Project for Priv. & Surveillance Accountability, Inc. v. DOJ, No. 22-5303, 2025 WL 2013623 (D.C. Cir. July 18, 2025) (Millett, J.)

Project for Priv. & Surveillance Accountability, Inc. v. DOJ, No. 22-5303, 2025 WL 2013623 (D.C. Cir. July 18, 2025) (Millett, J.)

Re: Request for records concerning upstreaming and unmasking of forty-eight named current and former members of congressional intelligence committees, from January 1, 2008, to January 15, 2020

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Exemption 1, Glomar Response:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] argues that the agencies’ Glomar responses were insufficient for two reasons.”  “First, [the requester] insists that FOIA requires agencies to search for records prior to issuing Glomar responses.”  “Second, [the requester] contends that its FOIA requests are broad enough to encompass some records that are not justifiably withheld under the cited exemptions, making a categorical Glomar response improper.”  The court finds that “[n]either argument succeeds.”  “[The requester] first argues that the agencies were obligated to search for records prior to issuing their Glomar responses.”  “Requiring agencies to search for records, and then report the outcome of that search, would inevitably confirm or deny the existence of responsive records, which is precisely what a Glomar response is designed to avoid.”  “That process has no application in a Glomar case because an agency could not even disclose the outcome of its search without defeating the point of its Glomar response.”
  
  “[The requester] separately argues that the agencies did not properly invoke Glomar in this case.”  “As the district court concluded, Exemption 1 supports each agency’s Glomar response in this case.”  “Each agency submitted an affidavit explaining that disclosing whether it had records concerning the upstreaming or unmasking of any individuals listed in the FOIA request during the specified time periods would gravely harm national security and intelligence activities.”  “The agencies then explained that such harm would result because the records would reveal whether that agency had – or had not – intercepted communications of one or more of the named persons through FISA surveillance, the time period in which the surveillance was undertaken, and whether intelligence reports about FISA surveillance identified those persons.” “Those disclosures, in turn, would reveal information about the scope of FISA surveillance during the designated years.” “In particular, the disclosures could inform individuals interacting with the listed members of Congress either that those individuals were being monitored, allowing them to take evasive activities, or that they were not being monitored, revealing gaps in the government’s surveillance methods.”  “Each agency also explained that disclosing the existence or non-existence of such records would reveal agency intelligence priorities, capabilities, activities, and methods.”  “[D]isclosure of the existence or nonexistence of records capturing communications of the listed individuals would reveal areas where the agencies had a lack of interest, inability to obtain information, or general gaps and limitations in their capabilities during the relevant time period.”  “The agencies added that disclosing whether responsive records exist would give ‘targets, their cohorts, foreign intelligence agencies, and others intent on interfering with [these] investigative efforts information necessary to take defensive actions to conceal criminal activities,’ as well as to ‘develop and implement countermeasures to elude detection.’” “The affidavits explain that even piecemeal disclosures can provide targets with ‘a guide or “road map” that instructs them on which communication modes or personnel remain secure’ and which do not.”  “In addition, the State Department’s affidavit explained that ‘[o]fficial public disclosures . . . acknowledge only that the [NSA] engages in upstream collection[,]’ meaning that as to all of the other agencies, disclosing whether they have responsive records could reveal whether or not they even engage in upstreaming, or would at least ‘provide information about how intelligence is shared, analyzed, and used’ among the agencies.”  “[The requester] nonetheless argues that its FOIA requests are broad enough to encompass ‘policy documents’ that would not merit withholding under Glomar.” “That argument fails for the simple reason that [the requester’s] FOIA requests do not seek any such generic policy documents.”  “Instead, the FOIA requests seek exclusively ‘documents, reports, memoranda, or communications regarding’ the ‘unmasking’ and ‘upstreaming’ – ‘including all requests’ for ‘unmasking’ and ‘upstreaming’ – only ‘of any person’ on the list of named individuals, and even then, only for the January 1, 2008 to January 15, 2020 time period.”  “So [the requester’s] requests are, by their own terms, limited to documents regarding the unmasking and upstreaming of named individuals during certain years.” “Nothing more.”  “As a result, the requests are not written to encompass general policy documents.”
  
  The court also finds that “[e]ach agency’s affidavit showed that the declarant had original classification authority under the Order.” “That ‘removes any doubt that a person with original classification authority has approved the classification decision[.]’”  “[The requester] invokes two other provisions of the Executive Order – Sections 1.5 and 1.6. Neither affects the validity of the Glomar responses.”  “First, Section 1.5 provides that, ‘[a]t the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information.’”  “[The requester] is correct that no such date was set at the time of classification.” “But setting such a date is not a procedural precondition to the original classification under the Order.”  “It is a requirement that attaches ‘[a]t the time of original classification’ – that is, once classification has occurred.”  “It is not part of the process of establishing a permissible basis for classification.”  “That makes sense.”  “Until a classification judgment is validly made, there is no need for a declassification date.”  “In sum, to properly invoke Exemption 1, the agencies were required to show that their Glomar facts were ‘properly classified pursuant to’ the Executive Order, not that they met every post-classification requirement in the Order.”  “The issue here is simply one of ordering.”  “And because nothing in the Executive Order mandates that a declassification date be set before information can validly be classified, any delay in setting that date here is beside the point.”  “[The requester] also relies on Section 1.6 of the Order, which provides that, ‘[a]t the time of original classification,’ the agency must mark the classification level, the original classification authority, the agency and office of origin, declassification instructions, and a concise reason for classification.” “Like Section 1.5, Section 1.6 sets requirements that occur ‘at the time of original classification,’ but are not themselves part of the process for the original act of classification.”  “And while the Order defines ‘classified information’ in part as ‘information that . . . is marked to indicate its classified status when in documentary form[,]’ that requirement, by its very terms, only applies when the classified information is ‘in documentary form.’”  “That marking requirement cannot apply to the Glomar fact at issue here – the fact that any response would imperil national security and intelligence operations – since no markings can be made when the relevant fact takes the form not of a physical document, but of an abstract expert mental judgment made by the original classifier who works at the agency.”