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Kinnucan v. NSA, No. 20-1309, 2022 WL 16716224 (W.D. Wash. Nov. 4, 2022) (Pechman, J.)

Date

Kinnucan v. NSA, No. 20-1309, 2022 WL 16716224 (W.D. Wash. Nov. 4, 2022) (Pechman, J.)

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

Disposition:  Completing in camera inspection and ordering defendants to supplement Vaughn index and supporting declarations to cure certain defects

  • Exemption 1 & Litigation Considerations, Vaughn Index/Declaration:  “Having completed in camera review of the documents, the Court has been able to assess the justifications advanced by the CIA and NSA in the Vaughn index and supporting declarations.”  “But the Court is aware of the Ninth Circuit’s admonishment that in camera review ‘is not an acceptable substitute for an adequate Vaughn index.’”  “The Court therefore does not rely on its in camera review to serve as a substitute for the Vaughn index.”  “The Court’s decision in this Order turns on its review of the Vaughn index, the supporting declarations, and the redacted copies of the records that have been produced to Plaintiff.”  “First, the Court assesses whether the supporting declarations and Vaughn index sufficiently identify the information withheld as concerning intelligence methods and sources, covert agency facilities, and/or the NSA’s intelligence activities and capabilities.”  “As to Document 1 . . . , the Court finds that the redacted information withheld under Exemption 1 on page three has been sufficiently identified by the CIA in the Vaughn index to concern intelligence sources and methods.”  “The [CIA’s] assertion appears both logical and plausible, particularly when applying the deference owed to the CIA’s declarant.”  “As to Documents [2, 3, 4, 5, 6, 8, and 9,] the Court finds that [defendant] and the Vaughn index fail to adequately describe how the redacted information falls within Exemption 1.”  “There are multiple paragraphs in each document identified as being subject to Exemption 1.”  “But the Vaughn index provides only the following boilerplate explanation for all of the redactions in each document:  ‘Exemption (b)(1) was asserted to protect classified intelligence methods and sources.’”  “[Defendant’s] declaration adds some additional information, but that information is not document- or redaction-specific.”  “Neither the Court nor Plaintiff can reasonably use [defendant’s] statement to identify what specific portions of the documents actually contain information about CIA intelligence sources and methods.”  “While the Court gives deference to [defendant’s] attestation, it remains too vague to intelligibly identify those portions of Documents 2, 3, 4, 5, 6, 8, and 9 that might concern intelligence sources and materials.”  “The Court’s in camera review also confirms that the CIA’s descriptions are too vague to allow the Court to identify what is or is not an intelligence method or source in the redacted sections.”  “The Court also finds that the NSA has inadequately identified materials subject to Exemption 1 in Document 8.”  “[Defendant] claims that Document 8 contains ‘specific details about NSA intelligence activities and capabilities’ and ‘details about NSA intelligence reporting derived from SIGINT and associated analysis and explanation.’”  The court finds that these statements “do not allow a meaningful assessment of whether each piece of redacted information falls within these broad categories.”  “The declaration could have offered specific insights as to each redacted section of information, but does not.”  “And the Court’s in camera review confirms that [defendant’s] declaration lacks the necessary specificity to confirm – even with deference – that Exemption 1 applies to each piece of redacted information.”  “As to the three documents withheld in full . . . the Court similarly finds that the CIA fails to meet its burden.”  “[Defendant’s] declaration provides inadequate information to know whether or not the entirety of each document details intelligence sources and methods.”  “The Vaughn index repeats the boilerplate statement that ‘Exemption (b)(1) was asserted to protect classified intelligence methods and sources.’”  “But without more specificity, the Court cannot assess whether all 173 withheld pages plausibly identify intelligence methods and sources.”  “The Court’s in camera review also confirmed that the justification advanced lacks sufficient specificity to conclude that all pages of these documents reflect intelligence sources and methods or covert locations.”  “The Court finds that CIA has failed to meet its burden to show how all of the information in these documents falls within Exemption 1.”

    “The Court also finds the CIA and NSA have failed to identify with sufficient care and detail how the revelation of the withheld and redacted information from 1967 and 1978 would reasonably be expected to result in current damage to national security.”  “First, [defendant] does not attempt to make a showing of harm specific to each document or its contents.”  “Instead, [defendant] speaks in generalities about the risk of disclosure of information about intelligence methods and sources, and the location of covert facilities.”  “That is problematic because it does not allow the Court to measure the logic or plausibility of the assertions as to each document, particularly for lengthy documents.”  “It also falls short of the agency’s burden to ‘make an effort to tailor the explanation for classification to the specific document withheld.’”  “Second, [defendant] fails to make a logical or plausible explanation as to why the revelation of information from 1967 and 1978 would be reasonably likely to harm national security.”  “Third, [defendant] asserts that ‘many intelligence sources and methods remain viable for many years, and the harms from disclosure do not become attenuated over time.’”  “But [defendant] nowhere asserts that the withheld information concerns any currently viable sources or methods of intelligence gathering that might support [its] assertion.”  For similar reasons, “[t]he NSA, too, falls short of meeting its burden as to Document 8.” 
     
  • Exemption 3 & Litigation Considerations, Vaughn Index/Declaration:  The court relates that “the CIA and NSA identify 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 National Security Act provides that the Director of National Intelligence (DNI) ‘shall protect intelligence sources and methods from unauthorized disclosure.’”  “[Section 6 of the National Security Agency Act of 1959] exempts the NSA from ‘the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency.’”  “As to Document 1, the Court agrees with the CIA that it has adequately identified portions of the document that identify methods or source of intelligence that fits within Exemption 3.”  “On this point, the Court adopts its Exemption 1 analysis.”  “But the Court remains unconvinced that the CIA has sufficiently identified the intelligence methods and sources in Documents 2, 3, 4, 5, 6, 8, 9, 11, 12, and 13 to satisfy Exemption 3.”  “The Court reaches the same conclusion as to the NSA’s assertions concerning Document 8.” “The Court adopts its Exemption 1 analysis as to these documents and the Exemption 3 assertion.”  “In addition, the Court notes that, as to Exemption 3[,] [the CIA] uses the kind of conditional language found inadequate in the context of Exemption 1 . . . .”  “This undermines her assertion that the redacted information does actually refer to the NSA's capabilities, sources, and/or methods, and it deprives Plaintiff of the ability to test the assertion or the Court to intelligently judge the issue.”  “The Court also finds that the CIA has failed to provide sufficient information to allow for identification of code words, pseudonyms, classifications, and dissemination control markings in Documents 2 through 14.”  “In sum, the Court concludes that except as to Document 1, the CIA and NSA have failed to sufficiently support their assertion that all of the withheld materials identified fall within Exemption 3.”
     
  • Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court . . . finds that the CIA and NSA have not adequately justified their assertion that they have segregated the non-exempt portions of these records.”  “The CIA’s segregability assertion fails because ‘the agency “did not provide [plaintiff] or the district court with specific enough information to determine whether the [agency] had properly segregated and disclosed factual portions of those documents that the [agency] claimed were exempt”’ under Exemption 1 and 3.”  “[T]he CIA provides no details that might allow the Court and Plaintiff to understand how that line-by-line analysis was performed and how the CIA made its ultimate conclusion on segregability as to all of the redacted and withheld documents.”  “The Court’s in camera review suggests that far greater specificity is necessary to justify the lack of segregation of these three documents.”  “The Court therefore orders Defendants to file a supplemental Vaughn index and any additional supporting declarations they believe address the gaps identified in this Order.”
     
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 1, 2022