WEEK OF MAY 7-11

1. Elec. Priv. Info. Ctr. v. NSA, No. 11-5233, 2012 WL 1654943 (D.C. Cir. May 11, 2012) (Brown, J.)

Re:  Request for any communications allegedly exchanged between the NSA and Google regarding encryption and cybersecurity

Holding:  Affirming the district court's grant of summary judgment to NSA on the basis that it properly asserted the Glomar response in conjunction with Exemption 3

• Exemption 3/Glomar:  The D.C. Circuit affirms the district court's decision that found that NSA properly asserted the Glomar response in conjunction with Exemption 3 and Section 6 of the National Security Act, which protects information pertaining to NSA's organizations, functions, or activities.  At the outset, the court notes that "[b]ecause Section 6 of the National Security Agency Act 'is a statute qualifying under Exemption 3,' . . . the only question is whether the withheld material satisfies the criteria of the exemption statute, i.e., whether acknowledging the existence or nonexistence of the requested material would reveal a function or an activity of the NSA."  The D.C. Circuit rejects plaintiff's argument that the NSA Act would not protect "unsolicited communications from Google to NSA."  Rather, the D.C. Circuit agrees with NSA that "any information pertaining to the relationship between Google and NSA would reveal protected information about NSA's implementation of its Information Assurance mission."  The D.C. Circuit determines that "[t]he existence of a relationship or communications between the NSA and any private company certainly constitutes an 'activity' of the agency subject to protection under Section 6."  Moreover, the court finds that "[e]ven if [plaintiff] is correct that NSA possesses records revealing information only about Google, those records, if maintained by the agency, are evidence of some type of interaction between the two entities, and thus still constitute an NSA 'activity' undertaken as part of its Information Assurance mission, a primary 'function' of the NSA."  The D.C. Circuit further notes that if such information were disclosed, private entities "might hesitate or decline to contact the agency, thereby hindering its Information Assurance mission."  With respect to plaintiff's challenge to the adequacy of NSA's declaration, the D.C. Circuit finds that " NSA's affidavit describes which functions and activities would be implicated by disclosure, as well as how acknowledging the existence or nonexistence of requested records would reveal those functions or activities."  The D.C. Circuit dismisses plaintiff's contention that "the same logic that requires secrecy in intelligence gathering does not apply to the NSA's Information Assurance mission because it is public knowledge that the U.S. government uses Google applications and that the NSA is investigating security vulnerabilities in Google's commercial products."  Rather, the D.C. Circuit declines to draw distinctions between NSA's various missions and notes that Sections 6 "broadly exempts any information pertaining to the agency's 'activities' or 'functions.'" 

• Waiver:  The D.C. Circuit rules that NSA did not waive protection under FOIA by disclosing "basic information" about its information assurance activities.  Further, the D.C. Circuit holds that plaintiff "has failed to meet its burden" of showing that prior disclosures duplicate what is being withheld, "because its blanket request for '[a]ll records of communication between NSA and Google concerning Gmail' covers a substantially broader swath of information than what NSA has voluntarily published on its website."  The D.C. Circuit finds that "[g]eneral security guidance, even involving recommended security settings for Gmail, does not 'appear to duplicate' private communications between NSA and Google; it does not even disclose whether the two entities have engaged in such communications." 

• Segregability:  Contrary to plaintiff's arguments, the D.C. Circuit concludes that because NSA's affidavit is "sufficient to support [its] Glomar response, requiring NSA to conduct a search and segregability analysis would be a meaningless – not to mention costly – exercise."  In contrast to cases where an agency asserting the Glomar response has failed to establish that all the records, if they exist, would be protected by a certain exemption, the D.C. Circuit finds that here "it is apparent that any response to [plaintiff's] FOIA request might reveal whether NSA did or did not consider a partial cybersecurity incident, or the security settings in particular commercial technologies, to be a potential threat to U.S. Government information systems."  The D.C. Circuit determines that "[a]ny such threat assessment, as well as any ensuing action or inaction, implicates an undisputed NSA 'function' – its Information Assurance mission – and thus falls with the broad ambit of Section 6 of the National Security Agency Act."   

1.  Sensor Sys. Support, Inc. v. FAA, No. 10-262, 2012 U.S. Dist. LEXIS 66061 (D.N.H. May 11, 2012) (Barbadoro, J.)

Re:  Request for all correspondence between an FAA program manager pertaining to plaintiff and an individual; at issue are twenty-six documents for which the FAA asserted Exemption 5

Holding:  Granting the FAA's motion for summary judgment with respect to twenty-five records for which the agency asserted Exemption 5; ordering the FAA to submit one record to the court for in camera inspection; and denying, without prejudice, plaintiff's request for attorney's fees

• Exemption 5 (deliberative process privilege):  The court concludes that, with one exception, the FAA properly asserted the deliberative process privilege to withhold "email exchanges pertaining to implementation of the agency's December 2007 agreement with the Government of Bermuda" involving upgrading an airport radar system.  As an preliminary matter, the court rejects plaintiff's assertion that the FAA' s submissions "are suspect on their faces because the FAA's incremental release of previously withheld documents demonstrates a lack of good faith."  Rather, the court observes that "[c]ourts have 'emphatically reject[ed]' the notion that an agency's disclosure of documents that it had previously withheld renders its affidavits suspect.'"  In terms of the withheld emails, the court finds that the FAA's "description clearly identifies the creation of a business development office in Bermuda as the contemplated agency decision" and explains how the documents express "'the mental processes of the agency in considering alternative course of action prior to settling on a final plan,' . . . as opposed to the agency's official policy on the subject."  However, the court concludes that, with respect to one document, the FAA has not provided sufficient information to allow the court "to determine whether the email predated any sort of contemplated agency decision or action," but rather finds that the agency's "descriptions of the document merely suggest that the redactions concern a subordinate's account of past events to his superior."  Because this is the second time that the agency has failed to establish that the deliberative process privilege applies, the court orders the FAA to submit the record for in camera review.  

• Exemption 5 (attorney-client privilege):  The court concludes that the attorney-client privilege was properly applied to an email which "was sent [by an FAA employee] to an agency attorney for the purpose of obtaining legal advice" and was not shared with third parties.

2. Nat'l Sec. Archive v. CIA, No. 11-724, 2012 WL 1630525 (D.D.C. May 10, 2012) (Kessler, J.)

Re:  Request for records pertaining to the CIA's internal investigation of the Bay of Pigs Operation; at issue is Volume V of a history of the invasion, which the CIA withheld in full

Holding:  Granting the CIA's motion for summary judgment on the basis that it properly invoked Exemption 5 to withhold in full a draft volume documenting the agency's internal investigations into the Bay of Pigs Operation

• Exemption 5 (deliberative process privilege):  The court holds that the CIA properly withheld in full, pursuant to the deliberative process privilege, Volume V of the CIA's history of Bay of Pigs Operation.  Citing Pfeiffer v. CIA, a 1989 decision by another D.C. district court that concluded that Volume V was properly withheld under Exemption 5, the court notes that it "finds no reason to depart from [the other district court's earlier] sound conclusion."  For one, the court determines that "Volume V was undoubtedly 'generated before the adoption of an agency policy,' and is therefore predecisional."  The court finds that "Volume V represents only the first step in a multi-step process of creating an official CIA history," and notes that it "did not even pass through the first stage of a multilayer review process."  Further, "Volume V represents a proposal by a subordinate member of the [agency's] history staff – a proposal which was rejected by the Chief Historian due to significant deficiencies" and, additionally, "was rejected for inclusion in the final publication and remained a draft."  Accordingly, the court concludes that "Volume V 'reflect[s] the personal opinions of the writer rather than the policy of the agency.'"  Additionally, the court finds that "the CIA has made a strong and specific showing that disclosure of Volume V would harm the deliberative process" by possibly "caus[ing] staff historians not 'to reach – or even propose – judgments that may be critical of the Agency's performance or otherwise unpopular within the Agency.'"  In addition, "[d]isclosure of a draft history would risk public release of inaccurate historical information" and "'would have a chilling effect on CIA's current historians who would henceforth be inhibited from trying out innovative, unorthodox or unpopular interpretations in a draft manuscript.'"  Contrary to plaintiff's arguments, the court finds that, in this case, "the passage of time has not affected the rationale for invoking Exemption 5."  The court concludes that "[g]iven the fact that, as an agency, the CIA operates in secrecy and faces relatively little public scrutiny in its operations for that reason, and given the importance of the activities and operations it undertakes, it is particularly important that in-house historians – who do have the facts – feel free to present their views, theories, and critiques of the Agency's actions." 

3. Kim v. U.S. Dep't of the Interior, No. 10-1552, 2012 WL 1587215 (D.D.C. May 7, 2012) (Walton, J.)

Re:  Request to the Department of Interior for all documents generated by the federal ombudsman's office in Saipan, Commonwealth of the Northern Mariana Islands, connected with a census Interior conducted

Holding:  Granting defendant's motion for summary judgment on the basis that it conducted an adequate search for responsive records; determining that defendant properly asserted Exemption 6 where plaintiff agreed to the redactions of individuals' birth dates and there was no public interest asserted; and concluding that destruction of certain records prior to the FOIA request did not evidence bad faith and do not merit any remedial action by the court

• Procedural/destruction of records:  The court finds that "defendant had no duty to preserve the documents prior to the request that was made for their production," where "plaintiff has offered no support for the suggestion that the defendant absolutely knew that a FOIA request would be made for production of [certain] census forms."  Noting that plaintiff's request for the census in-take forms was made nearly five months after they were shredded, the court concludes that their destruction "was not done in bad faith and therefore does not merit any remedial action being ordered or preclude the Court from finding that the defendant conducted a reasonable search in the absence of such an action." 

• Adequacy of search:  The court holds that "defendant[,] having produced to plaintiff the documents available to it at the time of the request, has satisfied its burden of establishing the good faith and reasonableness of its search."  Finding persuasive defendant's argument that "plaintiff's request was very narrow and specific," the court finds that the agency's destruction of responsive census in-take forms prior to plaintiff's request was not as plaintiff alleged, "'an enormous change in circumstances that somehow alter[ed] the nature of the express terms of [her] FOIA request'" thereby requiring it to search beyond the office specified in her request.  The court notes that "'[i]t is well established that an agency's duty under [the] FOIA is limited by the FOIA request' and an 'agency is not obligated to look beyond the four corners of the request in searching for or releasing records.'"  The court also finds that plaintiff's "allegations that the defendant should have documents responsive to the request do not rise above the level of speculation and therefore are insufficient to overcome the presumption of good faith afforded to the government's declarations."

4. Ahanmisi v. U.S. Dep't of Labor, No. 11-1118, 2012 WL 1592668 (D.D.C. May 7, 2012) (Walton, J.)

Re:  Request for all records related to Form ETA-750, Application for Alien Employment Certification, filed on plaintiff's behalf

Holding:  Granting defendant's motion for summary judgment on the basis that it conducted an adequate search for responsive records

• Adequacy of search:  The court holds that defendant's "affidavits are satisfactorily 'detailed and non-conclusory'" where they "detailed the databases searched, . . . the search terms used, . . . and provided an explanation for why the requested documents were not located" and there is no evidence of bad faith.  The court notes that "plaintiff's challenge to the search is partly based on the fact that the defendant's search would 'impliedly [take] a few minutes' and is thus unreasonable and inadequate."  However, the court finds that "the reasonableness of a search depends less on the time it takes to conduct the search and more on the thoroughness with which it was conducted."  Here, the court finds that defendant's search of "the only two databases in which the responsive records could be found satisfies the agency's burden that its search be 'reasonably calculated to uncover all relevant documents.'"  "Moreover, the results of a search are not determinative of whether the search was adequate."  As to plaintiff's contention that the search was inadequate because the agency failed to use one of the search terms mentioned in her request, the court concludes that although the use of the suggested term "may have added to the completeness of the search, its absence from the list of search terms does not undermine the 'reasonableness' of the search, especially in light of the unique, identifying terms already used and the specific record the plaintiff was trying to discover."  The court observes that "[s]o long as an agency satisfies the standard of reasonableness, 'a court need not quibble over every perceived inadequacy in an agency's response, however slight.'"  Lastly, the court finds that defendant "was not compelled to search for a hard copy of the document in the Federal Records Center in the absence of any reasonable likelihood that it would be found there."