Larson v. Department of State

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2008 Decided May 8, 2009

No. 06-5112

MEREDITH LARSON, ET AL.,
APPELLANTS

v.

DEPARTMENT OF STATE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 02cv01937)

Tania Beth Rose argued the cause and filed the brief for
appellants.

Joshua P. Waldman, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Gregory G. Katsas, Acting Assistant Attorney General, Jeffrey
A. Taylor, U.S. Attorney, and Leonard Schaitman, Attorney.
Elizabeth J. Shapiro, Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, and HENDERSON and
KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.
 2

SENTELLE, Chief Judge: Pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, the plaintiffs seek to
compel the release of documents pertaining to violence they or
their loved ones suffered in Guatemala in the 1970s and 1980s.
The National Security Agency (“NSA”) and the Central
Intelligence Agency (“CIA”) withheld, in whole or in part,
certain records responsive to the plaintiffs’ requests under FOIA
Exemptions 1 and 3, and the district court upheld the
withholdings in granting summary judgment for the agencies.
Despite the plaintiffs’ arguments that they are entitled to the
documents and that the agencies did not adequately explain why
the records should be withheld, we agree with the district court
that the withheld documents are exempt from disclosure under
FOIA Exemptions 1 and 3, and that the agencies sufficiently
detailed the reasons for their nondisclosure. The plaintiffs also
challenge the responsiveness of the Department of State
(“DOS”) to one of their FOIA requests and the district court’s
decision not to view the withheld documents in camera. We
affirm the judgment of the district court on these issues as well.

I

The plaintiffs in this case each independently sought
information about past violence in Guatemala from government
agencies pursuant to FOIA. “FOIA mandates broad disclosure
of government records to the public, subject to nine enumerated
exemptions.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)
(citation omitted). Exemption 1 protects matters “specifically
authorized under criteria established by an Executive order to be
kept secret in the interest of national defense or foreign policy
and . . . in fact properly classified pursuant to such Executive
order.” 5 U.S.C. § 552(b)(1). Exemption 3 covers matters
“specifically exempted from disclosure by statute,” provided
that such statute leaves no discretion on disclosure or
“establishes particular criteria for withholding or refers to
 3

particular types of matters to be withheld.” Id. § 552(b)(3).
These exemptions cover not only the content of protected
government records but also the fact of their existence or
nonexistence, if that fact itself properly falls within the
exemption. Wolf, 473 F.3d at 374. Agency refusal to confirm
or deny the existence of records responsive to a request is
known as a Glomar response. Id. (citing Phillippi v. CIA, 546
F.2d 1009, 1011 (D.C. Cir. 1976), which concerned the
existence of records regarding a ship named Hughes Glomar
Explorer).

As relevant here, plaintiff Meredith Larson submitted a
FOIA request to the NSA, seeking documents relating to a
violent attack she suffered in Guatemala in 1989, the
organization she worked with in Guatemala, and her subsequent
visits to the country and meetings with Guatemalan and United
States government officials. In response to Larson’s request, the
NSA released to her four documents in full and eight documents
in part, making redactions pursuant to FOIA Exemptions 1 and
3.

Plaintiff Thomas Henehan, a Maryknoll priest, made a
FOIA request of NSA regarding a 1976 plane crash that killed
a fellow Maryknoll priest working as a missionary in
Guatemala. Henehan requested all documents relating to the
crash and the priest’s death, including records about threats to
and investigations of the Maryknoll Fathers, copies of the
original 1995 FOIA file created in response to another priest’s
request, and information about Guatemalan troop movement in
the Ixcan region at the time of the crash. The NSA released
thirty-six documents to Henehan—six in full and thirty in
part1—and advised him that, pursuant to FOIA Exemptions 1

1
The NSA redacted e-mail routing information from some of
these documents pursuant to FOIA Exemption 2, which covers matters
 4

and 3, it was withholding 137 responsive documents that
pertained only to Guatemalan troop movement and not to the
priest.

Plaintiff Patricia Kerndt also requested documents from the
NSA regarding the 1976 plane crash and the death of her sister,
who was a passenger on board the plane. The NSA found one
responsive document, which it withheld in full under FOIA
Exemptions 1 and 3. The NSA informed Kerndt that although
the document indicated that a plane crashed on the date in
question, it did not contain any information about the
passengers, the cause of the crash, who may have been
responsible, or any government actions.

Plaintiff Adriana Portillo-Bartow submitted FOIA requests
to the NSA and the CIA, seeking documents relating to the 1981
abduction and disappearance of her family in Guatemala. The
CIA found four responsive documents, none of which mentioned
members of Portillo-Bartow’s family, and withheld them under
Exemptions 1 and 3. The NSA issued a Glomar response to
Portillo-Bartow’s request, stating that it could not confirm or
deny the existence of responsive records pursuant to FOIA
Exemptions 1 and 3.

Plaintiff Lisel Holdenried made a FOIA request of the DOS
for all documents concerning the 1983 murder of her father in
Guatemala. Her request, made in 2002, also stated: “Please be
aware that Ms. Holdenried made a request for documents in
1995, and received some documentation. However, some
documentation was not submitted to her. Please regard this as
a renewed request.” The DOS had decided Holdenried’s appeal

“related solely to the internal personnel rules and practices of an
agency.” 5 U.S.C. § 552(b)(2). The plaintiffs do not challenge these
redactions on appeal.
 5

of its response to the 1995 request in 1998. In response to her
2002 request, the DOS found thirty-six responsive documents
and released them all to Holdenried in full. The DOS advised
Holdenried that it had released some of those thirty-six
documents to her in response to her 1995 FOIA request, and that
the information she sought was now publicly available on the
DOS website.

In an effort to obtain the withheld and redacted documents
from the defendant agencies, the plaintiffs filed this suit in the
district court. The agencies moved for summary judgment and
along with their motions filed affidavits regarding their
responses to the FOIA requests, including Vaughn indices
describing the withheld documents and explaining why the
withheld information fell under the claimed exemptions. See
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The district
court declined the NSA’s offer to provide a supplemental
classified declaration ex parte in camera regarding the agency’s
Glomar response to Portillo-Bartow because there was no
evidence of agency bad faith and the agency’s affidavit was
sufficiently detailed to permit meaningful review of the claim of
exemption. After reviewing the affidavits and all the parties’
motions and materials, the district court granted summary
judgment for the NSA and the CIA on the claims currently
before us, concluding that FOIA Exemptions 1 and 3 protected
the withheld material from disclosure. The court also granted
summary judgment for the DOS on Holdenried’s claim,
concluding that the DOS conducted a reasonable search given
the search parameters Holdenried provided. The plaintiffs now
appeal.

II

An agency that has withheld responsive documents pursuant
to a FOIA exemption can carry its burden to prove the
 6

applicability of the claimed exemption by affidavit, and we
review the agency’s justifications therein de novo. Ctr. for Nat’l
Sec. Studies v. DOJ, 331 F.3d 918, 926 (D.C. Cir. 2003); 5
U.S.C. § 552(a)(4)(B). “Summary judgment is warranted on the
basis of agency affidavits when the affidavits describe the
justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within
the claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith.” Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)
(quotation omitted). “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’
or ‘plausible.’” Wolf, 473 F.3d at 374-75 (quoting Gardels v.
CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982), and Hayden v. NSA,
608 F.2d 1381, 1388 (D.C. Cir. 1979)).

FOIA Exemptions 1 and 3 are independent; agencies may
invoke the exemptions independently and courts may uphold
agency action under one exemption without considering the
applicability of the other. Gardels, 689 F.2d at 1106-07.
Although Exemption 1 or 3 alone would likely be sufficient to
uphold the agencies’ withholdings in this case, we affirm the
district court’s judgment that both exemptions apply to the
documents in question.

A

The CIA withheld from Portillo-Bartow four intelligence
cables that report detailed descriptions of information obtained
from a particular CIA source and provide general information
about the source. Regarding each cable the CIA explained that
“[o]nly certain people would have been in a position to know the
information contained in the cable. This information, when
combined with the time period and information outside the
cable, could provide enough clues to allow some individuals to
 7

determine who provided the information to the CIA. In other
words, it could disclose the identity of the CIA source.” McNair
Decl. Ex. 1 at 6-7. The CIA concluded that no meaningful
information could be segregated from the cables for release.

1

The CIA claims that the cables are exempt from disclosure
under FOIA Exemption 1 because they are currently properly
classified pursuant to Executive Order 12958 as information
concerning “intelligence sources or methods,” and their
disclosure could reasonably be expected to damage national
security. Exec. Order No. 12958 § 1.5(c) (1995), as amended by
Exec. Order No. 13292 § 1.4(c), 68 Fed. Reg. 15,315, 15,317
(March 25, 2003). In its affidavit, the CIA explains that
information that could lead to discovery of an intelligence
source must be protected to preserve that source (or if the source
is no longer alive, other sources discovered through that
individual) and to preserve the government’s ability to retain
other current sources and recruit new sources. Disclosure of an
individual’s cooperation with the CIA in contravention of
previous assurances of confidentiality would seriously
undermine the CIA’s ability to retain its current intelligence
sources and attract future intelligence sources. The CIA also
explained that disclosing the cables could lead to the
unauthorized disclosure of intelligence methods, the means by
which the agency accomplishes its intelligence-gathering
mission. These methods are valuable for intelligence gathering
only so long as those who would use countermeasures against
them remain unsuspecting. Even seemingly trivial details may
be of great significance to foreign intelligence services with a
broad view of the intelligence landscape in their attempts to
discover and thwart CIA intelligence-gathering methods. Once
an intelligence method is disclosed, its continued use is
compromised and the CIA must attempt to develop and validate
 8

new intelligence methods at significant monetary and
informational costs.

The CIA has carried its burden to show that FOIA
Exemption 1 applies to the four cables withheld from Portillo-
Bartow. In its affidavit the agency described with reasonably
specific detail the reason for nondisclosure: the importance for
continuing intelligence operations of keeping intelligence
sources and methods classified and confidential. The Supreme
Court has acknowledged the paramount importance of
protecting intelligence sources for precisely the reasons detailed
by the CIA:

If potentially valuable intelligence sources come to think
that the Agency will be unable to maintain the
confidentiality of its relationship to them, many could
well refuse to supply information to the Agency in the
first place. . . . “The continued availability of
[intelligence] sources depends upon the CIA’s ability to
guarantee the security of information that might
compromise them and even endanger their personal
safety.”

CIA v. Sims, 471 U.S. 159, 175-76 (1985) (quoting Snepp v.
United States, 444 U.S. 507, 512 (1980)). The agency’s
affidavit also demonstrates that the withheld cables logically fall
within the exemption, that is, that they are properly classified in
the interest of national security. See 5 U.S.C. § 552(b)(1). We
“accord substantial weight to an agency’s affidavit concerning
the details of the classified status of the disputed record because
the Executive departments responsible for national defense and
foreign policy matters have unique insights into what adverse
affects [sic] might occur as a result of a particular classified
record.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927 (quoting
McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983)).
 9

Granting the CIA’s affidavit substantial weight concerning the
classified nature of the cables due to the risk that their release
could pose to national security, the affidavit sufficiently
demonstrates, to the extent possible without revealing classified
information, that the cables are properly classified under
Executive Order 12958 in the interest of national security, and
therefore fall within Exemption 1. The parties present us with
no evidence to the contrary or evidence suggesting bad faith on
the part of the CIA in withholding the cables.

Portillo-Bartow would demand further explanation from the
CIA about how release of the information in the cables “could
actually contribute to the potential loss of national security.”
She argues that the district court should have required the CIA
to answer follow-up questions to its affidavit such as whether
the passage of time or change in political environment have
rendered classification less necessary, and how revelation of
specific details she requested such as the source’s nationality
and whether the source is still alive bear on national security.

Although conclusory affidavits that merely recite statutory
standards, or are overly vague or sweeping will not, standing
alone, carry the government’s burden, see Hayden, 608 F.2d at
1387, such affidavits are not at issue here. The CIA sufficiently
detailed the classified information in the withheld cables, why
that information was classified, and why it logically must remain
classified in the interest of national security. As the district
court noted, identification of the source is the only purpose
served by the details Portillo-Bartow seeks about the source, and
identification is the very danger against which the Executive
Order protects. Minor details of intelligence information may
reveal more information than their apparent insignificance
suggests because, “‘much like a piece of jigsaw puzzle, [each
detail] may aid in piecing together other bits of information even
when the individual piece is not of obvious importance in itself.’
 10

. . . The CIA has the right to assume that foreign intelligence
agencies are zealous ferrets.” Gardels, 689 F.2d at 1106
(quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)).
In its affidavit, the CIA also explained why the passage of
time—“whether three or thirty years”—did not alter the need to
assure sources of the government’s ability to maintain
confidentiality, and we have credited the logic of that
explanation. See Wolf, 473 F.3d at 377 (“[I]t is logical to
conclude that the need to assure confidentiality to a foreign
source includes neither confirming nor denying the existence of
records even decades after the death of the foreign national.”);
Fitzgibbon v. CIA, 911 F.2d 755, 763-64 (D.C. Cir. 1990)
(“[T]he Government has a compelling interest in protecting both
the secrecy of information important to our national security and
the appearance of confidentiality so essential to the effective
operation of our foreign intelligence service.” (quoting Sims,
471 U.S. at 175)).

If an agency’s statements supporting exemption contain
reasonable specificity of detail as to demonstrate that the
withheld information logically falls within the claimed
exemption and evidence in the record does not suggest
otherwise, as is the case here, the court should not conduct a
more detailed inquiry to test the agency’s judgment and
expertise or to evaluate whether the court agrees with the
agency’s opinions. See Gardels, 689 F.2d at 1104; Halperin,
629 F.2d at 148. “[W]e have consistently deferred to executive
affidavits predicting harm to the national security, and have
found it unwise to undertake searching judicial review.” Ctr. for
Nat’l Sec. Studies, 331 F.3d at 927. Today we reaffirm our
deferential posture in FOIA cases regarding the “uniquely
executive purview” of national security. Id. at 926-27. The
judiciary “is in an extremely poor position to second-guess” the
predictive judgments made by the government’s intelligence
agencies regarding questions such as whether a country’s
 11

changed political climate has yet neutralized the risk of harm to
national security posed by disclosing particular intelligence
sources. Id. at 928; see Halperin, 629 F.2d at 148; Hayden, 608
F.2d at 1388. We therefore reject Portillo-Bartow’s
encouragement to cross-examine the CIA until we are satisfied
that its assessment of the national security risk is correct.

2

Portillo-Bartow’s objections are similarly unavailing against
the CIA’s invocation of FOIA Exemption 3. Under that
exemption, the CIA need only show that the statute claimed is
one of exemption as contemplated by Exemption 3 and that the
withheld material falls within the statute. Fitzgibbon, 911 F.2d
at 761-62. Here, the CIA invoked the National Security Act,
which requires the Director of National Intelligence to “protect
intelligence sources and methods from unauthorized
disclosure.”2 50 U.S.C. § 403-1(i)(1) (formerly 50 U.S.C.
§ 403-3(c)(7)). Portillo-Bartow does not dispute that section
403-1(i)(1) is an exemption statute. See Fitzgibbon, 911 F.2d at
761 (“There is thus no doubt that section 403(d)(3) [now
section 403-1(i)(1)] is a proper exemption statute under
exemption 3.”). In section 403-1(i)(1), “Congress gave the
Agency broad power to control the disclosure of intelligence
sources.” Sims, 471 U.S. at 173. Thus, our only remaining
inquiry is whether the withheld material relates to intelligence
sources and methods. Fitzgibbon, 911 F.2d at 762. As
previously discussed, according substantial weight to the CIA’s

2
The CIA also invoked the Central Intelligence Agency Act,
which exempts the CIA from any laws that require disclosure of the
“organization, functions, names, official titles, salaries, or numbers of
personnel employed by the Agency.” 50 U.S.C. § 403g. Portillo-
Bartow does not contest the applicability of this exemption to
withhold internal CIA organizational data in the cables.
 12

affidavits, we easily conclude that it does, and Portillo-Bartow’s
objections do not alter our conclusion.

B

The NSA also withheld responsive documents or parts of
documents from the plaintiffs pursuant to FOIA Exemptions 1
and 3. As relevant here, the NSA withheld from Kerndt one
foreign intelligence report that indicated a plane crashed on the
date about which she inquired but did not contain any additional
pertinent information. The NSA redacted parts of eight
documents it released to Larson; at her request, throughout the
documents the agency noted the specific exemption applicable
to each redaction. As to Henehan’s request, the agency redacted
parts of thirty documents, indicating the exemption claimed by
each redaction, and withheld in their entirety 137 foreign
intelligence reports relating solely to Guatemalan troop
movement. The agency explained that no portion of those
reports was reasonably segregable and a particularized index of
the reports would compromise the secret nature of the
information. Finally, the NSA informed Portillo-Bartow that it
could neither confirm nor deny the existence of materials
responsive to her request for documents relating to the abduction
of her family and potential safe houses in Guatemala because the
existence or nonexistence of materials responsive to that request
was properly classified and protected by statute.

1

The NSA asserts that the documents and redactions
withheld from Portillo-Bartow, Larson, Kerndt, and Henehan are
exempt from disclosure under FOIA Exemption 1 because they
are currently properly classified pursuant to Executive Order
12958 as concerning “foreign government information”;
“intelligence activities . . . , intelligence sources or methods, or
 13

cryptology”; “foreign relations or foreign activities of the United
States, including confidential sources”; and “vulnerability or
capabilities of systems, . . . projects, [and] plans . . . relating to
the national security.” Exec. Order No. 12958 § 1.5(b), (c), (d),
(g) (1995), as amended by Exec. Order No. 13292 § 1.4(b), (c),
(d), (g), 68 Fed. Reg. at 15,317.

In its affidavit, the NSA explained that one of its central
missions is “to intercept communications of foreign
governments in order to obtain foreign intelligence information
necessary to the national defense, national security, or the
conduct of the foreign affairs of the United States.” Giles Aff.
at 2. The identity of specific communications (referred to as
“targets”), the degree of success in exploiting those targets, the
vulnerability of particular foreign communications, and the
extent of any cryptological successes must be kept in strict
secrecy because of the fragility of the NSA’s ability to exploit
foreign communications. Disclosure of such information would
provoke protective countermeasures by the targets of the NSA’s
efforts, and if a foreign power successfully defeats an
interception operation, the government loses all intelligence
from that source unless and until the NSA can develop new
equivalent exploitation of the foreign power’s signals. In the
meantime, “the military, national policymakers and [the]
intelligence community must operate without the information
the signals provided. Such losses are extremely harmful to the
national security of the United States.” Giles Aff. at 3.

The NSA explained that the information withheld from
Larson, Kerndt, and Henehan “is derived from the most
sensitive and fragile” signals intelligence targets and identifies
targets whose communications the NSA has exploited or
pertains to intelligence collection assignments and the technical
details of collection. Giles Aff. at 10. Disclosure of that
information would inform those targets of their vulnerabilities
 14

and the NSA’s specific capabilities, sources, and methods,
prompting the targets to undertake countermeasures to deny
access to those communications. The NSA concluded that the
loss of these highly prized communications could reasonably be
expected to cause serious damage to national security and
foreign relations interests. The agency similarly determined that
confirming the existence or nonexistence of records responsive
to Portillo-Bartow’s request would reveal vulnerabilities of
communications systems, the success or lack of success in
collecting information, and projects or plans relating to national
security. Requiring acknowledgment of whether or not
responsive records exist, the NSA explained, could reasonably
be expected to cause serious damage to the national security.

The NSA has carried its burden to show that FOIA
Exemption 1 applies to the documents and information withheld
from these plaintiffs. The agency described with reasonably
specific detail the reason for nondisclosure: the necessity to
foreign intelligence gathering of keeping targets and foreign
communications vulnerabilities secret. We have credited this
reason for nondisclosure. See Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001) (explaining
that disclosure of targets’ vulnerabilities would cause targets “to
engage countermeasures to deny access to those
communications”). We have also accepted this level of detail in
an NSA explanation as sufficiently specific to qualify for
withholding under Exemption 1 in light of the substantial weight
owed agency explanations in the context of national security.
See id. (accepting explanation that the information at issue
identifies exploited targets and to disclose any related
information “would inform those targets of their vulnerabilities
and of NSA’s specific capabilities, sources and methods”); cf.
Founding Church of Scientology v. NSA, 610 F.2d 824, 831
(D.C. Cir. 1979) (holding insufficiently specific explanation that
“fail[ed] to indicate even in the slightest how agency functions
 15

might be unveiled” and “lack[ed] so much as guarded specificity
as to the ‘certain functions and activities’ that might be
revealed” (quoting agency affidavit)). Indeed, we have
recognized that in some circumstances even itemizing the
information withheld could compromise secrecy in the NSA
signals intelligence context, because “the sensitive material
comprises more than just the substantive content of the
messages. Harm could follow from the disclosure of any
material that might help to identify the communications
intercepted by NSA, such as information about date, time,
origin, or manner of transmission or receipt.” Hayden, 608 F.2d
at 1385 (emphasis omitted).

In its affidavit the NSA also demonstrates that the withheld
information is properly classified under Executive Order 12958
in the interest of national security and thus logically falls within
Exemption 1. See Miller, 730 F.2d at 776; see also Ctr. for
Nat’l Sec. Studies, 331 F.3d at 927 (courts accord “substantial
weight to an agency’s affidavit concerning . . . classified status”
(quotation omitted)). The affidavit is not controverted by any
contrary evidence in the record or any evidence suggesting
agency bad faith.

As they would with the CIA, the plaintiffs here would have
the district court demand additional detail from the NSA, such
as whether the passage of time and “presumabl[e] outdat[ing of]
technology” bears on the need for continued secrecy, whether a
manner of disclosing information exists that would not reveal
details about signals intelligence targets, and why the “targets
have to be identified instead of the information being
identified.” Putting aside the fact that the NSA’s affidavit is
sufficient to answer these queries, the plaintiffs’ proposed
further judicial inquiry is not required by—indeed is even
contrary to—our precedent. “Once satisfied that proper
procedures have been followed and that the information
 16

logically falls into the exemption claimed, the courts need not go
further to test the expertise of the agency, or to question its
veracity when nothing appears to raise the issue of good faith.”
Gardels, 689 F.2d at 1104 (quotation omitted). Not only have
we counseled that courts need not go further, we have held that
“the court is not to conduct a detailed inquiry” if the agency’s
statements meet the preliminary standard, as the NSA’s affidavit
here does. Halperin, 629 F.2d at 148 (emphasis added).

Finally, at oral argument counsel for the plaintiffs
complained that the agencies often use the same or similar
language in different affidavits supporting FOIA exemptions.
Plaintiffs suggested that this similarity reveals that the agencies
do not faithfully consider FOIA requests but rather issue
boilerplate responses, which should spur the court to require
more explanation. However, when the potential harm to
national security in different cases is the same, it makes sense
that the agency’s stated reasons for nondisclosure will be the
same. We are therefore not disquieted by the NSA’s similar
responses in similar cases. Certainly, an agency’s response must
logically fit the particular facts and circumstances of the case—a
response so vague that it suits every case would fail for any
number of reasons, see Hayden, 608 F.2d at 1387—but the fact
that similar exemption explanations regarding signals
intelligence targets suit similar cases about revealing such
targets is not a cause for further judicial inquiry.

2

Having overcome the plaintiffs’ objections to application of
Exemption 1, the NSA easily demonstrates that Exemption 3
also protects the withheld material from disclosure. As
explained above, under Exemption 3 the NSA need only show
that the statute claimed is one of exemption as contemplated by
Exemption 3 and that the withheld material falls within the
 17

statute. See Fitzgibbon, 911 F.2d at 761-62. The NSA invoked
three statutes to support its withholdings: First, the agency
invoked section 6 of the National Security Act, which is a
statutory privilege unique to the NSA and provides that “nothing
in this Act 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.” 50 U.S.C. § 402 note. Section 6 qualifies as
an Exemption 3 statute, Hayden, 608 F.2d at 1389, and provides
absolute protection, Linder v. NSA, 94 F.3d 693, 698 (D.C. Cir.
1996). The NSA is not required to show harm to national
security under section 6, but need only demonstrate that the
withheld information relates to the organization of the NSA or
any function or activities of the agency. See Hayden, 608 F.2d
at 1390. Second, the agency invoked section 798(a)(3)-(4) of
the federal criminal code, which prohibits the unauthorized
disclosure of classified information “concerning the
communication intelligence activities of the United States” or
“obtained by the process of communication intelligence from the
communications of any foreign government.” 18 U.S.C.
§ 798(a)(3)-(4). The plaintiffs do not dispute that section 798
qualifies as an Exemption 3 statute. See, e.g., 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); Winter v.
NSA, 569 F. Supp. 545, 548 (S.D. Cal. 1983) (same). Third, the
agency invoked 50 U.S.C. § 403-1(i), which as explained above,
instructs the Director of National Intelligence to protect
intelligence sources and methods from unauthorized disclosure,
regardless of classification, and qualifies as an Exemption 3
statute. See supra Part II.A.2.

As is evident from our discussion regarding Exemption 1,
in its affidavit the NSA demonstrated that disclosure of the
withheld materials would reveal “information with respect to the
activities” of the NSA, 50 U.S.C. § 402 note; classified
 18

information “concerning the communication intelligence
activities of the United States” or “obtained by the process of
communication intelligence from the communications of any
foreign government,” 18 U.S.C. § 798(a)(3)-(4); and
information relating to “intelligence sources and methods,” 50
U.S.C. § 403-1(i)(1). The plaintiffs’ challenge to the NSA’s
reliance on Exemption 3 fails.

III

We must also review de novo the grant of summary
judgment in favor of the DOS regarding its response to
Holdenried’s FOIA request, although this inquiry need not
detain us long. In her FOIA request to the DOS, Holdenried
specified that she sought any information about her father and
his death in Guatemala, including a list of ten related topics.
Later in the letter she stated, “Please be aware that Ms.
Holdenried made a request for documents in 1995, and received
some documentation. However, some documentation was not
submitted to her. Please regard this as a renewed request.” The
DOS found thirty-six responsive documents and released them
all to Holdenried in full. Holdenried now argues that her request
also entitled her to DOS documents concerning the agency’s
response, both initial and appellate, to her 1995 FOIA request,
or to district court review of the agency’s 1998 appellate
decision to withhold certain documents responsive to the 1995
request.

In determining whether an agency has discharged its FOIA
responsibilities, the issue we must resolve is whether the search
for documents was adequate, “and adequacy is measured by the
reasonableness of the effort in light of the specific request.”
Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). “The
burden of adequately identifying the record requested lies with
the requester.” 22 C.F.R. § 171.5(c). Holdenried’s FOIA
 19

request gave no indication that she sought DOS documents
regarding the agency’s previous responses to her 1995 FOIA
request. At best, Holdenried’s 2002 request suggested that she
had sought similar documents in 1995 without complete success
and now sought the same documents again, without identifying
the parameters of her 1995 request or the documents previously
withheld or received. Such a request does not reasonably
suggest to the DOS that it should search for and disclose internal
documents arising out of the agency’s decisions concerning her
1995 request.

Nor was Holdenried entitled to judicial review of the DOS
response to her 1995 FOIA request on this record. Nowhere in
her complaint did Holdenried mention the 1995 request or in any
way suggest that she sought judicial review of the DOS response
to her 1995 request as opposed to her 2002 request, which was
the subject of the complaint. The district court therefore quite
properly concluded that “[a]ction on her [1995] request came to
an end when her appeal of that case was decided [by the DOS]
in 1998.” Larson v. Dep’t of State, No. 1:02cv01937, 2005 WL
3276303, at *25 (D.D.C. Aug. 10, 2005).

IV

Finally, we review for abuse of discretion the district
court’s decision not to conduct in camera review of the withheld
documents or the NSA’s proffered supplemental classified
declaration. See Juarez v. Dep’t of Justice, 518 F.3d 54, 60
(D.C. Cir. 2008). The plaintiffs argue that the court should have
undertaken in camera review of the withheld documents because
review can result in greater disclosure and courts should
independently verify the government’s claims of protection.

FOIA provides district courts the option to conduct in
camera review, 5 U.S.C. § 552(a)(4)(B), but “it by no means
 20

compels the exercise of that option,” Juarez, 518 F.3d at 60. In
camera review is available to the district court if the court
believes it is needed “to make a responsible de novo
determination on the claims of exception.” Id. (quoting Carter
v. Dep’t of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987)). If
the agency’s affidavits “provide specific information sufficient
to place the documents within the exemption category, if this
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 without in camera review of the
documents.” Hayden, 608 F.2d at 1387; see also Weissman v.
CIA, 565 F.2d 692, 697 (D.C. Cir. 1977). Although district
courts possess broad discretion regarding whether to conduct in
camera review, Carter, 830 F.2d at 392, we have made clear
that “[w]hen the agency meets its burden by means of affidavits,
in camera review is neither necessary nor appropriate,” Hayden,
608 F.2d at 1387. In camera inspection is “particularly a last
resort in ‘national security’ situations” like this case, Weissman,
565 F.2d at 697—“a court should not resort to it routinely on the
theory that ‘it can’t hurt,’” Ray v. Turner, 587 F.2d 1187, 1195
(D.C. Cir. 1978).

The district court here did not abuse its discretion in
declining to view the withheld documents or the proffered
supplemental classified declaration in camera. The court
concluded, and we agree, that the agencies’ affidavits standing
alone were sufficiently specific to place the challenged
documents within the exemption categories, and the plaintiffs
did not contest the contents of the withholdings or present any
evidence contradicting the affidavits or suggesting bad faith.
Summary judgment without in camera review was therefore
appropriate and not an abuse of the district court’s broad
discretion.
 21

V

We affirm summary judgment for the defendant agencies,
agreeing with the district court that the DOS responded
appropriately to Holdenried’s request, that the affidavits of the
NSA and the CIA were sufficient to support their reliance on
FOIA Exemptions 1 and 3, and that in camera review was not
necessary to reach this decision. The withheld materials at issue
in this case are precisely the sort of documents and information
intended to be protected from public disclosure by Exemptions
1 and 3. We deny the plaintiffs’ request for judicial notice of
articles relating to Guatemala and government secrecy because
those articles are irrelevant to our inquiry; taking notice of them
would not affect our opinion.

So ordered.