Schaerr v. DOJ, No. 18-0575, 2020 WL 435455 (D.D.C. Jan. 28, 2020) (Jackson, J.)

Schaerr v. DOJ, No. 18-0575, 2020 WL 435455 (D.D.C. Jan. 28, 2020) (Jackson, J.)

Re:  Request for records concerning two procedures that intelligence agencies must follow regarding collection, retention, and dissemination of information concerning "'unconsenting United States persons,'" called "'unmasking'" and "'upstreaming'"

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 1, Glomar:  "[A]fter thoroughly examining the declarations submitted by the six agencies in support of their motion, the Court finds that the information is properly classified pursuant to an Executive Order and properly falls within FOIA Exemption 1."  "The Court is satisfied that defendants have put forth a 'plausible' and 'logical' argument in support of their Glomar responses."  The court relates that "[t]he six defendants issued Glomar responses under FOIA Exemption 1 in response to parts 2 and 3 of plaintiff's FOIA request, which asked for documents related to unmasking or upstreaming of twenty-one specific individuals between January 1, 2015 to February 1, 2017."  "NSA also issued a Glomar response pursuant to Exemption 1 in response to item 4 of plaintiff's request, which asked for reports made to [organizations within NSA] regarding improper dissemination' of those twenty-one individuals."  The court finds that "each agency has submitted an affidavit from an individual designated as an original classification authority stating that the information is properly classified."  "Plaintiff does not contest the second condition:  that the documents he seeks are owned by, produced by or for, or under the control of the United States government."  "Each affiant avers that disclosing the existence of records about the 'unmasking' or 'upstreaming' of particular individuals pertains to intelligence activities and intelligence sources and methods, which is a category of information that can be classified pursuant to § 1.4 of the Executive Order, and that disclosure of whether or not these documents exist reasonably could be expected to result in damage to national security."  "Each declarant averred that revealing the existence of documents related to unmasking and upstreaming of the twenty-one named individuals would necessarily reveal whether those individuals were identified in intelligence reports, whether the agency possessed any FISA-derived intelligence information on those individuals, whether the agency disseminated any such intelligence information, and whether the agency unmasked, or was asked to unmask, the individuals' identities."  "Each declarant explained that even disclosing whether documents exist could damage national security because it would provide crucial information to adversaries regarding the agency's priorities, interests, capabilities, activities, and methods, and that information could be used against the United States to impair the intelligence community's ability to gather information."  "Each agency's declarant averred that the information was properly classified under Executive Order 13,526."  "Each agency also confirmed that the information at issue was not classified to '[ (1) ] conceal violations of law, inefficiency, or administrative error; [ (2) ] prevent embarrassment to a person, organization, or agency; [ (3) ] restrain competition; or [ (4) ] prevent or delay the release of information that does not require protection in the interest[s] of national security.'"
  
  Regarding plaintiff's arguments concerning official acknowledgment, the court holds that "[n]one of [the] alleged 'official acknowledgements' qualify."  "Congressmen Nunes serves in the legislature, not the executive branch, and does not speak for the agency."  "White House Press Secretary Sarah Sanders served within the Office of the President, which oversees the other executive agencies."  "But the Court need not decide whether the White House Press Secretary is an 'authorized representative of the agency's parent,' because Sanders's statement does not satisfy the other elements of the official acknowledgement test: her general statement referencing the unmasking of 'American citizens' is not 'as specific' or 'match the information' requested about particular individuals."  "James Clapper could speak for the CIA, and Sally Yates could speak for the DOJ, FBI, and NSD, but the statements by these individuals similarly do not satisfy the other elements of the test. The testimony of James Clapper and Sally Yates suffers from the same deficiency as Sanders's statement."  "Finally, statements by the President qualify as statements by an 'authorized representative of the agency's parent,' . . . but the President's tweets regarding unmaskings were not a confirmation of the existence of documents responsive to plaintiff's FOIA request, because the tweets only generally refer to unmasking."  "The official statements must 'leave no doubt' that the agency possesses the requested records."
   
• Exemption 3:  The court holds that "Defendants, except for NSD, have also justified their Glomar responses to parts 2 and 3 of plaintiff’s request under FOIA Exemption 3."  "Because each agency's declaration identifies the statute that excludes the information and establishes that the information falls within the statute's scope, the Court finds that FOIA Exemption 3 was properly invoked."
   
• Litigation Considerations, Adequacy of Search:  Regarding the FBI's search, the court finds that "[t]he description of the search is too cursory to persuade the Court that the search was adequate."  "Although the declaration identifies the office to which the request was forwarded and why that office would be a likely location of the records sought, it fails to explain how [defendant] conducted its search, what systems or files were searched, whether it searched any hard copy files or only electronic files, and why using search terms would not be effective."  Regarding the NSA, the court finds that "[the] description of the agency's search does not assure the Court that the search was reasonably calculated to uncover responsive documents."  "The declaration does not detail what files or repositories were searched, whether hard copy or physical documents were searched, and through what processes the documents were searched."  Regarding NSD, the court finds that it did not conduct an adequate search.  The court finds that "the agency fully explained why certain components were searched but it gave no grounds for why no other components were involved."  "Also, NSD did not conduct an adequate search because it did not search all systems that could have responsive materials."  Regarding ODNI, "[t]he Court finds that this search was adequate because the declaration set forth that the groups likely to contain responsive materials were identified and searched, which systems were searched, and the process that was utilized."  Regarding the State Department, "[t]he Court finds that this search was adequate because it set forth, in reasonable detail, the groups identified to have responsive documents and the search methods and processes used."  Regarding the CIA, "[t]he Court finds that CIA's affidavit is reasonably specific because it details the locations searched, who conducted the search, and the search processes."  "The CIA conducted an adequate search that was reasonably calculated to uncover all relevant documents."