Project for Priv. & Surveillance Accountability v. NSA, No. 22-1812, 2024 WL 68244 (D.D.C. Jan. 5, 2024) (Contreras, J.)

Project for Priv. & Surveillance Accountability v. NSA, No. 22-1812, 2024 WL 68244 (D.D.C. Jan. 5, 2024) (Contreras, J.)

Re:  Request for records concerning intelligence community’s acquisition or use of commercially available information regarding specific current and former members of Congress

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court relates that “[plaintiff] first contends that, before issuing a Glomar response, each Defendant should be required to conduct a search for responsive records.”  “The premise of [plaintiff’s] argument is that requiring Defendants to execute an internal search for documents would not require Defendants to disclose whether such records exist.”  “In [plaintiff’s] view, Defendants could conduct a search ‘within the secrecy of their own siloes’ and then, once that search is completed, issue a response refusing to confirm or deny the existence of such records.”  The court finds that “[w]hatever the theoretical merits of [plaintiff’s] position, it is a stance that is directly contrary to existing law.”  “D.C. Circuit precedent on the point is explicit:  ‘an agency need not search its records before invoking Glomar.’”  “[I]t ‘would be a meaningless – not to mention costly – exercise’ to require the agency to conduct a search for records only to have the agency later disclaim the existence or nonexistence of those records.”

• Exemption 1, Glomar Response; Exemption 3:  The court relates that “[b]efore analyzing whether Defendants’ Glomar responses are justified on their merits, it is necessary to distinguish between the types of records that may be responsive to [plaintiff’s] FOIA request.”  “[Plaintiff’s] FOIA request is broad:  it seeks “‘[a]ll documents, reports, memoranda, or communications regarding the obtaining, by . . . the intelligence community [of commercially available information] regarding’ specific current and former members of Congress.”  “As will be explained in more detail below, [plaintiff’s] request encompasses both ‘operational documents’ and ‘policy documents.’”  “The first category includes records that reveal information relating to the intelligence community’s contemplated or actual collection, purchase, use, or analysis of commercially available information regarding the identified members of Congress.”  “The second category – the so-called ‘policy documents’ – include records that discuss the intelligence community’s potential collection of commercially available information on the listed individuals as a matter of legislative interest, policy, or oversight.”  “In issuing their Glomar responses, Defendants essentially asserted that FOIA Exemptions 1 and 3 prevented them from acknowledging the existence of both categories of records.”  “The Court finds that Defendants are correct insofar as they cite those exemptions as justification for refusing to acknowledge the existence of ‘operational documents.’”  “Defendants have not, however, plausibly explained why Exemptions 1 and 3 prohibit them from acknowledging the existence of ‘policy documents.’”  “Accordingly, the Court finds that Defendants must conduct a search for ‘policy documents’ in their possession.”  “After conducting such a search, Defendants will have an opportunity to assert a new Glomar response to the extent such a response is warranted, and to withhold any information that is protected by a relevant FOIA exemption.”
  
  Regarding “‘operational documents,’” the court relates that “[h]ere, Defendants assert that the existence or nonexistence of the information [plaintiff] seeks is classified pursuant to Executive Order 13,526 (‘the Order’).”  “As relevant here, the Order provides that information may be classified only if:  (1) an original classification authority classifies the information; (2) the information is under the control of the United States government; (3) the information pertains to one or more of the categories of information listed in section 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 national security, and the authority is able to identify or describe the damage.”  The court finds that “Defendants have plausibly explained that each of those four conditions is satisfied here.”  “With respect to the first condition, each Agency submitted an affidavit from an individual possessing original classification authority stating that the information is properly classified.”  “As for the second condition, [plaintiff] does not contest that the information is under the control of the United States government.”  “That leads to the third condition, which requires that the information ‘pertain to at least one of eight subject-matter classification categories’ described in section 1.4 of the Order.”  “One of the categories described in that section ‘includes information pertaining to intelligence activities, sources, or methods.’”  “All of the affiants state that the information at issue pertains to intelligence activities, sources, or methods.”  “Finally, Defendants’ declarants describe in detail the various ways in which disclosure of the information at issue could be expected to result in damage to national security.”  “For instance, multiple affiants state that acknowledging or disavowing the existence of responsive records would reveal information about whether the Agencies gathered information on the individuals identified in [plaintiff’s] request, and, in doing so, would disclose sensitive information regarding the Agencies’ intelligence-gathering priorities and activities.”  “Relatedly, the declarants state that such disclosure could reveal the Agencies’ interest in a particular individual, while simultaneously alerting that individual of the types of ‘intelligence sources or methods being employed . . . to collect information on them.’”  “And more generally speaking, the affiants describe how disclosure of the information could harm national security by revealing information regarding the Agencies’ technical capabilities and limitations – information that would, in turn, make it easier for adversaries or individuals to avoid data collection efforts in the future.”  “In the same vein, the declarants express concern that disclosure could also reveal information about how the Agencies do – or do not – collect information, thereby aiding adversaries in their measures to protect information from collection.”  “[A]fter thoroughly examining the declarations submitted by the Agencies, the Court finds that the information is classified pursuant to Executive Order 13,526 and properly falls within FOIA Exemption 1.”  “The Court further finds that Defendants have offered a logical and plausible explanation for why the ‘unauthorized disclosure [of the information] would damage national security and compromise intelligence sources and methods,’ . . . at least insofar as ‘operational documents’ are concerned.”  “As a result, the Court concludes that Defendants’ Glomar responses properly invoke Exemption 1 as a basis on which to neither confirm nor deny the existence of ‘operational documents.’”
  
  The court relates that “[plaintiff] . . . argues that Defendants may not plausibly invoke Exemption 1 because various arms of the intelligence community (including some of the Agencies named in this case) have publicly acknowledged that they obtain commercially available information from third-party vendors.”  The court finds that “[plaintiff’s] argument misses the mark.”  “Most fundamentally, [plaintiff] does not grapple with Defendants’ contention that acknowledging the existence of the requested information would reveal U.S. intelligence agencies’ interest in – or collection of information on – particular individuals.”  “The evidence cited by [plaintiff] tends only to show that Defendants have acknowledged that the intelligence community generally collects and uses commercially available information.”  “[Plaintiff] cites no evidence tending to show that any intelligence agencies have admitted to obtaining commercially available information on the specific individuals named in [plaintiff’s] FOIA request.”
  
  “[A]ll Defendants except NSD also invoke FOIA Exemption 3 as a basis for their Glomar responses.”  “The Agencies that invoke Exemption 3 first point to the National Security Act of 1947, 50 U.S.C. § 3024(i), to justify their Glomar responses.”  “As relevant here, the National Security Act requires the Director of National Intelligence to ‘protect intelligence sources and methods.’”  “The statute also “prohibits the unauthorized disclosure of such sources and methods.’”  “The D.C. Circuit has explained ‘that the mere acknowledgment of intelligence sources and methods may implicate the protections of the Act.’”  “[Plaintiff] does not dispute – nor could it – that the National Security Act qualifies as ‘a valid Exemption 3 [withholding] statute.’”  “And as explained above, the information sought by [plaintiff] plainly falls within the statute.”  “Requiring Defendants to acknowledge or deny the existence of the requested information would be to require them to reveal potentially sensitive information regarding intelligence sources and methods.”  “Because ‘[d]ivulging such information is “specifically exempted” under the National Security Act,’ Defendants have logically and plausibly explained their reliance on Exemption 3.”
  
  However, the court finds that “‘an agency may issue a blanket Glomar response . . . only when “the circumstances justify a Glomar response” for all categories of responsive records.’”  “[H]ere, [plaintiff’s] FOIA request encompasses a category of records that are not covered by FOIA Exemptions 1 or 3.”  “[Plaintiff] seeks ‘[a]ll documents, reports, memoranda, or communications regarding the obtaining, by . . . the intelligence community [of commercially available information] regarding’ specific current and former members of Congress.”  “[Plaintiff] correctly notes that the term ‘regarding’ gives the request a broad scope.”  “So interpreted, it does not require immense creativity to imagine records that would fit within the scope of [plaintiff’s] request without implicating the national security concerns raised by Defendants.”  “For example, a letter from a member of Congress to the NSA inquiring as to whether the NSA had purchased commercially available information on any of the listed Senators or Congresspeople would fall within the scope of [plaintiff’s] request while simultaneously not revealing whether the NSA had, in fact, purchased such information or whether the NSA had a particular interest in surveilling the individual.”  “In other words, it is difficult to see how a document such as this would reveal sensitive information about Defendants’ intelligence activities, sources, or methods.”  “In sum, ‘[b]ecause there exists a category of responsive documents for which a Glomar response would be unwarranted, [Defendants’] assertion of a blanket Glomar response . . . cannot be sustained.’”  “Instead, Defendants must conduct a search for ‘policy documents.’”  “To the extent that that search uncovers communications that reveal either classified or sensitive national security information, Defendants may, of course, either renew their Glomar-based objections or withhold documents under any relevant FOIA exemptions.”