New York Times Co. v. NSA, No. 15-2383, 2016 WL 4508363 (S.D.N.Y. Aug. 25, 2016) (Forrest, J.)

Thursday, August 25, 2016

New York Times Co. v. NSA, No. 15-2383, 2016 WL 4508363 (S.D.N.Y. Aug. 25, 2016) (Forrest, J.)

Re: Request for all NSA Inspector General Reports concerning certain FISA-related topics

Disposition: Granting defendant's motion for summary judgment; denying plaintiffs' motion for summary judgment

  • Exemption 1: The court holds that "[defendant's declarant's] declaration . . . contains a detailed, logical, and plausible explanation for why the challenged redaction in the [pen register/trap and trace provision] Report fits within FOIA Exemption 1." The court finds that "[defendant's declarant] specifically affirmed that the information is currently and properly classified Top Secret, and explained that the withheld portion of the report includes details about the National Security Agency's capabilities and limitations which, if revealed, would tend to inform adversaries about both the likelihood that specific communications were captured in the past and the efficacy of certain countermeasures." "[Defendant's declarant's] declaration also states that the withheld information includes operational details about the technical means and analytic methods by which the NSA collected metadata, and that revealing these details would, among other things, both reveal the government's knowledge of specific tradecraft practiced by adversaries and assist adversaries' efforts to develop their own metadata collections programs targeting the United States." Responding to plaintiff's counter-arguments, the court finds that "the fact that the specific program at issue is no longer operational does not answer the question of whether the redacted information is properly classified[,]" "disclosures to date are not of the kind that would suggest no identifiable harm could come from further disclosure[,]" and the withheld portions are "not so general that the harm anticipated in [defendant's declarant's] declaration becomes illogical or implausible."

    For similar reasons, "the Court concludes that the NSA's explanation for its continued redaction of a paragraph on page one of the § 702 Controls Report is logical, plausible, and contains the requisite reasonable detail to carry the Agency's burden of proving the applicability of FOIA Exemption 1." The court relates that, according to defendant, "[t]his information . . . 'pertains to the number and categories of certifications made pursuant to Section 702 of the FAA[]'" and that "revealing such information would reveal important details about the scope and limitation of the Agency's § 702 program which would both provide insight as to the likelihood that prior communications were intercepted and as to potential manners of tailoring future communications in order to evade searches under this ongoing authority." The court reaches the same result as to the withholding of "technical aspects and procedures of NSA's collections under § 702" and specifically points to defendant's declarant's explanation that "this [material] contains granular technical details about improving collection procedures and methods."
  • Litigation Considerations, In Camera Inspection: The court holds that "[u]nder the facts of this case, [the court's] task can be, and properly is, carried out without in camera review of classified materials." The court finds that "[defendant's declarant's] declaration articulated a reasonably detailed explanation for the redactions which was both logical and plausible." "It did so in a way that served its functional purpose by permitting [plaintiff] to meaningfully, and fairly specifically, challenge the proffered explanations." Additionally, the court finds that "there is no evidence that contradicts [defendant's] declaration." "Nor does the declaration confine itself to boilerplate recitations of the statutory requirements; instead, it is quite detailed." "There is also no evidence from which one could infer bad faith on the part of the Agency; to the contrary, the Agency has turned over documents which have led to published stories, have turned over supplemental documents following discussions with [plaintiff] after the initial disclosures, and is not even alleged to have conducted an inadequate search for records."
District Court
Exemption 1
In Camera Review
Litigation Considerations
Updated January 19, 2017