Bahrampour v. NSA, No. 21-2412, 2024 WL 473734 (D. Md. Feb. 7, 2024) (Russell, III, J.)

Bahrampour v. NSA, No. 21-2412, 2024 WL 473734 (D. Md. Feb. 7, 2024) (Russell, III, J.)

Re:  Requests for certain records concerning plaintiff

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 1:  The court relates that “[a]t issue here is Executive Order No. 13526, 75 Fed. Reg. 707, 707 (Dec. 29, 2009), which provides that an agency may designate documents as classified if four conditions are met. . . .”  “[Plaintiff] argues that FOIA requires NSA to identify responsive records and explain why each has been withheld.”  “In her Aff[i]davit, [defendant] explains that NSA owns the materials and is the original classifying authority.”  “Further, confirming the existence or nonexistence of any NSA records on [plaintiff], or on any individual, would reveal information relating to intelligence activities. . . .”  The court finds that “[d]isclosure could . . . damage national security and ‘affect NSA’s ability to counter threats to the national security of the United States.’”  “Therefore, the information sought meets all four requirements to be properly classified under Executive Order 13526.”  “[Defendant’s] Affidavit provides a detailed and credible explanation of why Exemption 1 applies to Request 1.”

• Exemption 3:  The court relates that “[t]he NSA also argues that its response was proper under Exemption 3, 5 U.S.C. § 552(b)(3).”  “NSA avers that three statutes exempt disclosure as to Request 1:  50 U.S.C. § 3605, 18 U.S.C. § 798, and 50 U.S.C. § 3024.”  The court finds that, “[f]irst, § 6 of 50 U.S.C. § 3605, also known as the National Security Agency Act of 1959, provides that ‘[n]othing in this chapter or any other 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 . . . .’”  “Federal courts have held that ‘Section 6 [of the National Security Act] qualifies as an Exemption 3 Statute’ and that it ‘provides absolute protection’ from disclosure, without requiring a showing of harm to national security.”  “As explained above, disclosure of NSA records responsive to Request 1 would require NSA to reveal classified information about its function and activities.”  “Therefore, the records sought fall within the coverage of § 6 of the National Security Act, and they may be withheld accordingly.”
  
  “Second, 18 U.S.C. § 798 prohibits the unauthorized disclosure of classified information:  (i) ‘concerning the communications intelligence activities of the United States,’ or (ii) obtained by the process of communications intelligence derived from the communications of any foreign government.”  “The term ‘communication intelligence,’ as defined by § 798, means the ‘procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.’”  “Again, the records sought in Request 1, or the simple acknowledgment that such records do or do not exist, concerns the communications intelligence of the United States for the reasons explained in [defendant’s] Affidavit.”  “Accordingly, nondisclosure and the Glomar response are also justified by this statute.”
  
  “Because the Court has determined that information was properly withheld under these first two statutes, the Court need not determine whether 50 U.S.C. § 3024 also applies here.”
   
• Procedural Requirements, Proper FOIA Requests:  The court relates that, in his second request, “[plaintiff] broadly asks for any records or information ‘relating to or relevant to’ five different categories, none of which appear to relate to NSA’s mission or work.”  The court finds that “[plaintiff] sought ‘any records’ or information ‘[r]elating to or [r]elevant to . . . [b]iological effects of electromagnetic [r]adiation,’ ‘environmental impact statements . . . concerning effects continuously exposing humans to electromagnetic [r]adiation,’ ‘communication systems or [d]evices which employ the microwave [a]uditory effect or microwave pulses,’ ‘[r]emote [n]eural monitoring [d]evices,’ and ‘G.P.S. targeting for [n]on-lethal systems.’”  The court finds that “[t]his vague language does not reasonably describe the records sought.”  “In [its] uncontroverted Affidavit, [defendant] credibly explains that despite extensive communications with [plaintiff] to attempt to narrow his request, he only added a temporal restriction of ten years.”  “This restriction was insufficient to allow NSA employees to perform a reasonable search.”