Am. Ctr. for Law & Just. v. NSA, No. 17-01425, 2020 WL 4260667 (D.D.C. July 24, 2020) (McFadden, J.)

Am. Ctr. for Law & Just. v. NSA, No. 17-01425, 2020 WL 4260667 (D.D.C. July 24, 2020) (McFadden, J.)

Re:  Requests for records concerning alleged unmasking requests

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

• Exemptions 1, Glomar; Exemption 3, Glomar; Waiver & Discretionary Disclosure, Waiver:  The court relates that "[plaintiff] does not challenge either agency's reliance on [Exemption 1 or Exemption 3 used in conjunction with 50 U.S.C. § 3024(i)(1), 50 U.S.C. § 3605 and 18 U.S.C. § 798]."  "Instead, it contends that both agencies have waived their Glomar responses by officially acknowledging the existence of responsive records."  The court first rejects plaintiff's arguments that statements by former agency officials, members of Congress, or members of the media can constitute official agency disclosures.  As to Congress, the court noted that "disclosures by members of Congress – much like disclosures by former agency officials – are also not official agency disclosures."  "A contrary rule would almost certainly raise significant constitutional problems, as this would invite congressional encroachment on the Executive’s authority to control access to national security information."  Second, the court analyzes the effect of a declassified NSA memorandum, which "'pursuant to the oversight authorities vested with the [DNI]' . . . provides 'a revised list of identities of any officials who submitted requests to the [NSA] at any point between 8 November 2016 and 31 January 2017, to unmask the identity of former National Security Advisor, Lieutenant General Michael T. Flynn (USA-Ret.),'" and included "Samantha Power . . . among the listed officials."  The court finds that "the disclosure is specific enough to establish the existence of some responsive records, but it waives State's Glomar responses for those records only and waives none of the NSA's Glomar responses."  The court holds that "[t]he message is clear:  hold agencies to their official disclosures but be precise, lest courts force them to release sensitive information they have not actually disclosed."  The court finds that "[t]he declassified memorandum encloses 'a list of recipients who may have received [Flynn's] identity in response to a request . . . to unmask an identity that had been generically referred to in an NSA foreign intelligence report.'"  "The list consists of 'select identified principals,' including Power."  "'[A]uthorized individuals requested unmaskings . . . for [these] select identified principals.'"  "So the memorandum acknowledges that individuals made requests, on behalf of Power, to unmask Flynn."  "In doing so, it establishes the existence of records relating to these requests, as the Government concedes."  "And even more narrowly, the memorandum lists only six dates on which these requests were made."  The court holds that "[t]his disclosure is not specific enough to establish the existence of most records the Government refuses to acknowledge."  "The NSA asserts a Glomar response for Parts 1 and 2 of [plaintiff's] FOIA request, which target unmasking requests from Susan Rice, Cheryl Mills, Valerie Jarrett, Loretta Lynch, and Ben Rhodes."  "The declassified memorandum lists several principals, but not Rice, Mills, Jarrett, Lynch, or Rhodes."  "Given the precision the case law demands, this silence 'makes a difference.'"  The court holds that "[t]he same is true for Parts 4 and 5 of [plaintiff's] request to State" which "'requests from [Power] . . . regarding 'minimization procedures' in connection with . . . requests made by [Power] ... regarding the 'unmasking.'"  However, for Part 2 of plaintiff's request, the court addresses the question of "are unmasking requests made on behalf of Power equivalent to unmasking requests from Power?"  The court holds that "[b]y identifying Power as a 'principal,' the memorandum itself establishes that she was in a principal-agent relationship with the 'authorized individuals' who made requests 'for' her."  "[T]he law generally attributes an agent's actions to the principal when the agent acts within the bounds of his authority."  "And there is no suggestion here that in making the requests, the 'authorized individuals' were acting beyond the scope of their agency relationship with Power."  "So here, the requests from Power's subordinates were requests from her."  However, the court finds that, "importantly, the scope of the waiver is narrow."  "The memorandum references only requests to unmask Lt. Gen. Michael Flynn, not anyone else."  "Given this silence, it does not establish the existence of unmasking records for any of the 46 others named in [plaintiff's] request."  "The applicable dates for the waiver are also limited."  "The six dates listed under Power's name in the memorandum . . . are fair game."  "But no more than that."
  
  Third, regarding "plaintiff's reli[ance] on . . . a transcript of Power's testimony before the House Permanent Select Committee on Intelligence in October 2017," the court holds that "[h]er testimony, standing alone, consists of statements by a former official, so it cannot overcome either agency's Glomar responses."  "And even if the transcript were an official disclosure, that still would not help ACLJ."  "Nothing that Power states in the transcript is specific enough to establish the existence of any records subject to the agencies' Glomar responses."
   
• Litigation Considerations, Adequacy of Search:  Regarding the search for records responsive to a request for certain communications, in response to which NSA did not assert a Glomar, the court first finds that "[plaintiff's] request was not well defined" because "it defined the term 'NSA official' to encompass not only agency employees but also any person 'contracted for services by or on behalf of the NSA.'"  "A plaintiff has no authority to dictate the scope of an agency’s search."  "[I]f the agency had adhered to [plaintiff's] proposed scope, it would have searched the records of every NSA employee and contractor."  The court holds that "[t]he agency need not do this, as even [plaintiff] now concedes."  "The NSA drew that line at the Director, the Deputy Director, and the Executive Director, because these officials, it reasoned, would have been copied on any correspondence with the five senior Obama Administration officials that [plaintiff]  named."  The court holds that "it is eminently reasonable to believe that high-ranking Administration officials would have communicated with their peers at the NSA, not career subordinates."  However, the court finds that "it is far from clear that the agency's initial search terms would have captured any records associated with this account."  "In short, the NSA was aware of [one individual's] government email, but it fails to show that it performed a search reasonably calculated to uncover records associated with that address."  Regarding the decision not to search for the Attorney General's email alias, the court holds that "the inundated staffers in our Nation's FOIA offices cannot be expected to track the use of aliases by officials at different agencies."  "[A]n agency must follow clear leads apparent from the FOIA request or that it discovers during its search."  "But . . . an agency is not responsible for leads that it could not have been expected to discover."
   
• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  "The Court finds that State’s declarations and Vaughn Index adequately explain why all challenged documents qualify for these privileges."  The court relates that "for the most part, [plaintiff] does not contest [defendants'] explanations."  "It does so only for a few documents."  The court briefly relates defendants' explanation regarding the applicability of these privileges to certain documents and then notes that plaintiff "does not press the point" on certain documents or that "[plaintiff's] contrary assertion[s] [are] merely unsupported speculation." 
  
  Regarding all of these withholdings, the court relates that "[plaintiff] . . . argues . . . that State has shown no 'foreseeable harm' that would result from disclosure."  The court finds that "[t]he agency's supplemental declaration goes into greater detail."  "The foreseeable harm from disclosure is 'particularly heightened in the context of foreign affairs, where the U.S. Government's official position' implicates 'relationships with other countries.'"  "Release of 'non-final recommendations or opinions on foreign affairs' thus 'may cause international public confusion about the United States' stance on these issues.'"  "Similarly, 'release of these preliminary comments . . . could cause harm by providing the public with an erroneous understanding of agency decision-making at the U.S. Mission to the United Nations and among senior Executive Branch officials.'"  "The Court finds that, by these detailed explanations, State has fulfilled the terms of 5 U.S.C. § 552(a)(8)."  "After all, this provision requires only that the agency 'reasonably foresee[ ] that disclosure would harm an interest protected by an exemption described in subsection (b).'"  "State's declarations provide a reasonable basis to think that disclosure of the withheld materials would harm several interests that Exemption 5 protects, such as encouraging candid discussions and guarding against premature disclosure and public confusion."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[plaintiff] . . . complains that State 'conveniently fails to detail whether any information it has withheld is factual, as opposed to opinion.'"  "But this misses the mark."  "As the Government points out, there is no requirement that an agency 'attest to a negative,' that it is not withholding non-exempt material."  "Instead, State must 'demonstrate that all reasonably segregable material has been released.'"