Poulsen v. DOD, No. 17-03531, 2019 WL 1318380 (N.D. Cal. Mar. 22, 2019) (Orrick, J.)

Poulsen v. DOD, No. 17-03531, 2019 WL 1318380 (N.D. Cal. Mar. 22, 2019) (Orrick, J.)

Re:  Request for surveillance of President Donald J. Trump or any of his advisors during the 2016 election campaign

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 1 & 3, Glomar:  "[W]ith respect to all of the Agencies, [plaintiff] has not met the test for an official acknowledgment sufficient to waive ODNI and NSA's ability to assert a full Glomar response and the FBI, NSD, and OLC's ability to assert partial Glomar responses to his Requests."  "The Agencies have shown – particularly in respect to the acknowledged existence of an ongoing investigation – that harms that would result from requiring them to provide any substantive response and that those harms are protected against by both Exemptions 1 and 3."
   
  "To start, [the court] assume[s] without deciding that tweets and apparently off-handed comments by the President (in other words comments not issued as intentional and express governmental disclosures) can be disclosures constituting 'official acknowledgments' sufficient to waive a Glomar response[.]"  "However, other than for the Page FISA materials which have been acknowledged and processed for release under FOIA, none of the President's tweets or comments satisfy the specificity and matching criteria."  "[The court] agree[s] with the Agencies that the President's very general tweets and comments do not disclose the existence of the specific documents sought in [plaintiff's] Requests."  "There is no disclosure establishing that any of the specific documents sought by [plaintiff] exists, much less a match between the disclosures and the specific electronic surveillance information sought by [plaintiff]."  "As to the DOJ's general acknowledgement of the investigation into links between Russia and the Trump campaign through Comey's testimony and the disclosure of the investigation being handled by Special Counsel Mueller, those disclosures do not match the information sought."  "Finally, [plaintiff's] reliance on facts the government has alleged or admitted in court filings in connection with the prosecutions of Flynn and Papadopoulos are no more helpful."  "[Plaintiff] does not identify the significance of specific facts disclosed in those filings other than supporting what is otherwise known, that the Special Counsel has investigated members of the Trump campaign for a link to or coordination with the Russian government."  "Those general disclosures in no way match the specific information regarding electronic surveillance sought by [plaintiff]."  Also, "[t]he very general official acknowledgments regarding the ongoing investigation, the one specific acknowledgment of surveillance of Carter Page, and the Special Counsel's prosecutions do not preclude the Agencies from asserting Glomar to protect disclosure of whether and how they are each involved in that investigation, and whether their participation in that investigation has used specific types of surveillance and produced specific types of intelligence."
   
  Additionally, regarding the harm at issue, the court finds that "the [ODNI and NSA] declarations provide sufficient detail regarding the withheld information to make the Exemption 1 assertions plausible."  "[ODNI] states that providing any substantive response to [plaintiff] would 'reveal a classified fact and intelligence sources or methods – namely, whether IC has an intelligence interest in a particular individual, whether the IC is conducting particular intelligence activities, whether the IC utilizes particular intelligence sources or methods, and whether foreign intelligence information was in fact obtained through electronic surveillance efforts.'"  "Recognizing the court's 'limited institutional expertise on intelligence matters,' [the court] accord[s] substantial weight to the [ODNI and NSA] declarations."  Additionally, the court relates that "ODNI and NSA rely on three specific statutory provisions as a basis for the Exemption 3 withholdings."  "First, both agencies invoke Section 102A(i)(1) of the National Security Act of 1947, as amended (codified at 50 U.S.C. § 3024(i)(1))."  "That provision requires the Director of National Intelligence to 'protect intelligence sources and methods from unauthorized disclosure.'"  "Second, NSA also invokes the statutory privilege contained in Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605."  "Section 6 provides that '[n]othing in this chapter or any other law. . . shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof . . . .'"  "NSA also invokes Section 798 of Title 18, which prohibits the unauthorized disclosure of classified information (i) concerning the communications intelligence activities of the United States or (ii) obtained by the process of communications intelligence derived from the communications of any foreign government."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "[plaintiff's] arguments concerning the adequacy of the searches by the responding Agencies fail."  Responding to plaintiff's timeframe objection, the court finds that, "as the government points out, the request sought records related to surveillance during the campaign; only documents created during the campaign are responsive and the government's use of a November 8, 2016 cutoff was reasonable."  Additionally, responding to plaintiff's more general requests, the court finds that "[t]here is no duty on an agency to 'search' for records about which it properly asserts a Glomar response."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that, "[a]s to the specificity of the declarations, [the court has] reviewed each one."  "Each is adequately detailed and as specific as possible, given the national security and law enforcement operations."  "As to the classified materials, [the court] realize[s] that [plaintiff] has not seen them."  "[The court has]."  "[The FBI's] classified explanations and the second classified submission provide specific, plausible, and significant reasons supporting the declarants' assertions that harms that would flow if the withheld materials were disclosed and the DOJ Agencies' partial Glomar responses not allowed."
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[w]here, as here, the Agency declarations are sufficiently detailed and persuasive and there is no evidence of bad faith, and in light of the national security context and the ongoing investigation, in camera review is not justified."