Kinnucan v. NSA, No. 20-1309, 2021 WL 6125809 (W.D. Wash. Dec. 28, 2021) (Pechman, J.)

Kinnucan v. NSA, No. 20-1309, 2021 WL 6125809 (W.D. Wash. Dec. 28, 2021) (Pechman, J.)

Re:  Request for records relating to 1967 attack by Israeli forces on U.S. naval intelligence ship

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

• Procedural Requirements, "Agency Records":  "[T]he Court finds that there are no genuine disputes over material facts and concludes the House report is not an 'agency record.'"  The court relates that "[t]he D.C. Circuit has developed . . . a framework [to determine whether records are congressional records]."  "To determine whether a document that was created by Congress and is physically possessed by an agency [constitutes an agency record], the D.C. Circuit focuses on two inquiries:  (1) the facts and circumstances of the documents' creation and (2) the conditions attached to the documents' transfer to the agency."  "Because neither the Supreme Court nor the Ninth Circuit has articulated a test that addresses the constitutional considerations for congressional records, and because the Parties have not proposed an alternative, the Court finds the D.C. Circuit's approach persuasive and adopts it here as consistent with the Ninth Circuit's guidance to take a fact-driven approach to determining whether an agency controls a particular record such that it is subject to FOIA."  "Applying the D.C. Circuit's framework, the facts and circumstances of the House report's creation demonstrate that Congress intended to maintain control over the report as a congressional record even after giving a copy to the NSA."  "In particular, the record shows that Congress restricted the NSA's use of the report by marking it 'Not for release unless and until authorized by Committee.'"  "The 'not for release' marking is an unequivocal expression of Congress's intent to maintain control over the report."  "In addition, the substance of the report concerned sensitive national security issues – defense communications systems and naval intelligence practices . . . ."  "Finally, the Committee's decisions to create the report and provide it to the NSA were squarely in line with Congress's oversight role."  "While Plaintiff argues that Congress's reference to the report in open hearings cuts against the conclusion that it intended to keep the report secret, that does not necessarily follow."  "If Congress wanted the report to be public, it could have released it in full."  "It did not and instead made sure the report would not be disclosed."
   
• Exemption 1:  The court holds that "as to classified information under exemption (b)(1), the CIA's explanation falls short of 'demonstrate[ing] that the information withheld logically falls within the claimed exemptions.'"  The court relates that "[defendants] claim[ ] 'disclosure of these details – which would reveal the sources and methods by which [the] CIA acquired intelligence – could reasonably be expected to cause damage to [ ] national security by impairing the CIA's ability to carry out its core missions of gathering and analyzing foreign intelligence and counter-intelligence and conducting intelligence operations.'"  "[Defendants] [go] further and claim[ ] that the vast majority of the information is classified as top secret."  Additionally, "[defendants] acknowledge[ ] the records are old but contend[ ] that disclosure of even small details about the CIA's capabilities and sources at the time could be helpful to adversaries today and that many intelligence sources and methods remain viable for years to come."  "The problem with the CIA's explanation is that it could be used for any classified information dealing with intelligence methods or sources."  "This presents a challenge to judicial review because there must be an adequate factual basis to conclude the CIA properly withheld the records or portions of them."

• Exemption 3:  The court holds that "Defendants have also not carried their burden on exemption (b)(3) and must submit the records for in camera review."  The court relates that "[t]he CIA has identified Section 102(A)(i)(1) of the National Security Act, 50 U.S.C. § 3024, and Section 6 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 3507, as statutory bases for this exemption."  "The CIA's position is that Exemption (b)(3) applies coextensively to all the information that is subject to Exemption (b)(1) because the information would reveal specific intelligence sources and methods."  "As with exemption (b)(1), it is difficult to review the CIA's broad claims."  "For example, the CIA states it has withheld codewords and pseudonyms from the records, including 'throughout' documents 11–13 (the records totaling 173 pages that are completely withheld)."  "But those records are simply too large to consist entirely of codewords and pseudonyms."  "Similarly, the CIA has withheld classification and dissemination control markings, which could tip adversaries about the sensitivity of various records."  "But classification and dissemination markings could be redacted without having to redact other responsive portions."  "Finally, the CIA claims it has withheld titles, names, identification numbers, and organizational information of CIA personnel, including contractors under Section 6 of the CIA Act."  "These redactions appear to be more limited – although the CIA claims that Document 13 has been withheld entirely on this basis."  "In short, it is difficult to find a sufficient factual basis to uphold the CIA's response."
   
• Exemption 6:  The court relates that "[t]he CIA states it has applied exemption (b)(6) to withhold exempt information regarding CIA personnel . . . ."  "The Court has some hesitation about accepting at face value the need to redact names from documents that are so old, without some explanation as to the current need."  "But Plaintiff has not articulated any public-interest rationale for requiring the disclosure of these names."  "Because the CIA's application of this exemption is minimal and essentially unchallenged, the CIA may keep these (b)(6) redactions when it submits its records for in camera review."
   
• Litigation Considerations, Relief & Pattern-or-Practice Claims:  The court holds that "[w]hile Plaintiff's claim is not yet moot, because the Court has reserved decision on the records Defendants have produced, she has not alleged a pattern or practice of violations."  "In particular, she has not alleged that she has a sufficient likelihood of future harm by Defendants' policy or practice."  "Therefore, the Court finds declaratory relief inappropriate and denies Plaintiff's motion on this issue."