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Elec. Frontier Found. v. NSA, No. 14-03010, 2016 WL 1059389 (N.D. Cal. Mar. 17, 2016) (Seeborg, J.)

Thursday, March 17, 2016

Elec. Frontier Found. v. NSA, No. 14-03010, 2016 WL 1059389 (N.D. Cal. Mar. 17, 2016) (Seeborg, J.)

Re: Request for records concerning NSA's "Vulnerabilities Equity Process" (VEP)

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

  • Waiver:  The court holds that "in camera review of the classified declaration, subsequently confirmed by in camera review of the entire VEP document itself, established that the redacted information has not been previously “officially acknowledged” or disclosed such that the exemptions may no longer be claimed."
  • Exemption 5, Deliberative Process Privilege:  The court holds that defendant properly invoked Exemption 5.  The court first finds that "[t]he header [information on the VEP document] here is not an embodiment of the Vulnerabilities Equity Process, but a reflection of the 'group thinking' involved in 'working out' what that policy would be—a policy then expressed and embodied in the balance of the VEP document."  Therefore, this was correctly withheld under Exemption 5.  Second, in response to plaintiff's argument that "the government may not withhold the names of 'small government components' mentioned in the VEP document[,]" the court finds that, "[a]lthough the question is close, under the particular circumstances here, the government's contention that disclosure of those names would implicate the deliberate process is persuasive."
District Court
Exemption 5
Updated April 28, 2016