Competitive Enter. Inst. v. NSA, No. 14-975, 2015 WL 151465 (D.D.C. Jan. 13, 2015) (Boasberg, J.)

Competitive Enter. Inst. v. NSA, No. 14-975, 2015 WL 151465 (D.D.C. Jan. 13, 2015) (Boasberg, J.)

Re: Request for EPA officials' phone calls, e-mails, and text messages

Disposition: Granting defendant's motion for summary judgment

• Waiver:  "[T]he Court . . . grant[s] the NSA's Motion for Summary Judgment."  As background, the court explains that, "dissatisfied with [the] more traditional approach[ of filing FOIA requests with EPA], Plaintiffs now attempt a novel and inventive gambit to obtain these records—they demand them from the National Security Agency."  "After all, doesn't the NSA have everyone's phone, e-mail, and text-message records?"  The court rejects plaintiff’s argument that the NSA waived its ability to invoke a Glomar  response.  The court first notes that "[p]laintiff[] in this case must . . . point to specific information in the public domain establishing that the NSA has metadata records for [the EPA officials'] accounts."  The court finds that "[t]his they have not done."  "To begin, [plaintiff] fail[s] to point to any source suggesting that the government engages in the widespread collection of Americans' e-mail and text-message records, making the agency's Glomar response appropriate at least with respect to those."  "Second, on the issue of phone records, the sources that they provide do not give any indication that the government collects metadata for all U.S. phone customers or even the subset of all Verizon Wireless users."  "As such, they do not show that the government has the specific records they seek."  "Third, although general information about the program has been released, Plaintiffs are simply incorrect that there can be no further harm from acknowledging the existence of the requested records."  The court agrees with "the agency's description of the potential harm from further disclosures," specifically, that "were the agency required to confirm or deny the existence of records for specific individuals, it would begin to sketch the contours of the program, including, for example, which providers turn over data and whether the data for those providers is complete."