Opinion
Civil Action No. 18-cv-01525-RM-KMT
08-24-2020
RYAN GALLAGHER, Plaintiff, v. NSA-NATIONAL SECURITY AGENCY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on "Defendant's Motion for Summary Judgment" (Doc. No. 95 [Mot.], filed December 16, 2019). Plaintiff did not respond to the motion.
BACKGROUND
This case arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Plaintiff filed a FOIA/Privacy Act Request with the National Security Agencey ("NSA") in October 2016, seeking "ANY Records that Agency has from PRISM or other Spying on me, ... any agency, any spying." (Doc. No. 96 [Moving Party's Undisputed Material Facts] ("MSUMF"), ¶¶ 5-6.) The NSA interpreted this as a request for intelligence records in the NSA's possession relating to Plaintiff. (Id., ¶ 7.)
On October 21, 2016, the NSA issued what is known as "Glomar" response in response to Plaintiff's request. (Id. ¶¶ 8-12.) A Glomar response is one that refuses to confirm or deny the existence of responsive records, because the existence or non-existence of such records is itself a fact whose disclosure would cause cognizable harm under, or otherwise implicate, the FOIA or Privacy Act exemptions. (Id., ¶ 12.) In responding to Plaintiff's request, the NSA explained that (1) whether the NSA maintains intelligence records relating to specific individuals constitutes classified information pursuant to Executive Order 13526 ("Classified National Security Information"), and is thus protected under FOIA Exemption 1 and Privacy Act Exemption (k)(1); and (2) the information is also protected under FOIA Exemption 3, which authorizes the withholding of information protected from disclosure by statute. (Id. ¶¶ 9-11.) Accordingly, the NSA denied Plaintiff's request for intelligence records relating to himself. (Id., ¶ 13.)
The term "Glomar response" has its origin in a case involving a FOIA request for information on the "Glomar Explorer" submarine. See Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976). --------
Several months later, Plaintiff sent an email to the NSA expressing disagreement with the NSA's response. (Id., ¶ 14.) The NSA construed this email as an administrative appeal. (Id. ¶ 15.) In June 2017, the NSA issued an appeal decision upholding its previous Glomar response on the same basis it had previously articulated to Plaintiff. (Id., ¶¶ 15-16.)
Plaintiff initiated this action on June 18, 2018. (Doc. No. 1 [Compl.].) On August 6, 2018, he filed an Amended Complaint that contained two claims. (Doc. No. 14 [Am. Compl.]) Plaintiff's first claim challenged the NSA's FOIA/Privacy Act response on the ground that the NSA had "improperly invoked" its "claim of classification" over the information Plaintiff requested. (Id. at 4.) Plaintiff's second claim challenged the constitutional validity of four intelligence-related statutes. (Id. at 5.) The second claim was dismissed from the action on October 15, 2019. (See Doc. No. 92.)
Accordingly, only the first claim challenging the propriety of the NSA's Glomar response remains. As relief on this claim, Plaintiff asks the Court to "make a determination" regarding whether the NSA's Glomar response was proper, and to order the NSA to release "relevant documents" responsive to his FOIA/Privacy Act request. (Compl. at 6.) Defendant moves for summary judgment on Plaintiff's remaining claim. (Mot.)
STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. The following axioms have a bearing on summary judgment disposition—i.e., (1) that "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); (2) "the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue" id. at 256; and (3) "the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor." Id. at 257.
Moreover, because Plaintiff is proceeding pro se, the court, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312. B. Freedom of Information Act
"In general, FOIA request cases are resolved on summary judgment." See World Publishing Co. v. U.S. Dep't of Justice, 672 F.3d 825, 832 (10th Cir. 2012). Courts may award summary judgment in FOIA cases based solely upon the information provided in affidavits or declarations. See World Publishing Co., 672 F.3d at 832 (observing that a court may grant summary judgment based on declarations); Hull v. IRS, 656 F.2d 1154, 1178 (10th Cir. 2011) ("To satisfy its burden of proof under FOIA, an agency typically submits affidavits."). "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (cited by the Tenth Circuit with approval in Trentadue v. FBI, 572 F.3d 794, 808 (10th Cir. 2009)). If the affidavits "'provide specific information sufficient to place the documents within the exemption 5 category, if the information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate.' " Hull, 656 F.2d at 1177-78.
In addition, in cases implicating national security issues, such as this one, courts accord even greater weight to agency declarations. See Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (courts "must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record"). This is "[b]ecause courts 'lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case.' " Id. (citation omitted); see also Ctr. for Nat. Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003) (recognizing the "propriety of deference to the executive in the context of FOIA claims which implicate national security." (citing Zadvydas v. Davis, 533 U.S. 678, 696 (2001)); Trentadue v. FBI, No. 2:12-cv-974 DAK, 2015 WL 3606068, at *2 (D. Utah June 8, 2015) ("Courts have routinely and repeatedly emphasized that 'weighing the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the nation's intelligence-gathering process' is a task best left to the Executive Branch and not attempted by the judiciary.") (quoting CIA v. Sims, 471 U.S. 159, 180 (1985)). C. Privacy Act
The Privacy Act, 5 U.S.C. § 552a, "governs the government's collection and dissemination of information and maintenance of its records." Gowan v. U.S. Dep't of Air Force, 148 F.3d 1182, 1187 (10th Cir. 1998). Under the Privacy Act, each agency that maintains a "system of records" must, upon request by any individual "to gain access to his record or to any information pertaining to him contained in the system," permit that individual to review his records and to have copies made of those records. See 5 U.S.C. § 552a(d)(1).
The Privacy Act also permits agencies to exempt certain records from the requirements of § 552a(d). See 5 U.S.C. § 552a(j)-(k). As relevant to this case, records exempt from disclosure under FOIA Exemption 1 are also exempt under the Privacy Act. 5 U.S.C. § 552a(k)(1). When an agency moves for summary judgment on the basis of a statutory exemption under the Privacy Act, it "bears the burden of sustaining its decision to claim an exemption from disclosure." Wheeler v. CIA, 271 F. Supp. 2d 132, 136 (D.D.C. 2003) (citing 5 U.S.C. § 552a(g)(3)(A)). Like in the FOIA context, under the Privacy Act, "the Court may rely on agency affidavits or declarations" in determining whether summary judgment is warranted. Mobley v. CIA, 924 F. Supp. 2d 24, 36 (D.D.C. 2013); accord Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (holding that "[i]n a suit seeking agency documents—whether under the Privacy Act or FOIA—'at the summary judgment stage . . . the court may rely on a reasonably detailed affidavit'").
ANALYSIS
A. NSA's Glomar Response
In response to Plaintiff's FOIA/Privacy Act request, the NSA issued a Glomar response explaining that it could neither confirm nor deny the existence of responsive records. (MSUMF, ¶¶ 8-12.)
The Glomar doctrine reflects the principle that an agency may refuse to confirm or deny the existence of certain records where disclosure of those records' existence or nonexistence would implicate a cognizable harm under FOIA or the Privacy Act. See Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009). The Tenth Circuit has never specifically endorsed the Glomar doctrine. However, "government use of the Glomar response is firmly established in other Circuits." Id. (approving the application of the Glomar doctrine in the Second Circuit); see also Wadhwa v. Sec'y United States Dep't of Veterans Affairs, 707 F. App'x 61, 64 (3d Cir. 2017) (affirming that a "'Glomar response' is an 'exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information'"); Taylor v. Nat'l Sec. Agency, 618 F. App'x 478, 482 (11th Cir. 2015) (upholding district court's conclusion that the NSA properly issued a Glomar response); Larson v. Dep't of State, 565 F.3d 857, 861-62, 870 (D.C. Cir. 2009) (affirming NSA's use of the Glomar response pursuant to FOIA Exemptions 1 and 3); Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 442 (1st Cir. 2006) (upholding district court's grant of summary judgment in favor of the defendants, where defendants had issued a Glomar response); Bassiouni v. Cent. Intelligence Agency, 392 F.3d 244, 246 (7th Cir. 2004) ("Every appellate court to address the issue has held that the FOIA permits the CIA to make a 'Glomar response' when it fears that inferences from Vaughn indexes or selective disclosure could reveal classified sources or methods of obtaining foreign intelligence."); Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800-02 (9th Cir. 1996) (allowing CIA to invoke the Glomar doctrine in response to a FOIA request seeking employment records of an alleged CIA operative).
The Glomar doctrine is thus "well settled" as a proper response to a FOIA or Privacy Act request, "because it is the only way in which an agency may assert that a particular ... exemption covers the 'existence or nonexistence of the requested records' in a case in which a plaintiff seeks such records." Wilner, 592 F.3d at 68 (applying Glomar doctrine in the context of a FOIA request); Taylor, 618 F. App'x at 482 (approving use of Glomar doctrine in response to a Privacy Act request); Mobley, 924 F. Supp. 2d at 45-52 (upholding Glomar response to plaintiff's FOIA/Privacy Act request).
To properly assert a Glomar response, "an agency must 'tether' its refusal to respond" to a specific statutory exemption. Id. (internal citation omitted). "FOIA expressly recognizes that 'important interests are served by its exemptions,' . . . and 'those exemptions are as much a part of FOIA's purposes and policies as the statute's disclosure requirement.' " Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (citation omitted); see also Mobley, 924 F. Supp. 2d at 34 (noting that the FOIA's general interest in transparency "must be tempered . . . by the 'legitimate governmental and private interests [that] could be harmed by release of certain types of information' " (quoting United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010)). Thus, "a government agency may issue a 'Glomar Response,' that is, refuse to confirm or deny the existence of certain records," if the exemption itself would "preclude the acknowledgment of such documents." Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996).
In this case, the NSA issued its Glomar response pursuant to FOIA Exemptions 1 and 3, and Privacy Act Exemption (k)(1). The court analyzes each of these exemptions.
A. FOIA Exemption 1 and Privacy Act Exemption (k)(1)
Exemption 1 of the FOIA protects records that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Privacy Act Exemption (k)(1) provides that records exempt from disclosure under FOIA Exemption 1 are also exempt under the Privacy Act. 5 U.S.C. § 552a(k)(1).
To show that it has properly withheld information under Exemption 1, the NSA must establish that it has met the classification requirements of Executive Order 13526. (See MSUMF ¶ 20 [citing Executive Order 13526 as the relevant Order justifying the NSA's Glomar response under FOIA Exemption 1]); see also Al-Turki v. Dep't of Justice, 175 F. Supp. 3d 1153, 1171 (D. Colo. 2016). Section 1.1 of the Executive Order sets forth the following four requirements for classifying national security information: (1) an original classification authority classifies the information; (2) the U.S. Government owns, produces, or controls the information; (3) the information is within one of eight protected categories listed in section 1.4 of the Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and is able to identify or describe the damages. (Executive Order 13526 § 1.1(a); MSUMF, ¶ 22.)
In this case, the NSA's declaration—which again, should be accorded "substantial weight" in this national security context, Am. Civil Liberties Union, 628 F.3d at 619—establishes that each of these four elements have been met.
First, the NSA's declarant is its Chief of Policy, Information, Performance, and Exports, Linda M. Kiyosaki. (MSUMF, ¶ 23.) Ms. Kiyosaki is an original classification authority at the top secret level. (Id.) Ms. Kiyosaki has affirmed that the existence or nonexistence of the records Plaintiff requests is a fact that is properly classified. (Id., ¶ 24.) Second, whether the NSA possesses intelligence records relating to Plaintiff is information owned by, and in control of, the United States government. (Id. ¶ 25.) Third, Ms. Kiyosaki has determined, and articulates with reasonable specificity in her declaration, that the information protected from disclosure falls squarely within sections 1.4(c) and 1.2(a)(1) of Executive Order 13526. (Id., ¶¶ 26-31.)
Section 1.4(c) of the Executive Order encompasses, among other things, intelligence activities, intelligence sources and methods, and cryptology. (Id. ¶ 26; 75 Fed. Reg. 707 § 1.4(c).) If the NSA confirmed or denied that it possessed records relating to Plaintiff, it would correspondingly confirm or deny that Plaintiff was an intelligence source, an intelligence target, or had had his communications collected incidentally to other sources or targets. (MSUMF, ¶ 27.) Confirming or denying that fact would, in turn, reveal classified information about the NSA's sources, methods, and activities. (MSUMF, ¶ 28.)
Likewise, Section 1.2(a)(1) of the Executive Order covers information that is classified as "top secret," the unauthorized disclosure of which could reasonably be expected to cause exceptionally grave damage to United States national security. (Id., ¶ 29.) As detailed in Ms. Kiyosaki's declaration, publicly acknowledging the existence or nonexistence of intelligence records on specific individuals would cause exceptionally grave damage to United States' national security interests because it would reveal NSA intelligence capabilities, activities, and priorities, which in turn could inhibit intelligence collection and affect the NSA's ability to counter threats to the national security of the United States. (Id., ¶ 30.) Thus, the existence or nonexistence of specific intelligence records is classified as "top secret" information. (Id., ¶ 31.)
Finally, the NSA has explained at length the harm to national security that could be expected to ensue from public disclosure of the information Plaintiff seeks. (Id. ¶¶ 32-40.) Confirming or denying the existence of intelligence records about specific individuals would provide the public with critical information about the capabilities and limitations of the NSA, such as the types of communications that may be susceptible to NSA detection, its targets, and its sources. (Id., ¶ 32.) If the NSA were to admit that it possesses intelligence information about a particular individual, the NSA would essentially be admitting that one or more of the individual's activities had been detected by the NSA. (Id., ¶ 33.) This would, in turn, alert the individual that he should adjust his conduct to evade further detection. Conversely, confirmation by NSA that a person's activities are not of foreign intelligence interest, or that NSA was unsuccessful in collecting foreign intelligence information on their activities on a case-by-case basis, would allow potential adversaries to accumulate information and draw conclusions about NSA's technical capabilities, sources, and methods. (Id. ¶ 34.) Individuals who wish the United States harm could then exploit this information, in order to conduct their activities more securely. (Id., ¶ 40; see also Mobley, 924 F. Supp. 2d at 50 [concurring with the CIA that "if the CIA admits that it possesses covert intelligence information about a particular individual, the CIA essentially admits that one or more of his activities have been detected by the CIA. ... On the other hand, if the CIA denies that it possesses intelligence information about a particular individual who indeed should be of intelligence interest to the CIA, the CIA essentially admits to the individual that his efforts to conceal his activities have been successful' and thus 'this individual would know that he could continue to act with impunity"]).
Moreover, the NSA cannot respond to each case in isolation, but rather must assume that potential adversaries may examine all released information together. (MSUMF, ¶ 35.) Compilations of intelligence information present a number of particularized dangers. (Id., ¶ 36.) For example, if NSA were to admit publicly in response to a FOIA/Privacy Act request that no information about Persons X or Y exists, but, in response to a separate FOIA/Privacy Act request about Person Z, state only that no response could be made, this would give rise to the inference that Person Z is or has been an NSA target or source. (Id., ¶ 37.) Over time, the accumulation of these inferences would disclose the NSA's targets, capabilities, sources, and methods, and inform potential adversaries of the degree to which NSA is aware of their operatives, communications, and activities. (Id., ¶ 38.) Such compilations would essentially provide a road map that instructs potential adversaries regarding which communication modes or personnel remain safe or are successfully defeating NSA's capabilities. (Id., ¶ 39.) Indeed, section 1.7(e) of E.O. 13526 specifically contemplates the danger of such compilations. (Id., ¶ 41; 75 Fed. Reg. 707 § 1.7(e).)
Accordingly, the NSA must use the Glomar response consistently in all cases where the existence or nonexistence of records responsive to a FOIA/Privacy Act request is a classified fact, including instances in which the NSA does not possess records responsive to a particular request. (MSUMF, ¶ 42.) If the NSA were to invoke a Glomar response only when it actually possessed responsive records, the Glomar response could be interpreted as an admission that responsive records exist. (Id., ¶ 43.) Consistent use of the Glomar response is thus necessary to ensure its effectiveness. (Id., ¶ 54; see also Mobley, 924 F. Supp. 2d at 51 ["[T]he very nature of the Glomar posture requires that agencies categorically refuse to either confirm or deny the existence of responsive records that would reflect a classified or unacknowledged affiliation with a person because confirmation or denial that such records exist has the potential to harm national security, in and of itself."].)
Ms. Kiyosaki's declaration, which is undisputed and entitled to substantial deference, establishes that each of the four elements for classification under Executive Order 13526 have been met. Accordingly, the court finds the NSA properly refused to confirm or deny that it maintains intelligence records associated with Plaintiff under FOIA Exemption 1 and Privacy Act Exemption (k)(1). See, e.g., Mobley, 924 F. Supp. 2d at 51 (affirming agency's use of Glomar response to plaintiff's request for intelligence information relating to himself); Willis v. Nat'l Sec. Agency, No. 17-cv-2038 (KBJ), 2019 WL 1924249, at *1 (D.D.C. Apr. 30, 2019) (same); McCash v. Cent. Intelligence Agency, No. 5:15-cv-02308-EJD, 2016 WL 6650389, at *10 (N.D. Cal. Nov. 10, 2016) (same); Platsky v. Nat'l Sec. Agency, No. 15-cv-1529 (ALC), 2016 WL 3661534, at *1 (S.D.N.Y. July 1, 2016) (same).
B. FOIA Exemption 3
The NSA also invoked Exemption 3 in support of its refusal to acknowledge the existence or nonexistence of intelligence records relating to Plaintiff. (MSMUF, ¶ 45.)
Exemption 3 protects information that is specifically exempt from disclosure by statute, provided that such statute "(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue," or "(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A).
Courts apply a two-pronged inquiry when evaluating an agency's invocation of Exemption 3. See Larson, 565 F.3d at 865; CIA v. Sims, 471 U.S. 159, 167-68 (1985) (setting forth two-part test). First, the court must determine whether the statute identified by the agency qualifies as an exempting statute under Exemption 3. Larson, 565 F.3d at 865; Sims, 471 U.S. at 167-68. "To determine whether a statute qualifies as a withholding [or "exempting"] statute as required, courts look to 'the language of the statute on its face." Elec. Privacy Info. Ctr. v. Dep't of Justice, 296 F. Supp. 3d 109, 120 (D.D.C. 2017). "In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure." Id. (quoting Reporters Comm. for Freedom of Press v. U.S. Dep't of Justice, 816 F.2d 730, 735 (D.C. Cir.), rev'd on other grounds, 489 U.S. 749 (1989)). Second, the court should consider whether the withheld material falls within the scope of the exempting statute. Larson, 565 F.3d at 865; Sims, 471 U.S. at 167-68.
As a general matter, "[t]he government may withhold more information under Exemption 3 than under Exemption 1, as it does not have to demonstrate that the disclosure will harm national security." Poulsen v. Dep't of Def., 373 F. Supp. 3d 1249, 1276 (N.D. Cal. 2019) (citing Sims, 471 U.S. at 167).
In this case, the NSA identified three statutes as exempting the intelligence information that Plaintiff requested from disclosure: (1) the National Security Agency Act of 1959, 50 U.S.C. § 3605; (2) the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024; and (3) 18 U.S.C. § 798, which prohibits the unauthorized disclosure of classified information. (MSUMF, ¶¶ 47-55.) The court analyzes whether these statutes qualify as "exempting statutes" under FOIA Exemption 3 and whether the withheld material falls squarely within their respective scopes.
1. "Exempting Statutes" Under Exemption 3
The NSA first relies on Section 6 of the National Security Agency Act of 1959, codified at 50 U.S.C. § 3605. (MSUMF, ¶ 48.) 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. Through this language, Congress expressed its conclusion 'that disclosure of NSA activities is potentially harmful.'" Poulsen, 373 F. Supp. 3d at 1277 (quoting Linder v. Nat'l. Sec. Agency, 94 F.3d 693, 696 (D.C. Cir. 1996) (internal statutory citation omitted).
"Section 6 qualifies as an Exemption 3 statute, . . . and provides absolute protection." Larson, 565 F.3d at 868 (internal citations omitted). "The NSA is [thus] not required to show harm to national security under [S]ection 6, but need only demonstrate that the withheld information relates to the organization of the NSA or any function or activities of the agency." Id.; see also Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1389 (D.C. Cir. 1979); Elec. Privacy Info. Ctr., 296 F. Supp. 3d at 121; Willis, 2019 WL 1924249, at *8; Poulsen, 373 F. Supp. 3d at 1277.
The NSA next invokes Section 102A(i)(1) the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, codified at 50 U.S.C. § 3024(i)(1). (MSUMF, ¶ 51.) This statute requires the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(1). "It is well-established that Section 102A qualifies as a withholding statute for the purposes of FOIA Exemption 3." Poulsen, 373 F. Supp. 3d at 1276; see also DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) ("Courts have held that a provision of the National Security Act of 1947, which calls for the Director of National Intelligence to protect "intelligence sources and methods from unauthorized disclosure," 50 U.S.C. § 3024(i)(1), is a valid Exemption 3 statute"); Berman v. CIA, 501 F.3d 1136, 1140 (9th Cir. 2007) (same).
Finally, the NSA relies on 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. 18 U.S.C. § 798(a). (MSUMF, ¶¶ 53-54.) The term "communications intelligence," as defined by Section 798(b), means the "procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients." 18 U.S.C. § 798(b). Like the National Security Acts of 1947 and 1959, it is also established that § 798 qualifies as a withholding statute under FOIA Exemption 3. Larson, 565 F.3d at 868 (finding that 18 U.S.C. § 798 is an Exemption 3 withholding statute that mandates withholding of the covered material); Elec. Privacy Info. Ctr., 296 F. Supp. at 121 (same); N.Y. Times Co. v. Dep't of Def., 499 F. Supp. 2d 501, 512-13 (S.D.N.Y. 2007) (applying 18 U.S.C. § 798 as an Exemption 3 statute).
The court finds, based on the undisputed material facts and the law, that each of the three statutes cited by the NSA constitute "withholding" or "exempting" statutes under FOIA Exemption 3.
2. The Scope of Each Exempting Statute
As set forth above and in Ms. Kiyosaki's undisputed declaration, publicly acknowledging the existence or nonexistence of intelligence records relating to specific individuals could reveal whether or not those individuals are of intelligence interest to the NSA. (MSMUF, ¶¶ 27, 28, 30, 32-34, 37-40, & 56.) It could also reveal, among other things, classified national security information such as the NSA's intelligence sources, surveillance capabilities and activities, methods, and priorities. (Id.) Such information constitutes (1) information about the NSA's "activities," as protected under the National Security Agency Act of 1959, (2) "intelligence sources and methods," exempt from disclosure under the National Security Agency Act of 1947, and (3) "communications intelligence," protected by 18 U.S.C. § 798.5. (MSUMF, ¶ 56.)
The court finds that information withheld by the NSA, i.e., the existence or nonexistence of intelligence records relating to Plaintiff, falls well within the scope of each exempting statute.
The court finds that, based on the undisputed evidence, Defendant is entitled to summary judgment on Claim One of Plaintiff's Amended Complaint.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "Defendant's Motion for Summary Judgment" (Doc. No. 95) be GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
Dated this 24th day of August, 2020.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge