. ¶ 26.
For all these documents, State invokes the deliberative process privilege. Id. ¶¶ 27–29.
For certain redactions in the documents comprising Vaughn Items 1 and 2, State also invokes the
attorney-client privilege. Id. ¶ 32. The Court finds that State’s declarations and Vaughn Index
adequately explain why all challenged documents qualify for these privileges. Id. ¶¶ 24–33;
Second Stein Decl. ¶¶ 6–24, ECF No. 41-2; Stein Decl. Ex. A at 13–18, ECF No. 37-3. And, for
the most part, ACLJ does not contest these explanations. See Pl.’s Cross-Mot. at 10–15; Pl.’s
Reply at 13–15. It does so only for a few documents, but its arguments are unavailing.
Nos. C06497371 and C06497673 (two of the five documents in Vaughn Item 1): These
documents, both dated May 19, 2016, are “email chains [that] discuss substantive edits and
comments on the content of [Power’s] upcoming commencement address at Yale University
Class Day on May 22, 2016.” Stein Decl. Ex. A at 13. State asserts that the withheld material
“is pre-decisional and deliberative with respect to a final determination on the content and
framing of the proposed speech.” Id.
ACLJ suggests the deliberative process privilege does not apply to these emails because
they do not discuss “the formation of the speech,” but rather “contain the subject line, ‘Re: How
much grief,’ and appear to discuss a current event.” Pl.’s Cross-Mot. at 13. In response, State
explains that this subject line “relates to the content of [Power’s] speech at Yale.” Second Stein
Decl. ¶ 9. Power was asking the recipient “‘[h]ow much grief’ the Secretary of State received
for a Trump reference in his speech at Northeastern, as she [was] ‘trying to thread [the] needle’
with her upcoming Yale speech.” Id. (first and third alterations in original). The recipient
29
replied by providing “feedback regarding possible approaches to the speech.” Id. Copies of
these redacted emails are in the record, and they bear out the agency’s explanation. Southerland
Decl Ex. 1 at 3–4, ECF No. 39-2; Second Stein Decl. Ex. 1 at 20, ECF No. 41-2. ACLJ does not
press the point in its reply brief. See Pl.’s Reply at 13–15.
No. C06497566 (Vaughn Item 3): This document is an “email chain [that] contains
internal deliberations regarding substantive edits and comments on [Power’s] speech upon
receiving the Henry A. Kissinger Prize for her work in her position as U.S. Ambassador to the
United Nations.” Stein Decl. Ex. A at 15. “These edits and comments relate to the version of
the speech that was to be published after she had given it at the ceremony,” id. (emphasis added),
and ACLJ believes this makes the document post-decisional, Pl.’s Cross-Mot. at 14.
Not so. ACLJ relies on In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), which
observes that the deliberative process privilege “does not shield documents that simply state or
explain a decision the government has already made.” Id. at 737. But the email chain does not
“state or explain a decision . . . already made.”
Power gave a speech at a ceremony, and the chain contains edits and comments on “the
version of the speech that was to be published after she had given it at the ceremony”—so a
different version of the speech, not the one already given. Stein Decl. Ex. A at 15. The chain
includes “recommendations for revisions to the original address,” so it reflects deliberations
about the not-yet-published version. Id. After the ceremony speech, Power “was substantially
redrafting it for a different format (i.e., in text rather than in person) and a different audience
(i.e., the public rather than the audience at the . . . ceremony).” Second Stein Decl. ¶ 13. Once
again, ACLJ does not press the point. See Pl.’s Reply at 13–15.
30
No. C06497581 (Vaughn Item 5): This document is an “email chain [that] contains
discussion of line edits and the content of a draft memorandum for U.N. Secretary-General
Antonio Guterres.” Stein Decl. Ex. A at 16. ACLJ’s objection here, however, concerns not this
email chain but an attachment that State withheld in its entirety—the “Guterres Transition
Memo _ January 2.docx.” Pl.’s Cross-Mot. at 14.
State describes this attachment as “a draft transition memorandum for the incoming U.N.
Secretary-General.” Second Stein Decl. ¶ 19. It is deliberative, the agency says, because “it
makes proposals and recommendations as to the substance of the memorandum.” Id. ACLJ
retorts that the attachment’s status as a draft “does not make all content within [it] deliberative,”
but elaborates no further. Pl.’s Reply at 14. State has adequately explained why the attachment
is deliberative, see Second Stein Decl. ¶¶ 19–20, and ACLJ’s contrary assertion is merely
unsupported speculation. 15
No. C06647997 (Vaughn Item 7): This document is an “email chain [that] discusses a
human resources matter, strategy regarding communications with Congress, and the substance of
those policy deliberations with Members of Congress.” Stein Decl. Ex. A at 17. These emails
issued on August 2 and August 3, 2016, and they “pre-date[] the outreach to Congress.” Id.
ACLJ suggests that State’s failure to identify when “the outreach to Congress” occurred
casts doubt on whether the email chain is predecisional. Pl.’s Cross-Mot. at 14. In its
supplemental declaration, the agency explains that the withheld material “includes deliberations
among multiple State officials regarding strategy for Legislative Branch outreach, including to
15
After briefing was complete, the Government clarified that State also withheld this attachment
in full under Exemption 1. Notice of Add. Basis for Withholding at 1, ECF No. 45. Because the
Court upholds the withholding of this attachment under Exemption 5, the Court need not
consider whether Exemption 1 also applies.
31
multiple senators, congressmen, committees, and staff, in August 2016 regarding a possible U.N.
resolution on nuclear testing.” Second Stein Decl. ¶ 21. It reiterates that these deliberations
“pre-date[] the outreach.” Id. While exact dates for the “outreach” would be preferable, State’s
explanation is still adequate. ACLJ provides no concrete basis for doubting that deliberations
among State officials on August 2 and August 3 predated the “August 2016” outreach to
Congress. Yet again, ACLJ does not press the point in its reply brief. See Pl.’s Reply at 13–15.
ACLJ also notes in passing that the content withheld in this email chain includes “a
readout of [a] Moniz-Corker call,” but it does not elaborate on why it thinks this withholding is
improper. Pl.’s Cross-Mot. at 14. State explains that the readout is “a description of
communications with Senator Bob Corker regarding the possible U.N. resolution . . . including
discussion of policy issues and priorities around the resolution.” Second Stein Decl. ¶ 21. It is
deliberative, the agency says, because “it provides opinions on and analysis of potential U.S.
courses of actions with respect to the possible U.N. resolution, and it distills the conversation
into the points the author considered most important for the recipients of the email.” Id. This
explanation is adequate. See Montrose Chem. Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974).
And ACLJ provides no reason to question it. See Pl.’s Cross-Mot. at 14; Pl.’s Reply at 15.
That concludes ACLJ’s specific objections to State’s withholdings. ACLJ next argues—
for all challenged withholdings—that State has shown no “foreseeable harm” that would result
from disclosure. Pl.’s Cross-Mot. at 15–16. It cites a recent addition to FOIA, which provides
that “[a]n agency shall . . . withhold information . . . only if . . . (I) the agency reasonably
foresees that disclosure would harm an interest protected by an exemption described in
subsection (b) . . . or . . . (II) the disclosure is prohibited by law.” FOIA Improvement Act of
32
2016, Pub. L. No. 114-185, § 2(1)(D), 130 Stat. 538, 539 (codified at 5 U.S.C. § 552(a)(8)).
State insists it has met this requirement, and the Court agrees.
The agency explains that disclosure of the material withheld—“material containing the
details of internal discussions held in the course of formulating a policy or other forms of
action”—“could reasonably be expected to chill the open and frank exchange of comments,
recommendations, and opinions that occurs between Department officials about sensitive topics.”
Stein Decl. ¶ 28. This, in turn, “would severely hamper the ability of responsible Department
officials to formulate and carry out Executive Branch programs.” Id.The agency’s supplemental declaration goes into greater detail. For example, it notes that
Vaughn Items 1, 2, 3, 4, and 6 encompass documents in which State officials “deliberate not only
the framing of the Department’s position on . . . substantive issues, but [also] the substantive
issues themselves,” including a “refugee policy” and “efforts to curb the Russian threat.” Second
Stein Decl. ¶ 16. If these deliberations were disclosed, officials “would be loath to provide the
frank assessments or controversial opinions that result in the most effective and informed
decision-making, particularly where the public positions relate to high-profile issues.” Id. ¶ 17.
The foreseeable harm from disclosure is “particularly heightened in the context of foreign
affairs, where the U.S. Government’s official position” implicates “relationships with other
countries.” Id. Release of “non-final recommendations or opinions on foreign affairs” thus
“may cause international public confusion about the United States’ stance on these issues.” Id.
Similarly, “release of these preliminary comments . . . could cause harm by providing the public
with an erroneous understanding of agency decision-making at the U.S. Mission to the United
Nations and among senior Executive Branch officials.” Id. ¶ 18.
33
The supplemental declaration goes into similar detail when explaining why disclosure of
Vaughn Items 5, 7, and 8 would pose harm. See id. ¶¶ 20, 22–24. The Court finds that, by these
detailed explanations, State has fulfilled the terms of 5 U.S.C. § 552(a)(8). After all, this
provision requires only that the agency “reasonably foresee[] that disclosure would harm an
interest protected by an exemption described in subsection (b).” 5 U.S.C. § 552(a)(8)(A)(i)(I).
State’s declarations provide a reasonable basis to think that disclosure of the withheld materials
would harm several interests that Exemption 5 protects, such as encouraging candid discussions
and guarding against premature disclosure and public confusion. See Sears, Roebuck & Co., 421
U.S. at 151–53; Coastal States Gas Corp., 617 F.2d at 866.
To be sure, ever since the FOIA Improvement Act was enacted, a debate has raged about
what showing the Government must make under § 552(a)(8)(A)(i)(I). See, e.g., Cause of Action
Inst. v. DOJ, 330 F. Supp. 3d 336, 354–55 (D.D.C. 2018). The parties continue that debate, with
ACLJ arguing that the statute requires a heightened showing and the Government disagreeing.
Compare Pl.’s Cross-Mot. at 15–16, with Defs.’ Reply at 26–27, ECF No. 41. The D.C. Circuit
has not addressed this debate yet, and the Court need not resolve it either, for “the Government
prevails under either approach.” Cause of Action Inst., 330 F. Supp. 3d at 355. State’s
explanation of “foreseeable harm” is like—if not more detailed than—other explanations that
have been upheld. See id.; Machado Amadis v. DOJ, 388 F. Supp. 3d 1, 20 (D.D.C. 2019).
ACLJ has one final argument. It urges the Court to reject State’s efforts at segregating
non-exempt from exempt material for the 15 challenged documents. Pl.’s Cross-Mot. at 11–13.
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). The deliberative process privilege ordinarily does not shield factual material, as
34
distinct from “opinion” material. See Coastal States Gas Corp., 617 F.2d at 867. So, when
invoking this privilege, an agency must segregate and disclose any factual information not
“inextricably intertwined” with the deliberative material. See Judicial Watch, Inc., 432 F.3d at
372.
ACLJ pounces on this rule and complains that State “conveniently fails to detail whether
any information it has withheld is factual, as opposed to opinion.” Pl.’s Cross-Mot. at 11. But
this misses the mark. As the Government points out, there is no requirement that an agency
“attest to a negative,” that it is not withholding non-exempt material. Defs.’ Reply at 19.
Instead, State must “demonstrate that all reasonably segregable material has been released.”
Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir. 2002). To show this, agencies can rely on the
combination of its declarations and Vaughn Index. Id. And they “are entitled to a presumption
that they complied with the obligation to disclose reasonably segregable material.” Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). To overcome this presumption, the
requestor must provide a “quantum of evidence.” Id.State notes that its withholdings “occasionally contain[] selected factual material
intertwined with opinion.” Stein Decl. ¶ 31. The agency “has carefully reviewed all of the
[challenged] documents . . . and has segregated exempt from non-exempt information where
reasonably possible.” Id. ¶ 34. For each document, it “conducted a line-by-line review . . . and
determined that there is no additional meaningful non-exempt information that can be reasonably
segregated and released.” Stein Decl. Ex. A at 14–18. After its initial review, the agency made a
“supplemental production” in which it “released additional information in 11 documents
previously released in part and in 4 documents previously withheld in full.” Stein Decl. ¶¶ 11,
34. This supplemental production involved some documents that ACLJ challenges. Second
35
Stein Decl. ¶¶ 9–10. “Based on these multiple reviews, [State] determined that no further
meaningful information can be segregated without disclosing information warranting protection
under the law.” Stein Decl. ¶ 34; see also Second Stein Decl. ¶ 25.
This explanation provides “reasonable specificity” under the D.C. Circuit’s precedents.
See Loving v. DOD, 550 F.3d 32, 41 (D.C. Cir. 2008); Johnson, 310 F.3d at 776. ACLJ provides
no “quantum of evidence” to overcome the presumption that State complied with its obligation.
It relies solely on speculation, claiming that “federal agencies, including the State Department,
are notorious for attempting to shield non-exempt factual information from disclosure under the
guise that it is deliberative.” Pl.’s Cross-Mot. at 12. More, the agency’s supplemental release of
once withheld information cuts in its favor. Cf. Military Audit Project, 656 F.2d at 754 (“The
release of over two thousand pages of documents after a thorough review suggests to us a
stronger, rather than a weaker, basis for the classification of those documents still withheld.”).
Finally, for some documents, ACLJ objects to the withholding of search terms and single
words. See Pl.’s Cross-Mot. at 13–15 (referencing Nos. C06497371, C06497351, C06497352,
C06497581, and C06647997). But as State explains in reply, it did disclose most of these terms
and words. See Defs.’ Reply at 21 & n.7, 22, 24; Second Stein Decl. ¶¶ 9–10, 19; Second Stein
Decl. Ex. 1 at 16–20. And in any event, an agency need not “commit significant time and
resources to the separation of disjointed words, phrases, or even sentences which taken
separately or together have minimal or no information content.” Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977). State says that the isolated terms it
redacted are inextricably intertwined with exempt material and provide no meaningful content.
See Defs.’ Reply at 25; Second Stein Decl. ¶ 21. ACLJ provides no evidence casting doubt on
these representations. See Pl.’s Reply at 13–15.
36
In sum, the Court rejects ACLJ’s challenges to State’s Exemption 5 withholdings.
IV.
For these reasons, the Court will grant in part and deny in part the Government’s motion
for summary judgment and ACLJ’s cross-motion. A separate Order will issue.
2020.07.24
15:05:57 -04'00'
Dated: July 24, 2020 TREVOR N. McFADDEN, U.S.D.J.
37