Blake v. NSA, No. 21-1085, 2022 WL 3016714 (D.D.C. July 29, 2022) (Contreras, J.)

Blake v. NSA, No. 21-1085, 2022 WL 3016714 (D.D.C. July 29, 2022) (Contreras, J.)

Re:  Request for intelligence information concerning 1985 disappearance and death of individual

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

• Exemption 1; Exemption 3; Waiver and Discretionary Disclosure, Waiver:  “[T]he Court first concludes that the NSA has not waived its Glomar response because Plaintiffs have provided no evidence that the NSA has previously disclosed the existence of the requested information[, “radio-telephone communications that the NSA allegedly intercepted in” Guatemala at the time of the decedent’s death].”  The court finds that “Plaintiffs cannot show that prior disclosure occurred because they have not supplied any evidence that the NSA acknowledged conducting surveillance in the region and time at issue.”  The court relates that plaintiff’s point to “a ‘two-volume report’ published by George Washington University,” information ‘widely reported in the media’ and ‘discussed extensively in the academic literature,’” “‘U.S. Government documents’ such as ‘diplomatic cables’ of U.S. monitoring of ‘Guatemalan Army unit radio-telephone and radio communications,’” and “telephone interviews of two academic experts and an ex-NSA employee and received ‘[e]xpert opinions’ apparently confirming the NSA’s surveillance activities in the region and time.”  The court holds that “[u]nder the prior disclosure test, however, none of these sources of information constitutes an official acknowledgement by the NSA.”
  
  “Turning to the merits, the Court finds that the NSA has not provided sufficient detail to show that that the requested information remains classified under Exemption 1.”  The court explains that “the parties’ dispute over Exemption 1 primarily centers on whether the NSA’s Glomar response rests on information that is still classified.”  “Specifically, Plaintiffs claim that the requested records are thirty-six years old and therefore subject to automatic declassification under E.O. 13,526.”  “Section 3.3 of E.O. 13,526 provides that records which ‘are more than 25 years old and . . . have been determined to have permanent historical value . . . shall be automatically declassified’ ‘except as provided’ by exemption. E.O. 13,526 § 3.3 . . . .”  “Notably, the NSA failed to identify which, if any, of § 3.3(b)’s nine declassification exemptions applied.”  “Instead, the NSA claims declassification exemptions from a different source.”  “As it turns out, § 5.3(b)(2) of the same executive order authorizes an entity called the Interagency Security Classification Appeals Panel (‘ISCAP’) to ‘approve, deny, or amend agency exemptions from automatic declassification as provided in section 3.3 of this order[.]’”  “The NSA proffers two declassification exemptions from an internal manual called the NSA/CSS’s 2018 Declassification Guide, which the ISCAP approved.”  “These two exemptions are:  (1) ‘[i]nformation revealing specific sources and methods used by NSA/CSS to collect, and/or process SIGINT and that are currently used today’ and (2) ‘[i]nformation revealing NSA/CSS targeting, collecting, or processing diplomatic or leadership communications of specific foreign country/countries, international organization, group of individuals, or individuals after 31 December 1946.’”  “At this juncture, the Court lacks enough information to allow the NSA to invoke these two exemptions under the Declassification Guide.”  “With respect to the Guide’s first exemption, Plaintiffs claim that the 36-year old radio-telephone communications they seek is ‘substantially obsolete’ and therefore not ‘currently used’ by the NSA.”  “The NSA did not engage with this point.”  “Accordingly, the NSA has not adequately explained why it is eligible to rely on the Guide’s first exemption.”  “With respect to the Declassification Guide’s second exemption, the NSA claims that communications between military officials constitutes ‘leadership communications,’ but makes no attempt to define this term or explain its reach.”  “Therefore, the NSA has not adequately explained why it is eligible to rely on the Guide’s second exemption, either.”  “The NSA’s briefing proffers yet one more basis to exempt information from automatic declassification.”  “According to the NSA, in 2014, the ISCAP approved ‘two file series exemptions for NSA records’ that exempted ‘NSA SIGINT Product and SIGINT Cryptanalysis Methodologies . . . from automatic declassification.’”  “The NSA claims that the ‘summaries of raw data’ that Plaintiffs request ‘would be specific to NSA SIGINT products’ and therefore ‘would be exempt from automatic declassification under NSA’s file-series exemptions.’”  “Treating the NSA’s representation with ‘substantial deference,’ . . . the Court nonetheless finds this explanation inadequate.”  “Without more context, the Court is not prepared to rule for the NSA on this basis.”  “Therefore, the NSA has not currently satisfied any declassification exemption to show that the requested information is still classified under Exemption 1.”  “Ordinarily, the Court would consider giving the NSA another chance to explain the basis for its Glomar response in more detail.”  “That is unnecessary here, however, because the NSA is independently entitled to summary judgment on the basis of Exemption 3.”
  
  The court finds that “the NSA has provided sufficient information to satisfy Exemption 3 because the National Security Act protects the agency from disclosing its intelligence functions and activities here.”  “Here, the NSA claims that its Glomar response is specifically exempted by three statutes:  (1) Section 6 of the National Security Act of 1959, 50 U.S.C. § 3605; (2) 18 U.S.C. § 798; and (3) Section 102A(i) of the National Security Act of 1947, 50 U.S.C. § 3024.”  “‘It is well established that each of these [three] statutes qualifies as an Exemption 3 withholding statute . . . .’”  “The NSA’s Glomar response falls squarely within Section 6 of the National Security Act of 1959.”  “Section 6 provides that ‘nothing 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 . . . .’”  “As this Circuit has recognized, ‘[s]ection 6 . . . provides absolute protection.’”  “Furthermore, ‘NSA need not make a specific showing of potential harm to national security in order to justify withholding information under Section 6, because “Congress has already, in enacting the statute, decided that disclosure of NSA activities is potentially harmful.”’”  “Here, the NSA has explained that ‘its signals intelligence activities and functions, and its intelligence sources and methods, would be revealed if it were to confirm or deny the existence of information responsive to plaintiffs’ FOIA request.’”  “The NSA elaborated that ‘[a]cknowledging the existence or nonexistence of responsive records on particular individuals or organizations would provide [its] adversaries with critical information about the capabilities and limitations of the NSA, such as the types of communications that may be susceptible to NSA detection.’”  “‘Over time, the accumulation of these inferences would disclose the targets and capabilities, and therefore the sources and methods, of NSA’s SIGINT activities and functions . . . .’”  “The Court finds that the NSA’s explanation is plainly ‘logical or plausible.’”