Kinnucan v. NSA, No. 20-1309, 2024 WL 4857444 (W.D. Wash. Nov. 21, 2024) (Pechman, S.J.)

Kinnucan v. NSA, No. 20-1309, 2024 WL 4857444 (W.D. Wash. Nov. 21, 2024) (Pechman, S.J.)

Re:  Request for records concerning 1967 attack by Israeli forces on U.S. naval intelligence ship, U.S.S. Liberty, in international waters

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

• Procedural Requirements, “Agency Records”:  The court relates that “[a]fter remand from the Ninth Circuit, NSA reprocessed [plaintiff’s] FOIA request and made ‘discretionary releases of additional information that it determined may bear on questions of congressional control and NSA’s possession of the [House Appropriation Committee’s two volume report (“HAC Report”)].’”  “NSA released two documents and some additional information about the copy of the HAC Report in its possession.”  “The two documents are a ‘Routing and Transmittal Slip’ and a ‘Memorandum for the director/Deputy Director’ of NSA.”  “These are internal NSA records.”  “Although NSA believes th[ese] documents are not responsive to the FOIA request because they are not the HAC Report, it disclosed them because they ‘potentially had bearing on the decision of whether the report was a congressional record.’”
  
  As to the proper framework for analyzing agency “control” of the records at issue, “[r]elying on [Rojas v. FAA, 941 F.3d 392 (9th Cir. 2019)] and [DOJ v. Tax Analysts, 492 U.S. 136 (1989)] [plaintiff] argues that the intent of the document’s creator is irrelevant and that an agency ‘controls’ a record if ‘“the materials have come into the agency’s possession in the legitimate conduct of its official duties,”’ or ‘“in connection with the transaction of public business.’””  “[Plaintiff’s] proposed standard overlooks the unique constitutional considerations presented by agency ‘control’ of congressional records – an issue that neither Tax Analysts nor Rojas considered.”  “As the D.C. Circuit has noted, an application of Tax Analysts to a case involving congressional records in an agency’s possession ‘is not so simple’ because ‘the connection between Congress and the requested records implicates considerations not at issue in Tax Analysts[.]’”  “First, Congress possesses a constitutional oversight role that allows it to keep certain records secret.”  “Second, [C]ongress’s ability to provide oversight to agencies could well be hampered if it feared that any records given to an agency as part of its oversight role could be made public by the agency’s mere possession of the document.” “Under the D.C. Circuit’s framework, ‘the answer to the question whether the document is an ‘agency record’ subject to disclosure under FOIA ‘“turns on whether Congress manifested a clear intent to control the document.”’”  “To determine congressional intent, the D.C. Circuit requires an analysis of:  (1) the facts and circumstances of the documents’ creation and (2) the conditions attached to the documents’ transfer to the agency.” 
  
  The court finds that “the additional evidence in the record confirms the Court’s prior finding that Congress manifested a clear intent to maintain control over the HAC Report, making the HAC Report outside of FOIA’s disclosure mandate.” First, regarding the facts and circumstances of the HAC Report’s creation, the court finds that “[t]he creation of the HAC Report suggests that it was intended to be kept as a secret congressional record and not made public.”  “Staff members created two-volume report after the House Appropriations Committee held a ‘special hearing’ on communications errors in the attack on the U.S.S. Liberty and directed the report’s creation.”  “According to NSA’s declarant, Congress has never publicly released the HAC Report.”  “And there is no evidence before the Court that the HAC Report has ever been made public.” “Moreover, it appears that the Committee placed immediate restrictions on the control of the document.”  “NSA’s copy of the HAC Report bears a banner stating ‘NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE’ twice in each volume.” “To NSA’s current knowledge, the banner was not added by NSA or anyone else after it received the HAC Report.” “Additionally, the Memorandum to the NSA Director states that the HAC Report copy sent to him was ‘purloined’ – a fact that seemingly supports Defendants’ position.”  “To ‘purloin’ means ‘to appropriate wrongfully and often by breach of trust.’”  “Though neither Party would concede that the HAC Report in NSA’s possession was stolen, the language in the Memorandum further buttresses the congressional indication of control on the banner itself.”
  
  “[Plaintiff] suggests that the routing slip did not require return of the report, which indicates Congress intended to relinquish it.” “While the Court finds some merit in this argument, it is not dispositive.”  “The routing slip attached the copy of the HAC Report that was clearly marked with the banner and it was not for distribution.”  “There is nothing in the routing slip suggesting that Congress intended NSA to use the reports broadly or in some manner contrary to the banner.”  “The Court rejects [plaintiff’s] arguments and continues to find the HAC Report a congressional record.”
  
  Second, regarding the conditions of the report’s transfer to NSA, the court finds that “NSA has again shown that Congress imposed restrictions on NSA’s use of the HAC Report.”  “The Report bears the banner stating ‘NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE,’ and NSA has no record of the Report without that marking.” “Additionally, the May 13, 1968 NSA Director’s Memorandum that forwarded the copy of the HAC Report states that it was ‘a purloined copy’ of the report.”  “While the Parties do not believe NSA stole the copy, this language could suggest the copy sent to [the NSA] Director . . . from [the document’s author] was taken from [NSA’s Chief for the Office of Legislative Affairs] without [the Chief for the Office of Legislative Affairs’s] permission.”  “The mere fact that NSA’s internal use of the Report references the word ‘purloin’ stands at odds with any suggestion that Congress told anyone at NSA that it could use the document freely.”
  
  “[Plaintiff] argues that NSA has unfettered use of the HAC Report because NSA has retained a copy of the HAC Report in its ‘History Collection’ and because it neither returned the copy nor ‘limited the dissemination and use to the original requestor.’”  “While these arguments have some facial appeal, they are not convincing.” “First, there is no evidence before the Court us to how NSA maintains the HAC Report and the extent to which it is accessible within the agency.”  “There is nothing before the Court suggesting that it is widely accessible.”  “Second, while it may seem peculiar that NSA never returned a copy, there is no indication that NSA ever acted in a way contrary to the Congressional banner restricting its public dissemination.”  “Indeed, the Routing Slip itself did not demand return of the document, so NSA cannot be accused of ignoring a return request from Congress.”  “And while the lack of a demand from Congress could also mean the NSA was free to use the Report broadly, the Court cannot reach that conclusion given the fact that the forwarded copy of the Report was festooned with a banner proclaiming Congress’ continued ownership.”  “And NSA’s Director stated that the Report should have limited readership to just two others.”  “So while the HAC Report did circulate beyond the initial requester, the distribution appears to have been limited to only four other individuals.”