Agility Pub. Warehousing Co. K.S.C. v. NSA, No. 14-0946, 2015 WL 4183443 (D.D.C. July 10, 2015) (Howell, J.)

Agility Pub. Warehousing Co. K.S.C. v. NSA, No. 14-0946, 2015 WL 4183443 (D.D.C. July 10, 2015) (Howell, J.)

Re: Request for plaintiff's communications

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 1:  The court first addresses Exemption 1's general applicability and holds that "the NSA has invoked Exemption 1 properly in support of its Glomar response."  The court explains that "disclosure 'could reasonably be expected to cause exceptionally grave and irreparable damage to the national security by providing . . . adversaries a road map that instruct[s] them on which communication modes or personnel remain safe or are successfully defeating NSA's capabilities.'"  The court also specifically addresses plaintiff's argument that "because the NSA collects everything, disclosure would reveal nothing," and "finds the NSA's explanation regarding the classification and potential national harm," specifically, that any disclosure would "sketch the contours of the program," "to be both 'logical' and 'plausible.'"
   
• Exemption 3:  The court holds that "[t]he NSA's invocation of Exemption 3 is likewise proper."  The court relates that "[t]he NSA invokes a recognized withholding statute, Section 102A(i)(1) of the National Security Act of 1947, in support of its Glomar response."  "Section 102A(i)(1) protects 'intelligence sources and methods from unauthorized disclosure.'"  The court explains that "[t]he plaintiff's challenges to Exemption 3 mirror the arguments made in opposition to Exemption 1" and finds that "plaintiff's Exemption 3 argument is similarly unavailing."
   
• Exemption 1, Glomar:  Turning to defendant's use of a Glomar response specifically, "the Court finds that the NSA has officially acknowledged the collection of certain telephony metadata from Verizon Business Network Services from April 25, 2013 through July 19, 2013, but has not otherwise officially acknowledged its possession of any other records sought by the plaintiff."  The court first finds that "the NSA officially acknowledged the collection of telephony metadata information from Verizon Business Network Services, making it neither logical nor plausible for the NSA to deny this fact now."  The court points to a "FISC Secondary Order [that] directed Verizon Business Network Services to provide to the NSA 'on an ongoing daily basis . . . all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.'"  "The Secondary Order was limited to a 90–day period between April 25, 2013 and July 19, 2013, and included the originating and terminating telephone number along with the time and duration of the call."  However, the court also finds that, "[w]ith respect to other telephone service providers and other periods of time, the plaintiff has not pointed to any disclosures documenting the specific telephone service providers that participated in the program and during what periods of time."  The court finds that plaintiff's "[l]ogical deductions may not substitute for official acknowledgements."  Similarly, the court finds that "the plaintiff [also] has made no such showing regarding any of the other electronic communications programs—the PR/TT program, the PRISM program, and the upstream collection program."
   
• Sealed Documents:  The court holds that, "[g]iven the plain language in the [FISC] Primary Order and the general context of the telephony metadata program, the Court will not require the NSA to seek clarification from the FISC regarding whether the Primary Order contemplates prohibiting disclosure under the FOIA."  "Rather, as the Primary Order makes clear, the NSA is not permitted to access the requested materials for purposes of complying with a FOIA."  The court explains that "[a]n improper withholding does not occur, and the FOIA does not apply, when documents are withheld pursuant to a court order specifically enjoining their release.  In such circumstances, the agency 'simply [has] no discretion ... to exercise' and, thus, 'has made no effort to avoid disclosure.'"
   
• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that the declarations are reasonably detailed and the NSA's search was reasonably calculated to lead to responsive documents."  Specifically, "the NSA identified the records systems searched, the rationale for searching those records systems, the search terms employed, and averred that all files likely to contain responsive materials were searched."  In response to plaintiff's argument, the court also finds that "plaintiff's insistence on its own preferred search terms does not undermine the reasonableness of the NSA's search terms."