Willis v. NSA, No. 17-2038, 2019 WL 1924249 (D.D.C. Apr. 30, 2019) (Jackson, J.)

Willis v. NSA, No. 17-2038, 2019 WL 1924249 (D.D.C. Apr. 30, 2019) (Jackson, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion to compel Vaughn Index

• Exemptions 1 & 3, Glomar:  "[T]he Court has concluded that NSA properly refused to confirm or deny the existence of any intelligence records responsive to [plaintiff's] FOIA/Privacy Act request."  First, regarding Exemption 1, the court relates that "NSA relies on Executive Order 13,526, Classified National Security Information (Dec. 29, 2009) . . . ."  "[The] Court concludes that NSA's Glomar response to [plaintiff's] records request is logically and plausibly rooted in national security concerns regarding the revelation of classified information (i.e., NSA's intelligence collection efforts, when FOIA requests such as these are viewed collectively) and, therefore, to the extent that [plaintiff's] request sought NSA intelligence information about herself, NSA's response does not violate the FOIA or the Privacy Act."  Second, regarding Exemption 3, the court relates that "NSA invokes three separate statutes as justifying its Exemption 3 withholdings."  "First, it points to Section 6 of the National Security Act of 1959, which provides in relevant part that 'nothing 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 relies on 18 U.S.C. § 698, which makes it a federal crime to disclose 'the communication intelligence activities of the United States or any foreign government[,] or obtained by the processes of communication intelligence from the communications of any foreign government[.]'"  "Third and finally, NSA points to Section 102A(i)(1) of the National Security Act of 1947, which requires the Director of National Intelligence to 'protect intelligence sources and methods from unauthorized disclosure.'"  The court finds that "[defendant] has stated that '[t]he information at issue here falls squarely within the scope of several statutes.'"  "Specifically, the act of disclosing whether or not any intelligence files pertaining to [plaintiff] exist purportedly would reveal 'information about NSA's [signals intelligence] efforts [that] directly relates to the Agency's core functions and activities and to intelligence sources and methods[,]' . . . and thus would implicate the proscriptions of Section 6 of the National Security Act."  "[Defendant] further states that confirmation of the existence of such files would reveal classified information 'concerning the communications activities of the United States' in violation of 18 U.S.C. § 798."  "Finally, [defendant] explains that indicating whether NSA has any intelligence files on [plaintiff] would reveal NSA intelligence sources and methods in contravention of Section 102A(i)(1) of the National Security Act of 1947."  "[T]the Court accepts the agency's statements in this regard, and it finds that NSA has established that the agency's Exemption 3 Glomar response does not violate the FOIA . . . ."
   
• Litigation Considerations, Adequacy of Search:  "Based on the uncontested details laid out in the declaration that NSA has submitted, [the] Court easily finds that NSA liberally and reasonably construed [plaintiff's] records request, and that it conducted a reasonable search of its Privacy Act files and FOIA litigation files for responsive records."  The court relates that "the agency searched 'its affiliate-related PA systems of record for any records containing [plaintiff's] name and social security number.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[i]n cases such as this one – i.e., where a Glomar response is appropriate – 'the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents[,]' . . . and because the agency has not searched for any information, there is nothing to index."  "Likewise, there is nothing for NSA to index with respect to [plaintiff's] request for non-intelligence files under the Privacy Act, because NSA's searches did not locate any responsive documents, and the agency is therefore not withholding any records."