N.Y. Times Co. v. U.S. Def. Counterintelligence & Sec. Agency, No. 25-2333, 2025 WL 2855339 (S.D.N.Y. Oct. 8, 2025) (Cote, J.)

N.Y. Times Co. v. U.S. Def. Counterintelligence & Sec. Agency, No. 25-2333, 2025 WL 2855339 (S.D.N.Y. Oct. 8, 2025) (Cote, J.)

Re: Request for two-page document listing any security clearances granted to Elon Musk

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

• Exemption 6: The court finds that “[the United States Defense Counterintelligence and Security Agency (“DCSA”)] failed to meet its burden of demonstrating that the two-page description of Musk’s security clearances, if any, may be withheld under Exemption 6.”  “The parties do not dispute that the list qualifies as a ‘similar file’ and satisfies the step one inquiry, since, by definition, it contains ‘personal information identifiable’ to Musk alone.”  “[Defendant’s] argument fails, however, at the step two balancing inquiry, where the record evidence establishes that any privacy interest of Musk’s is outweighed by the substantial public interests in disclosure.” “First, to the extent Musk has a privacy interest in the fact that he holds a security clearance, he has waived it.” “He has discussed publicly that he holds a ‘top secret clearance’ and, in doing so, has ‘diminished’ any privacy interest he held in that fact.”  “Musk’s diminished privacy interest is underscored by the limited information plaintiffs sought in their FOIA request.”  “Plaintiffs do not seek any questionnaire Musk may have submitted to obtain a security clearance.”  “Nor do they ask for any investigative files or information compiled during the adjudication process.”  “Plaintiffs seek only a ‘list’ of his security clearances and details about ‘the effect and purview’ of each of the clearances.”  “DCSA argues that Musk’s public statements do not address whether any security clearance he may have been granted was subject to conditions or waivers, and that it is not possible to redact from the responsive two-page document ‘any information regarding conditions and waivers’ since that information is not contained in a single field in the document.”  “As a result, any condition or waiver ‘would likely be noted in several places on the form, and those notations would not be present unless a condition or waiver exists.’”  “Accordingly, DCSA contends, a disclosure, even with redactions, will reveal whether a security clearance was granted with or without conditions or a waiver.”  “It is true that Musk has not publicly discussed whether his security clearance is subject to any conditions or waivers and, if so, what those conditions or waivers entail.”  “Musk has, however, publicly discussed his drug use, NASA’s requirement that he submit to random drug testing due to his drug use, and his contacts with foreign leaders.”  “His posts on X on these topics have collectively garnered over 2 million views.” “And it is undisputed that drug use and foreign contacts are two factors DCSA considers when determining whether to impose conditions or waivers on a security clearance grant.”  “DCSA fails to explain why, given Musk’s own, extensive disclosures, the mere disclosure that a condition or waiver exists (or that no condition or waiver exists) would subject him to ‘embarrassment or humiliation.’” “DCSA also attempts to justify its withholding by explaining that its ‘regular practice and policy’ is to withhold information regarding an individual’s security clearance, barring a ‘privacy waiver’ from the individual.”  “DCSA also notes that Musk’s public statements would not qualify as such a waiver under DCSA policy.”  “But DCSA’s internal policies do not control the FOIA exemption analysis.”
  
  “Moving on to the other side of the balancing inquiry, there are at least two significant public interests at play.”  “First, the public has an interest in knowing whether the leader of SpaceX and Starlink holds the appropriate security clearances.”  “Second, courts have repeatedly recognized a public interest in understanding the thoroughness, fairness, and accuracy of government investigations and operations.”  “Musk’s numerous public statements regarding his own drug use and contacts with foreign leaders only enhance the public interest in disclosure.” “DCSA has a duty of ‘continuous vetting’ to ensure that individuals granted security clearances ‘continue to meet clearance requirements and should continue to hold positions of trust.’”
  
  “The final step is to balance the two interests:  any privacy interest Musk holds and the public’s interests in gaining insight into DCSA’s adjudicative process and knowing whether Musk holds a security clearance.”  “In this case, the relative magnitudes of the interests identified are sufficient to decide the balancing question.”  “The Government does not dispute that Musk’s public statements diminished any privacy interest he had in the fact that he holds a security clearance.” “And, as explained above, DCSA has not established that Musk holds a more than de minimis privacy interest in the existence or non-existence of conditions or waivers on that security clearance.”  “Thus, DCSA has not met its burden of demonstrating that any privacy interest remaining after Musk’s public statements outweighs the substantial public interests in disclosure, such that disclosure would constitute ‘a clearly unwarranted invasion of personal privacy.’”
   
• Exemption 7(C): The court relates that “DCSA also seeks to withhold the document under FOIA Exemption 7(C).”  “The parties dispute whether the requested record was ‘compiled for law enforcement purposes.’”  The court finds that “[i]t is unnecessary to resolve that threshold issue because the Exemption 7(C) inquiry can be resolved on the step two balancing test alone.”  “As explained in more detail above, DCSA has not met its burden to prove that Musk’s privacy interest outweighs the significant public interests in disclosure.” “Even applying Exemption 7(C)’s more privacy-protective standard, DCSA has failed to establish that disclosure of the requested document ‘reasonably can be expected to constitute an unwarranted invasion of [Musk’s] personal privacy,’ . . . given Musk’s own public statements, the narrow scope of plaintiffs’ FOIA request, and the substantial public interests at stake.”  “Moreover, to the extent any detail in the document invades Musk’s personal privacy beyond the issues discussed here, the defendant may propose redactions for the Court’s ex parte, in camera review.”