Platsky v. NSA, No. 15-1529, 2016 U.S. Dist. LEXIS 86171 (S.D.N.Y. July 1, 2016) (Carter, Jr., J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that, "[b]ased on the declarations, and on [plaintiff's] own statement that he will 'pass by the defendants' assertions that they conducted an adequate search for records concerning an open and acknowledged relationship between [him] and the defendant agencies, as . . . all agree that there has never been such a relationship' . . . , the Court grants summary judgment to Defendants on the issue of the adequacy of the searches performed."
- Exemption 3, Glomar: The court holds that "NSA's Glomar response was appropriate." The court relates that "NSA identifies three withholding statutes within the bounds of Exemption 3: (1) Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605; (2) 18 U.S.C. § 798; and (3) the National Security Act of 1947, as amended by the Intelligence Reform and Terrorist Prevention Act of 2004, 50 U.S.C. § 3024." "The Court need only consider Section 6 here, as it is sufficient to sustain the Glomar response." "'Section 6 states that no law shall be construed to require the disclosure of any information with respect to the activities of the NSA.'" The court finds that, "[w]hile the statute should not be read so broadly as to exempt the NSA entirely from FOIA, . . . the 'very nature of [plaintiff's] request – which seeks records concerning whether [his] communications were monitored by the NSA – establishes that any response would reveal "information with respect to the activities" of the NSA.'" "Thus, the NSA's Glomar response was appropriate."
Additionally, the court finds that "CIA's response is justified under Exemption 3" because "[t]he declaration is sufficiently detailed to show that the requested information logically falls within the claimed exemptions." The court relates that "CIA identifies two withholding statutes as the basis of its Glomar response: (1) Section 102A(i)(1) of the National Security Act, as amended, 50 U.S.C. § 3024; and (2) the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507." "'Section 102A(i)(1) of the National Security Act of 1947 . . . requires that the Director of National Intelligence protect intelligence sources and methods from unauthorized disclosure.'" "'Section 6 of the Central Intelligence Agency Act. . . provides that, "in the interests of the security of the foreign intelligence activities of the United States and in order further to implement the Director of National Intelligence's responsibility for protecting intelligence sources and methods from unauthorized disclosure, the CIA shall be exempted from the provisions of any law that require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency."'"
- Litigation Considerations, Vaughn Index/Declaration: Responding to plaintiff's argument, the court finds that "allegations grounded in mere speculation are insufficient to rebut the presumption of good faith."
- Exemption 1: The court finds that "[b]ecause Exemption 3 furnishes a separate and independent ground in support of a Glomar response, the Court need not consider the applicability of FOIA Exemption 1." "Thus, the Court need not consider Plaintiff's argument that the records he seeks are no longer classified because they are older than ten years."
- Exemption 7(E), Glomar: "[The] Court concludes that 'the FBI properly tethered its Glomar response to Exemption 7(E), which protects information compiled for law enforcement purposes.'" The court finds that "[t]he information contained in the declaration is logical and plausible, and thus it is sufficient to establish that the FBI's Glomar response was proper." "[Plaintiff] does not rebut the presumption of good faith." "That the existence of the No Fly List is public knowledge and that some people on the No Fly List come to know of their presence on it does not change the Court's analysis, contrary to [plaintiff's] arguments." "This is because 'Exemption 7(E) applies even when the identity of the techniques has been disclosed, but the manner and circumstances of the techniques are not generally known, or the disclosure of additional details could reduce their effectiveness.'"
- Litigation Considerations, Relief: The court holds that plaintiff's "request that the Court 'order the Department of Justice to inspect the files of all three defendants to insure that they are not violating' an executive order . . . is outside the scope of relief permitted under FOIA." "'When, as here, a court finds that the government's public affidavits sufficiently allege the necessity of a Glomar response, ex parte and in camera review of additional, confidential material is unnecessary and beyond the role assigned to the judiciary by applicable law.'" "It follows that it is beyond the role assigned to the judiciary to order an executive agency to perform such review on its behalf."