Kurzban v. NSA, No. 17-22614, 2023 WL 2601046 (S.D. Fla. Mar. 22, 2023) (Gayles, J.)

Kurzban v. NSA, No. 17-22614, 2023 WL 2601046 (S.D. Fla. Mar. 22, 2023) (Gayles, J.)

Re:  Requests for records concerning plaintiffs

Disposition:  Granting defendants’ motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court relates that “the DIA searched six databases for documents responsive to Plaintiffs’ requests.”  “The DIA first searched the Office of Security & Directorate of Operations.”  “Once armed with Plaintiffs’ full names, dates of birth, and social security numbers, the DIA searched five additional databases comprising over 3 billion records.”  “The Court finds that the DIA’s search was more than adequate.”  “Moreover, Plaintiffs’ incredulity that the DIA found no documents does not create a genuine issue of material fact.”
  
  “The Court also finds that the FBI conducted a reasonably adequate search.”  “As detailed in [defendant’s declarations], the FBI searched the [Central Records System (“CRS”)] index and the [Electronic Surveillance (“ELSUR”)] indices which contain records related to electronic surveillance sought, administered, and/or conducted by the FBI since January 1, 1960.”  “While Plaintiffs contend that the FBI should have searched other databases, the law does not require the FBI to search every database.”  “Moreover, in the absence of evidence to the contrary, the Court finds credible [defendant’s] representations that the CRS index and the ELSUR indices were the appropriate databases to search given Plaintiffs’ requests.”
  
  The court also relates that “Plaintiffs ‘attempt[] to use the “oft-used but rarely successful strategy of impugning the adequacy of the search by identifying documents that [they] claim would have been produced had the [DIA and FBI] proceeded properly.”’”  “But, [the court finds that] Plaintiffs’ argument misses the mark. Indeed, the issue is not whether other documents may exist, ‘but rather whether the search for those documents was adequate.’”
   
• Exemption 1 & Exemption 3:  “The Court finds that, based on [defendants’] declarations, the CIA and NSA have justified their Glomar responses.”  The court relates that “[the CIA] stated that [it] ‘refuses to confirm or deny maintaining records that would show a classified association with the CIA in conjunction with Exemptions 1 and 3, because disclosing that fact would tend to reveal “intelligence activities (including covert action), [or] intelligence sources or methods” within the meaning of section 1.4(c) [of Executive Order 13256].’”  “She also details that confirming or denying the maintenance of records would damage national security.”  The NSA “details how [its] Signals Intelligence Activities are classified under FOIA Exemption 1 and protected from disclosure by statute, and thus are encompassed by FOIA Exemption 3.”
  
  The court relates that “Plaintiffs point to five prior disclosures that they claim constitute waivers of the CIA and NSA’s right to issue Glomar responses.”  The court finds that “[t]he first four documents do not reference any of the Plaintiffs by name and in no way constitute an acknowledgement by the CIA or the NSA that they have records relating to Plaintiffs.”  “With respect to the [specified] Clinton Library’s disclosure of [one plaintiff’s] letter to Secretary of State Christopher, this release was by the Clinton Library, not the CIA or the NSA.”  “‘Disclosure by one federal agency does not waive another agency’s right to assert a FOIA exemption.’”  “Plaintiffs nonetheless argue that they can establish official acknowledgment by showing, on the basis of official disclosures, that it is ‘neither logical or plausible’ for the CIA and the NSA to deny the existence of responsive records.”  “Not so.”  “First, [responding directly to plaintiff’s arguments, the court finds that] [ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013)] did not overturn the three-part test set forth in [Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)].”  “As a result, Plaintiffs still must establish that the information requested is as specific as the information previously released, match that which was previously disclosed, and was already made public through an official disclosure.”  “Moreover, the facts in ACLU are distinguishable from the facts presented here.”  “Here, Plaintiffs have not established that the NSA or CIA have openly acknowledged any records about any of the three Plaintiffs.”  “And, unlike ACLU, where the plaintiff was requesting records about a government program, Plaintiffs here seek information about themselves.”
   
• Litigation Considerations, Vaughn Index/Declaration:  “The Court finds that the FBI’s Vaughn index is adequate.”  “It provides the bates numbers for the documents, the date of each document, a description of the documents, the applicable exemptions, and an explanation of each exemption.”
   
• Exemption 1; Exemption 3; Exemption 6; Exemption 7(A); Exemption 7(D); Exemption 7(E):  The court holds that “[defendants’] Motion is granted as to the FBI’s withholding of documents.”  The court relates that “Plaintiffs have not moved to strike the Vaughn index or filed a supplemental brief contesting the exemptions asserted therein.”  “Even so, the Court finds that the FBI has met its burden to justify those withholdings.”  “The FBI withheld documents under FOIA Exemptions 1, 3, 6, 7(A), 7(D), and 7(E).”  “In reviewing [the FBI’s declarations], the Court finds that the FBI has adequately shown that it properly invoked the FOIA Exemptions.”  “In particular, the Court provides substantial weight to [defendant’s] declarations and defers to the FBI’s decision to withhold classified records implicating national security under FOIA Exemptions 1 and 3.”  “Moreover, the Court finds that the FBI has adequately addressed how the withheld documents, if disclosed, would violate federal statutes governing release of information; would cause a clearly unwarranted invasion of personal privacy and could reasonably be expected to constitute an unwarranted invasion of personal privacy; could reasonably be expected to disclose the identity of confidential sources or information provided by confidential sources; and/or would disclose techniques and procedures used for law enforcement investigations, the disclosure of which could reasonably be expected to risk circumvention of the law.”