All Party Parliamentary Group on Extraordinary Rendition v. DOD, No. 09-2375, 2015 WL 5723566 (D.D.C. Sept. 29, 2015) (Friedman, J.)

All Party Parliamentary Group on Extraordinary Rendition v. DOD, No. 09-2375, 2015 WL 5723566 (D.D.C. Sept. 29, 2015) (Friedman, J.)

Re: Requests for records concerning extraordinary rendition

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

• Procedural Requirements, Searching for Responsive Records:  The court agrees with defendant's assertion "that, because its function is limited solely to signals intelligence, it is unlikely to possess any documents responsive to the [requests for human intelligence activities] and is not required to search its records."  The court also relates that "[p]laintiffs speculate that, because the NSA is a 'key player in the war on terror,' the NSA must be receiving human intelligence information from other intelligence agencies."  The court finds that "[a]lthough plaintiffs’ claims may be plausible, the NSA’s declaration, filed under pain of perjury, is accorded a presumption of good faith and 'cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'"
   
• Exemption 1:  The court holds that "[t]he NSA therefore has carried its burden to show that FOIA Exemption 1 applies."  "In its declaration, the NSA explains that acknowledging the existence or nonexistence of documents responsive to the Group 2 Requests would disclose information (1) that is currently and properly classified pursuant to Executive Order 13,526—'NSA capabilities, activities and intelligence priorities'—and (2) that 'reasonably could be expected to cause exceptionally grave damage to the national security.'"
   
• Exemption 3:  The court holds that "[t]he NSA also is entitled to summary judgment under FOIA Exemption 3."  The court first finds that "[t]he statute claimed by the NSA plainly qualifies [as an Exemption 3 statute]: 50 U.S.C. § 3605(a) provides that no law 'shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof.'"  "Because the Group 2 Requests seek records relating to the NSA’s functions and activities, the NSA’s Glomar response also is valid under Exemption 3 and the agency is entitled to summary judgment."
   
• Waiver:  The court holds that "[p]laintiffs thus have failed to meet the substantial burden the law places upon them."  "Leaked information and documents, like those identified by plaintiffs, do not constitute official acknowledgment."  "Moreover, the declassified documents identified by plaintiffs are limited, describe the NSA’s activities in general terms, and do not concern the specific activities, investigations, and detentions detailed in plaintiffs' FOIA requests."