James Madison Project v. NSA, No. 22-0153, 2023 WL 4181196 (D. Md. June 26, 2023) (Chuang, J.)

James Madison Project v. NSA, No. 22-0153, 2023 WL 4181196 (D. Md. June 26, 2023) (Chuang, J.)

Re:  Request for records concerning memorandum regarding condition currently referred to in press as “‘Havana Syndrome’”

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration & In Camera Inspection:  The court holds that “[defendant’s declarations] provide significant detail and explanation of why the [records at issue] are classified and subject to exemption from disclosure.”  “To the extent that additional information was needed, the Court sought and received the Classified Declaration, which provides further information that confirms and solidifies the assertions in the [declarations].”  “Where the subject matter of the . . . Memorandum clearly implicates national security, and it is evident from the declarations that the [records at issue] are intelligence products derived from signals intelligence and thus properly classified, the Court concludes that the three declarations together provide sufficient information and details upon which to rule on the Motion.”  “The Court therefore concludes that in camera review of the [records] themselves is not necessary to resolve the Motion.”

• Exemption 1:  The court holds that “[defendant] asserts that the United States government controls the [records at issue] and that the records are properly classified as Top Secret because ‘the release of this information could reasonably be expected to cause exceptionally grave damage to the national security.’”  “[Defendant] also confirms that the [records] fall into the category of ‘intelligence activities (including covert action), intelligence sources and methods, or cryptology’ in that ‘they contain information from intelligence reporting derived from’ signals intelligence (‘SIGINT’) ‘and associated analysis or explanation.’”  “Thus, [defendant’s] Declaration establishes that all four requirements under Executive Order No. 13,526 are met and that the [records] are properly classified, as necessary for the application of Exemption One.”

• Exemption 3:  The court relates that “[h]ere, the NSA argues that the [records at issue] were properly withheld under FOIA Exemption Three on the basis of three qualifying statutes:  (1) Section 6 of the National Security Act of 1959, 50 U.S.C. § 3605 (2018); (2) the Espionage Act, 18 U.S.C. § 798 (2018); and (3) Section 102(A)(i)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024.” 
  
  “Section 6 of the National Security Act 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.’”  “At least one United States Court of Appeals has 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.”  The court finds that “[h]ere, the [records] fall within the coverage of Section 6 of the National Security Act.”  “One of the primary missions of the NSA is ‘to collect, process, analyze, produce, and disseminate SIGINT information for foreign intelligence and counterintelligence purposes to provide support for national and departmental requirements and for conducting military operations.’”  “As [defendant] has attested to in her declaration, the [records] consist of ‘communications intelligence’ that ‘was gathered by NSA’s SIGINT efforts.’”  “The information about the contents of the [records] that was provided in the Classified Declaration provides additional support for this claim.”  “Because the record reflects that the [records] contain information ‘with respect to the activities’ of the NSA, 50 U.S.C. § 3605(a), in that they are the product of NSA SIGINT activities, the Court finds that FOIA Exemption Three applies because this information is ‘specifically exempted from disclosure by statute,’ specifically, Section 6 of the National Security Act.”
  
  “As relevant here, the Espionage Act provides that:  ‘(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information  . . . (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes – Shall be fined under this title or imprisoned not more than ten years, or both.’”  “Plaintiffs agree that the Espionage Act has been held to qualify as an Exemption Three Statute and thus bars ‘the unauthorized disclosure of properly classified information.’”  “As established by [defendant’s] Declaration, the [records] constitute classified ‘communications intelligence’ because the information in them ‘was gathered by NSA’s SIGINT efforts.’”  “Where the information in the Classified Declaration is consistent with this assertion, the Court finds that FOIA Exemption Three applies because the Espionage Act bars disclosure of the classified contents of the Beck Records.”
  
  “Because the Court finds that FOIA Exemption Three applies to the Beck Records based on both the National Security Act and the Espionage Act, it need not and does not address the argument that this exemption applies based on the Intelligence Reform and Terrorism Prevention Act.”
   
• Waiver and Discretionary Disclosure, Waiver:  The court relates that “Plaintiffs argue that the NSA has waived application of FOIA Exemption Three because the . . . Memorandum acknowledges that the [records at issue] address ‘intelligence information’ and ‘consist entirely of an intelligence product.’”  The court holds that “Plaintiffs do not, however, cite a specific fact that has been officially acknowledged by the NSA or in the public domain that would duplicate the information being withheld in the [records].”  “Moreover, upon review of paragraph 6 of the Classified Declaration, the Court finds that the [records] contain additional, more specific information than was disclosed in the . . . Memorandum.”  “Accordingly, Plaintiffs have failed to meet their burden to demonstrate that the NSA has waived any application of FOIA Exemption Three or any other FOIA exemption.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements; Procedural Requirements, “Reasonably Segregable” Obligation; Exemption 1:  The court relates that “Plaintiffs argue that even if the [records at issue] are properly classified and subject to statutory prohibitions on disclosure, the NSA should nevertheless release those limited portions of [records] that are marked Unclassified/For Official Use Only.”  “In the Supplemental Declaration, [defendant] has acknowledged that the [records] contain certain material marked as Unclassified/For Official Use Only but asserts that those pieces of information are nevertheless classified and thus exempt from disclosure when viewed in the context of the document as a whole.”  “In particular, the fact that such information is known to have been contained in an SIGINT intelligence report, and specifically to have been contained in records relating to the topics referenced in the . . . Memorandum, could allow an experienced reader, such as a foreign intelligence service analyst, ‘to make factual associations and relationships between the unredacted and redacted portions of the intelligence reports’ that could provide clues on ‘the source, type, subject matter, and amount of classified information’ possessed by the United States on the subject.”  “Upon review of the additional information provided in paragraphs 7–18 of the Classified Declaration, the Court agrees that because release of the portions of the [records] marked as Unclassified/For Official Use Only would necessarily reveal not only the specific facts contained in those sections but also the significant additional fact that the information was discussed in relation to the topics addressed in the . . . Memorandum, the NSA has appropriately deemed them to be classified when considered in the context of the whole documents.”  “The Court therefore finds that the Unclassified/For Official Use Only portions of the Beck Records are not segregable and are exempt from disclosure.”