Kinnucan v. NSA, No. 20-1309, 2023 WL 4866369 (W.D. Wash. July 31, 2023) (Pechman, J.)
Kinnucan v. NSA, No. 20-1309, 2023 WL 4866369 (W.D. Wash. July 31, 2023) (Pechman, J.)
Re: Request for records concerning 1967 attack by Israeli forces on U.S. naval intelligence ship in international waters
Disposition: Granting defendant’s cross-motion for summary judgment; denying plaintiff’s cross-motion for summary judgment
- Exemption 3: “The Court finds that the CIA and NSA have met their burden to demonstrate that all of the information they have redacted and withheld falls within Exemption 3 . . . .” “[T]he CIA and NSA identify three statutory bases for the exemption: (1) Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605 (NSA Act of 1959); (2) Section 102(A)(i) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024 (NSA Act of 1947); and (3) Section 6 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 3507 (CIA Act of 1949).” “These statutes require the CIA and the NSA to protect certain kinds of information.” “First, the NSA Act of 1947 and the CIA Act of 1949 require the Director of National Intelligence (DNI) to ‘protect intelligence sources and methods from unauthorized disclosure.’” “Second, the NSA Act of 1959 exempts the NSA from disclosing ‘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.’” “The NSA’s declarant asserts that NSA’s intelligence capabilities, signals intelligence, and intelligence techniques all relate to the ‘activities’ of the NSA and fall within 50 U.S.C. § 3605.” “And the CIA’s declarant explains that the use of code words, pseudonyms, classification and dissemination control markings are intelligence methods often used to protect intelligence sources.” The court then finds that “the National Security Act of 1947 ‘provides the Director [of National Intelligence] with “very broad authority to protect all sources of intelligence information from disclosure.”’” “The Court finds that Defendants have satisfied their burden as to all of the withheld information.” “[T]he revised Vaughn index provides a redaction-by-redaction analysis of each document produced in part.” “The Vaughn index is detailed as to each redaction and it provides a basis to conclude that the information falls within the exemption.” “While the entries are repeated, the Court finds no reason to reject them on this basis.” “Given the number of redactions, the nature of the documents, and length of the index, it is unsurprising that the portions of the records are withheld on the same basis.” “More importantly, the index now affords Plaintiff sufficient grounds to understand the basis for the decision to withhold the information.” “Applying the ‘great deference’ the Court owes to the assertions Defendants make that the withheld information concerns CIA and NSA sources and methods or information relating to the intelligence activities of the NSA, the Court finds that the Vaughn index adequately supports the application of Exemption 3 to all of the redacted information.”
“Though a closer question, the Court also finds that Defendants have properly withheld one document in full.” “As to this . . . nine page document (Document 13), the revised Vaughn index states that Exemption 3 was ‘asserted to protect intelligence methods and sources, and controlled access markings’ and ‘organizational information of Agency personnel.’” “The Court finds this representation both logical and plausible.” “Applying the ‘great deference’ due, the Court finds that Defendants have properly invoked Exemption 3 to withhold Document 13.”
- Exemption 1: “[T]he Court also finds that Defendants have adequately invoked Exemption 1 to withhold materials under FOIA.” “First, the Court finds that Defendants have provided sufficient support to support their assertion that all of the withheld information falls within Exemption 1.” “While some redactions are lengthy, the revised Vaughn index does a satisfactory job of explaining the contents of the redactions and the reasons why the information fits within the Exemption.” “The Court also finds that Defendants have adequately identified a valid basis to withhold one document in the full (Document 13).” “The claim is both logical and reasonable.” “Second, the Court finds that the public declarations alone do not adequately identify how the release of the dated information may cause harm to the national security.” “The CIA’s declarant has provided high-level commentary on how dated materials about intelligence sources and methods can still damage present-day national security interest.” “The declarant also states that if the CIA discloses its intelligence gathering methods from 1967, the adversary could then use that information to identify what the CIA would have also had access to, and this could damage national security.” “The NSA’s declarant adds little new to her existing declarations as to the harm to national security.” “Even with this additional detail, the Court finds that the CIA’s and NSA’s declarants fail to link specific materials that have been withheld to any specific kind of harm.” “The declarations do not articulate in detail how knowledge of the CIA’s and NSA’s intelligence operations and capabilities from 60 years ago will harm present national security interests.” “This is inadequate, even applying the considerable deference owed.” “Notwithstanding the gaps in the publicly-filed declarations, the Court finds that the additional, ex parte declarations from the CIA and NSA justify the assertion of harm to the national security.” “Through the declarations, both the CIA and NSA provide greater detail and explain how the dated material contained in the documents could harm present-day national security interests if released.” “The declarations answer the question of how the release of dated information about the CIA’s and NSA’s intelligence operations and capabilities could harm national security.” “The ex parte declarations help fill the gap as to the rationale that the publicly-filed declarations express in only high-level terms.” “Applying the ‘considerable deference’ owed, the Court finds that the CIA and NSA have provided sufficient justification through both the publicly-filed and ex parte declarations and the revised Vaughn index that justify the invocation of Exemption 1.”
Separately, the court relates that “Plaintiff has additionally challenged whether the documents at issue are subject to automatic declassification because they are over twenty-five years old.” “Defendants have sufficiently complied with the requirements to preserve the classification of the records, and the Court rejects Plaintiff’s argument.” The court finds that “[t]he CIA and NSA declarants provide ample evidence that they have identified all of the redacted or withheld information as fitting within the . . . exception[s] to automatic declassification.” “Plaintiff argues that the declarations are untethered to the specific documents.” “But when read with the revised Vaughn index, each supplemental declaration provides a basis for the refusal to declassify.” “While the NSA declarant provides a more specific and robust explanation of the declassification exemption process, both declarants provide sufficiently detailed information to satisfy the Executive Order.” “And both declarants have been delegated authority from their relevant ‘agency head’ to make this determination.” The court relates that “[t]he Executive Order then specifies that the ‘agency head shall notify the [Interagency Security Classification Appeals] Panel of any specific file series of records for which a review or assessment has determined that the information within that file series almost invariably falls within one or more of the exemption categories listed in paragraph (b) of this section and that the agency proposes to exempt from automatic declassification at 25 years.’” “The Court notes . . . that neither declarant have affirmatively stated whether they provide notice to the ‘Panel’ about their determinations.” “Even if the notice requirement has been violated, the Court finds nothing in the Executive Order that would compel a finding that the materials must therefore be declassified.” “At most, the agency’s failure to provide notice to the Panel has deprived the Panel from weighing in on whether to declassify or extend the classification of these records.” “There is no provision in the Executive Orders suggesting that the remedy for failing to provide notice to the Panel is to compel declassification.” “And Plaintiff has not asked the Court to require the Panel to review the records at issue for possible declassification.” “The Court therefore concludes that the failure to provide notice to the Panel is harmless and rejects Plaintiff’s argument that the records here are subject to automatic declassification.”
- Litigation Considerations, “Reasonably Segregable” Requirements: Regarding the records withheld under Exemption 3, “[t]he Court . . . finds that the CIA and NSA have adequately justified their assertion that they have segregated the non-exempt portions of these records.” “Although the Court earlier faulted the CIA for its boilerplate assertions, it now finds that it has adequately described how it segregated non-exempt information.” “[T]he CIA has provided a far more robust Vaughn index that has helped assure the Court that it has performed a diligent segregation and now withheld only nine pages in full.” “Additionally, the NSA submitted a declaration attesting to its segregation activities, and the Court finds the NSA’s segregation efforts sufficient.” For the same reasons, “[t]he Court further finds that the CIA and NSA have adequately justified their assertion that they have segregated the non-exempt portions of [the records withheld under Exemption 1].”