UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELECTRONIC PRIVACY )
INFORMATION CENTER, )
)
Plaintiff, )
)
v. ) Civil No. 13-cv-1961 (KBJ)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
)
MEMORANDUM OPINION
This decision marks the Court’s third foray into the dispute between plaintiff
Electronic Privacy Information Center (“EPIC”) and the Department of Justice (“DOJ”)
regarding a document request that EPIC submitted to DOJ under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, in October of 2013. EPIC seeks records
about a now-expired U.S. government national security program that involved the
surreptitious use of pen register and trap-and-trace (“PR/TT”) devices to collect
communications information (see Compl., ECF No. 1), and this Court previously denied
EPIC’s motion for a preliminary injunction, which the organization had filed
contemporaneously with its complaint. See Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp.
3d 32 (D.D.C. 2014) (“EPIC I”) (denying the request for an order that required DOJ to
process the pending FOIA request immediately and provide responsive documents
within 20 days). This Court has also summarily denied previous cross-motions for
summary judgment in this matter, largely due to the government’s continued release of
additional responsive materials while the parties were briefing those motions. See Elec.
Privacy Info. Ctr. v. DOJ, No. 13cv1961, 2016 WL 447426 (D.D.C. Feb. 4, 2016)
(“EPIC II”).
The parties have now narrowed the scope of the dispute, such that the only issues
left for this Court to resolve are whether the government has properly withheld two
categories of materials pursuant to FOIA Exemptions 1, 3, and/or 7(E): (1) Westlaw
printouts that were attached to a certain brief that the government submitted to the
Foreign Intelligence Surveillance Court (“FISC”), and (2) portions of certain reports
that DOJ issued to Congress, consisting of summaries of FISC legal opinions,
descriptions of the scope of the FISC’s jurisdiction, and discussions of process
improvements (collectively, the “Remaining Challenges”). 1 DOJ has submitted a
revised Vaughn Index and supplemental affidavits speaking to the propriety of these
withholdings (see Revised Vaughn Index, ECF No. 35; Fourth Decl. of David M. Hardy
(“Hardy Suppl. Decl.”), ECF No. 35-1; Decl. of David J. Sherman (“Sherman Suppl.
Decl.”), ECF No. 35-2), and it has also filed—ex parte and in camera—both unredacted
copies of the withheld materials and classified versions of the government’s
supplemental declarations (see Notice of Lodging Documents for In Camera Review
with the Classified Info. Sec. Officer (“Notice of Classified Lodging”), ECF No. 34; In
Camera, Ex Parte Classified Fourth Decl. of David M. Hardy (“Classified Hardy Suppl.
1
As explained herein (see infra Part III.A.1), in the course of evaluating the response to EPIC’s FOIA
request, DOJ referred particular responsive documents to the Federal Bureau of Investigation (“FBI”)
and the National Security Agency (“NSA”) for review and exemption determinations. (See Decl. of
Mark A. Bradley (“Bradley Decl.”), ECF No. 22-3, ¶ 7.) The NSA and the FBI are not parties to this
lawsuit; however, the Remaining Challenges involve withholding determinations that these agencies
made. Therefore, the Court will collectively refer to those two agencies, along with DOJ (the named
defendant), as “the government” when discussing the various withholdings.
2
Decl.”); In Camera, Ex Parte Decl. of David J. Sherman (“Classified Sherman Suppl.
Decl.”)).
Before this Court at present are the parties’ renewed cross-motions for summary
judgment regarding these two categories of materials. (See Def.’s Mot. for Summ. J.
(“Def.’s Mot.”), ECF No. 36; Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No.
37.) DOJ argues that the government properly withheld all of the information at issue
in this case pursuant to Exemptions 3 and 7(E) (see Def.’s Mot. at 18–23), and that the
classified material in the Congressional reports and FISC filing is further properly
withheld under Exemption 1 (see id. at 13–16). 2 DOJ also contends that the
government has released all non-exempt, reasonably segregable portions of the records
that EPIC has requested. (See id. at 23–24.) EPIC’s cross-motion insists that the fact
that some of the material that DOJ initially withheld as exempt has now been released
suggests that DOJ is acting in bad faith with respect to the withheld materials. (See
Pl.’s Mot. at 12–14.) EPIC further asserts that none of the information that the
government has withheld is properly deemed classified (see id. at 16–19), nor is it
specifically exempted from disclosure by statute (id. at 19–21), nor do the materials
satisfy the Exemption 7(E) criteria for protected law-enforcement information (see id.
at 21–23). EPIC also argues that the government has failed to release all reasonably
segregable information. (See id. at 24–25.)
On September 30, 2017, this Court issued an order that GRANTED IN PART
AND DENIED IN PART DOJ’s motion for summary judgment, and also DENIED
2
Page numbers cited herein refer to those that the Court’s electronic case filing system automatically
assigns.
3
EPIC’s Renewed Motion for Summary Judgment without prejudice. (See ECF No. 45.)
This Memorandum Opinion explains the reasons for that order. In sum, and as
discussed fully below, the Court has conducted an in camera review of the relevant
materials, and it concurs with DOJ’s contention that FOIA Exemption 3 was properly
invoked with respect to the Westlaw printouts and the redacted portions of the
Congressional reports that EPIC is challenging in this action. (See infra Sec. III.A.1.)
It is also clear to the Court that the government has identified an Executive order that
specifically authorizes it to maintain the secrecy of the material at issue in the interest
of national defense, and that the challenged withheld material is properly classified
pursuant to that order; therefore, the government is also entitled to rely on Exemption 1
to withhold the requested information.
Notably, however, DOJ’s general success in establishing that the disputed
information can be withheld comes with a caveat: the Court has identified at least three
redactions in the Congressional reports that DOJ has categorized as undisputed (i.e.,
“outside the Remaining Challenges”) but that do appear to fit within the categories of
disputed redactions still at issue in this case. Given this mischaracterization, DOJ has
not provided any reasons for the government’s withholdings with respect to these
particular redactions; therefore, this Court is in no better position to evaluate the
appropriateness of these particular redactions than it was prior to the government’s
supplemental submissions. See EPIC II, 2016 WL 447426, at *3 (remarking that “the
current sworn statements are too general in scope” and that “because the declarations
fail to home in on the specific withholdings now at issue, they are manifestly
inadequate to assist the Court in determining whether the declarants have made a
4
reasonable assessment” under the FOIA). The Court has also identified two other
aspects of the government’s withholdings with respect to the congressional reports—a
footnote on page 57 of Document 126 and a notation on page 59 of Document 127—that
require further clarification, as explained below. Consequently, the accompanying
Order requires DOJ to submit one or more supplemental declarations with respect to the
congressional reports, in order to address the issues identified herein, and the Order
also sets a schedule for submission of renewed motions for summary.
I. BACKGROUND
A. Prior Proceedings
The prior proceedings in this matter are described in detail in the two opinions
that this Court has previously issued in this case. See EPIC I, 15 F. Supp. 3d 32; EPIC
II, 2016 WL 447426. Thus, only a brief recounting of the relevant background details
is necessary here. In short, EPIC submitted a FOIA request to DOJ on October 3, 2013,
seeking certain records that pertain to the United States government’s prior
surreptitious use of PR/TT devices under the Foreign Intelligence Surveillance Act
(“FISA”), 50 U.S.C. §§ 1841–46:
1. All reports made to the Permanent Select Committee on
Intelligence in the House of Representatives and the Select
Committee on Intelligence in the Senate, detailing the total
number of orders for pen registers or trap and trace devices
granted or denied, and detailing the total number of pen
registers or trap and trace devices installed pursuant to 50
U.S.C. § 1843.
2. All information provided to the aforementioned
committees concerning all uses of pen registers and trap and
trace devices.
3. All records used in preparation of the above materials,
including statistical data.
5
(EPIC FOIA Request, Ex. A to Pl.’s Mot. for Prelim. Inj., ECF No. 3-2.) EPIC filed the
instant lawsuit, along with a motion for a preliminary injunction, when DOJ did not
respond to this FOIA request by the statutory deadline. (See Compl., ECF No. 1.)
After this Court denied EPIC’s motion for a preliminary injunction, EPIC I, 15
F. Supp. 3d 32, DOJ proceeded to process EPIC’s FOIA request, and in doing so,
referred certain documents to the Federal Bureau of Investigation (“FBI”) and the
National Security Agency (“NSA”) for review and a withholding determination. (See
Bradley Decl. ¶ 7.) See also 28 C.F.R. § 16.4(d)(2)(i) (“When the component
processing the request believes that a different component, agency, or other Federal
Government office is best able to determine whether to disclose the record, the
component typically should refer the responsibility for responding to the request
regarding that record, as long as the referral is to a component or agency that is subject
to the FOIA.”). The government completed processing EPIC’s FOIA request by late
summer of 2014, and the parties then proceeded to brief cross-motions for summary
judgment.
On October 31, 2014, DOJ submitted its opening summary judgment brief and
supporting declarations from declarants of DOJ, the NSA, and the FBI, and it also filed
a Vaughn Index that contained 92 entries and invoked Exemptions 1, 3, 6, 7(C), and
7(E). EPIC II, 2016 WL 447426, at *2. (See Vaughn Index, Ex. A to 2d Decl. of Mark
A. Bradley (“Bradley Decl.”), ECF No. 22-3, at 8–24.) Then, during the course of the
remaining briefing of the summary judgment motions, the number of documents at issue
shrank substantially, until at a motion hearing that this Court held on January 21, 2016,
counsel for EPIC represented that only two issues remained for this Court to resolve:
6
(1) whether the government has properly withheld the Westlaw printouts that are
attached to Vaughn Index Document 68, which is a classified legal brief that the
government once submitted to the FISC, and (2) whether the government properly
redacted from the Semi-Annual Reports that DOJ made to Congress regarding use of
FSIA PR/TT devices (hereinafter, the “SARs”) information that consisted of summaries
of FISC legal opinions, descriptions of the scope of the FISC’s jurisdiction, and
discussions of FISA process improvements. Id. at *3. Importantly, upon its
consideration of the parties’ briefs and supporting materials, this Court found “that the
declarations that DOJ has submitted in support of its motion for summary judgment do
not address these withholdings in particular” and, thus, DOJ’s evidence was
insufficient to enable the Court to determine whether the government had properly
invoked FOIA exemptions to withhold the information in dispute. Id. (emphasis in
original). Consequently, the Court denied the parties’ cross-motions without prejudice,
and required DOJ to submit additional declarations that were tailored to the
withholdings at issue. Id. at *4. The Court also mandated that DOJ submit the two
categories of contested documents for in camera review. Id.
B. Current Proceedings
On March 18, 2016, DOJ filed an updated Vaughn Index and unclassified
declarations from David M. Hardy of the FBI and David J. Sherman of the NSA. (See
Revised Vaughn Index; Hardy Suppl. Decl.; Sherman Suppl. Decl.) On that same day,
DOJ also lodged with the Classified Information Security Officer classified versions of
the Hardy and Sherman supplemental declarations, as well a copy of Document 68 (the
FISC brief) and the attached Westlaw printouts, and unredacted copies of the five
contested SARs, which are documents 124–127 and 129 on the Vaughn Index. (See
7
Notice of Classified Lodging; Classified Hardy Suppl. Decl.; Classified Sherman Suppl.
Decl.)
On April 8, 2016, the parties filed renewed cross-motions for summary judgment
based on this significantly narrowed range of documents. (See Def.’s Mot.; Pl.’s Mot.)
These are the motions that are presently before this Court. In its motion, DOJ argues
that it is entitled to summary judgment because the government properly invoked FOIA
Exemption 1 to withhold the Westlaw printouts attached to Document 68 and the
redacted portions SARs, given that these materials contain classified NSA or FBI
information. (See Def.’s Mot. at 13–16.) DOJ also contends that it was appropriate for
the government to rely on FOIA Exemption 3, which permits the withholding of records
that are “specifically exempted from disclosure by [a] statute [that] . . . establishes
particular criteria for withholding or refers to particular types of matters to be
withheld[,]” 5 U.S.C. § 552(b)(3). (See Def.’s Mot. at 16–21.) In this regard, DOJ
maintains that the withheld material contains classified information regarding United
States communications intelligence activities, or pertains to the NSA’s operations, and
is thus exempted from disclosure under Section 102A(i)(1) of the National Security Act
of 1947, 50 U.S.C. § 3024(i)(1) (exempting “intelligence sources and methods” from
disclosure), or Section 6 of the National Security Agency Act of 1959, 50 U.S.C.
§ 3605 (authorizing the withholding of information that relates to “the organization or
any function of the [NSA], or any information with respect to the activities thereof”), or
18 U.S.C. § 798(a)(3) (prohibiting disclosure of “classified information. . . concerning
the communication intelligence activities of the United States”). (Def.’s Mot. at 18–
21). DOJ further insists that the Westlaw printouts and the Congressional reports were
8
“compiled for law enforcement purposes[,]” and thus fall within the protective ambit of
FOIA Exemption 7(E) (id. at 23), and that the government has released all non-exempt,
reasonably segregable portions of records that are responsive to EPIC’s FOIA request
(id. at 23).
For its part, EPIC argues that by continuously releasing materials that it
originally withheld, DOJ has called into question not only the propriety of the initial
withholdings but also the government’s continued withholding of the material that
remains at issue in this case. (See Pl.’s Mot. at 13–15.) EPIC also challenges DOJ’s
Exemption 1 arguments, asserting that the material at issue is not “properly classified”
given its nature (id. at 16 (citations omitted)), and that the government’s withholding of
otherwise publicly available Westlaw printouts is especially “absurd[]” (id. at 17).
With respect to the government’s reliance on Exemption 3, EPIC contends, first, that
the government invoked Exemption 3 belatedly and in bad faith; and second, that
affidavits from the FBI and the NSA are legally insufficient to justify the Exemption 3
withholdings because DOJ’s National Security Division (“NSD”) created and controls
the documents at issue, and NSD is not a member of the intelligence community that is
permitted to invoke the National Security Act for purposes of Exemption 3. (Id. at 19–
21). EPIC also strenuously objects to DOJ’s Exemption 7(E) arguments (id. at 21–23),
and insists that “it is implausible that entire legal opinions” such as the Westlaw
printouts “would be devoid of reasonably segregable material” (id. at 24). Similarly,
EPIC states that the summaries of FISC opinions, FISC jurisdiction, and FISA
procedures are reasonably segregable, non-exempt material that must be disclosed (id.
at 24–25).
9
The parties’ cross-motions for summary judgment are now ripe for this Court’s
review. (See Def.’s Mem. of Law in Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 38;
Pl.’s Mem. in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 39; Def.’s Reply in Supp.
of Def.’s Mot., ECF No. 42; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”), ECF No.
43.)
II. LEGAL STANDARDS
A. The FOIA And Its Exemptions
The FOIA seeks to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
(1991) (internal quotation marks and citation omitted). As relevant here, the statute
prescribes that “each agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with published rules stating the
time, place, fees (if any), and procedures to be followed, shall make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, “[i]n enacting
FOIA, the Congress sought to balance the public’s interest in governmental
transparency against legitimate governmental and private interests [that] could be
harmed by release of certain types of information.” United Tech. Corp. v. U.S. Dep’t of
Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (second alteration in original) (internal
quotation marks and citations omitted).
To that end, the FOIA specifies nine exemptions that permit agencies to withhold
information from disclosure. See 5 U.S.C. § 552(b); see also Judicial Watch, Inc. v.
U.S. Dep’t of the Treasury, 796 F. Supp. 2d 13, 18 (D.D.C. 2011). For example,
agencies are authorized to withhold otherwise responsive documents and information
10
that are “properly classified” pursuant to an Executive order or otherwise “specifically
exempted from disclosure” under certain statutes. 5 U.S.C § 552(b)(1), (3). “These
exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v.
Dep’t of the Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations
omitted). Moreover, even if a portion of the records is justifiably withheld pursuant to
one of the enumerated exemptions, the FOIA provides that “[a]ny reasonably segregable
portion of a record shall be provided to any person requesting such record after deletion
of the portions which are exempt[.]” 5 U.S.C. § 552(b); see also Assassination
Archives & Research Ctr. v. CIA., 334 F.3d 55, 58 (D.C. Cir. 2003) (explaining that
“even if an agency establishes an exemption, it must nonetheless disclose all reasonably
segregable, nonexempt portions of the requested record(s)” (citing 5 U.S.C. § 552(b));
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)
(“The focus of the FOIA is information, not documents, and an agency cannot justify
withholding an entire document simply by showing that it contains some exempt
material.”).
B. Summary Judgment In FOIA Cases Generally
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C.
2014) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009)). A district court reviewing a motion for summary judgment in the FOIA context
conducts a de novo review of the record, 5 U.S.C. § 552(a)(4)(B), analyzing all
underlying facts and inferences in the light most favorable to the FOIA requester. See
Willis v. Dep’t of Justice, 581 F. Supp. 2d 57, 65 (D.D.C. 2008). Because Rule 56 of
the Federal Rules of Civil Procedure provides that summary judgment is warranted only
11
if the pleadings, disclosure materials on file, and affidavits “show[] 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); see also Judicial Watch v. Navy, 25 F. Supp. 3d
at 136 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)), in a FOIA
case, summary judgment for an agency is appropriate only when the agency proves that
it has “fully discharged its [FOIA] obligations[,]” Moore v. Aspin, 916 F. Supp. 32, 35
(D.D.C. 1996). Thus, an “agency must demonstrate that ‘each document that falls
within the class requested either has been produced . . . or is wholly exempt from
[FOIA’s] inspection requirements[.]’” Gov’t Accountability Project v. FDA, 206 F.
Supp. 3d 420, 430 (D.D.C. 2016) (quoting Gilda Indus., Inc. v. U.S. Customs & Border
Prot. Bureau, 457 F. Supp. 2d 6, 9 (D.D.C. 2006) (first and second alterations in
original).
If an agency contends that it is entitled to withhold information under a FOIA
exemption, it “bears the burden of proving the applicability of [the] claimed
exemptions[,]” and such a showing is typically made in agency affidavits. Am. Civil
Liberties Union v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). Such affidavits
are entitled to a presumption of good faith, and the court can award the agency
summary judgment based solely on the information so provided. See Hedrick v. FBI,
216 F. Supp. 3d 84, 94–95 (D.D.C. 2016). However, to be sufficient to support a
summary judgment motion, the agency’s affidavits must describe “the justifications for
nondisclosure with reasonably specific detail, [and] demonstrate that the information
withheld logically falls within the claimed exemption,” and must not be “controverted
12
by either contrary evidence in the record []or by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
Although a reviewing court evaluates de novo an agency’s invocation of a FOIA
exemption and its supporting declarations, see Wolf v. CIA, 473 F.3d 370, 374 (D.C.
Cir. 2007), “in conducting de novo review in the context of national security concerns,
courts must accord substantial weight to an agency’s affidavit concerning the details of
the classified status of the disputed record.” Id. (emphasis, internal quotation marks,
and citation omitted). This is because “‘the Executive departments responsible for
national defense and foreign policy matters have unique insights into what adverse
[e]ffects might occur as a result of a particular classified record[.]’” McGehee v.
Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (quoting S. Rep. No. 1200, 93d Cong., 2d
Sess. 12, U.S. Code & Admin. News 1974, p. 6267 (1974) (Conf. Rpt. on the FOIA
Amendments)).
That said, the Court is authorized to conduct its own evaluation of whether or not
disputed documents fall within the scope of the enumerated exemptions. The FOIA
permits in camera review of withheld records, but notably, “‘the use of in camera
affidavits has generally been disfavored[.]’” Shapiro v. DOJ, 239 F. Supp. 3d 100, 110
(D.D.C. 2017) (quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 580
(D.C. Cir. 1996)). When presented with an in camera submission, the court must
ensure that “as much as possible of the in camera submission [is made] available to the
opposing party” without disclosing the material that the agency seeks to protect.
Armstrong, 97 F.3d at 580; see also Barnard v. Dep’t of Homeland Sec., 598 F. Supp.
2d 1, 16 (D.D.C. 2009) (“[W]here, as here, an agency indicates that no additional
13
information concerning an investigation may be publicly disclosed without revealing
precisely the information that the agency seeks to withhold, the receipt of in camera
declarations is appropriate.”).
Finally, with respect to the duty to produce all reasonably segregable information
that remains after exempt information has been withheld, “[t]he government bears the
burden of demonstrating that no reasonably segregable material exists in the withheld
documents[,]” and “must provide[ ] a detailed justification and not just conclusory
statements to demonstrate that all reasonably segregable information has been
released.” Barouch v. DOJ, 962 F. Supp. 2d 30, 56 (D.D.C. 2013) (internal quotation
marks and citation omitted).
III. ANALYSIS
To their credit, the parties in this case have diligently narrowed the range of
documents at issue from 92 to six, such that only five SARs (Documents 124–127 and
129) and one set of Westlaw printouts (which are attached to Document 68) remain in
dispute at this time. See supra Part I.A. The detailed facts that underpin the
government’s decision to withhold these responsive records are revealed only in the
classified declarations that DOJ has provided to this Court—which, admittedly, puts
EPIC at a distinct disadvantage with respect to its argument that the withheld
information should be released. (See Pl.’s Opp’n at 5 (noting that DOJ makes only
“conclusory assertions” in the public filings, and “has redacted nearly all of the
substantive arguments in support of the withholdings”).) This Court is sensitive to the
public’s interest in having a fulsome public record, and it is also aware that “in camera
review ‘deprives the FOIA requester of an opportunity to present his interpretation of
14
the withheld documents’” as a general matter. Jarvik v. CIA, 741 F. Supp. 2d 106, 111
(D.D.C. 2010) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996)).
However, as explained above, the FOIA authorizes an agency to support its
withholdings through classified, in camera declarations when there is a reasonable risk
“that public itemization and detailed justification would compromise legitimate secrecy
interests[.]” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1385 (D.C.
Cir. 1979); see also Edmonds v. FBI, 272 F. Supp. 2d 35, 46–47 (D.D.C. 2003)
(explaining that in camera review is warranted “when extensive public justification
would threaten to reveal the very information for which a FOIA exemption is claimed”
(quoting Lykins v. DOJ, 725 F.2d 1455, 1463 (D.C. Cir. 1984) (alteration in original))).
This is such a case. In this Court’s view, the content of the classified
declarations, along with the unredacted materials to which they pertain, justify the
government’s concerns about potentially harmful disclosure. To the extent that this
Court is able, it has explained below its reasons for concluding that the government has
properly relied on FOIA Exemption 3, and alternatively FOIA Exemption 1, to withhold
nearly all of the redacted and undisclosed materials that are still at issue in this case,
including the Westlaw printouts and nearly all of the portions of the SARs that are at
issue. However, in camera review of the SARs reveals that the government may have
failed to address a handful of withholdings that are still in dispute, and as a result, the
Court will require supplemental submissions regarding these redactions, as described
below.
15
A. The Government Properly Invoked Exemption 3 To Withhold The
Information At Issue
An agency may rely on Exemption 3 to withhold records in response to a FOIA
request where a statute “specifically exempt[s]” the requested information from
disclosure, so long as that statute either “requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue[,]” or “establishes
particular criteria for withholding or refers to particular types of matters to be
withheld[.]” 5 U.S.C. § 552(b)(3). The two listed conditions are disjunctive, and thus
the statute at issue “need satisfy only one of them to qualify under Exemption 3.”
Gov’t Accountability Project, 206 F. Supp. 3d at 428 (citing Pub. Citizen, Inc. v.
Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008)). However, notably, “[b]efore
a court inquires into whether any of the [two statutory] conditions [for withholding
information] are met . . . it must first determine whether the statute is a withholding
statute at all by deciding whether it satisfies ‘the threshold requirement that it
specifically exempt matters from disclosure.’” Pub. Citizen, 533 F.3d at 813–14
(emphasis in original) (quoting Reporters Comm. for Freedom of the Press v. DOJ, 816
F.2d 730, 734 (D.C. Cir. 1987)).
“To determine whether a statute qualifies as a withholding statute as required,
courts look to ‘the language of the statute on its face[.]’” Gov’t Accountability Project,
206 F. Supp. 3d at 429 (quoting Zanoni v. U.S. Dep’t of Agric., 605 F. Supp. 2d 230,
236 (D.D.C. 2009)). “In other words, a statute that is claimed to qualify as an
Exemption 3 withholding statute must, on its face, exempt matters from disclosure.”
Reporters Comm., 816 F.2d at 735, rev’d on other grounds, 489 U.S. 749 (1989). If the
statute passes this threshold test, the court next determines whether the statute satisfies
16
either of the two statutory disjunctive conditions for withholding the responsive
information. See Gov’t Accountability Project, 206 F. Supp. 3d at 428; see also
Fitzgibbon, 911 F.2d at 761-62 (“[T]he sole issue for decision [with respect to
Exemption 3] is the existence of a relevant statute and the inclusion of withheld
material within the statute’s coverage.” (internal quotation marks and citation omitted)).
Here, the government has pointed to three separate statutes—Section 102A(i)(1)
of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1); Section 6 of the National
Security Agency Act of 1959, 50 U.S.C. § 3605; and 18 U.S.C. § 798—and asserts that
each qualifies as a withholding statute for the purpose of Exemption 3. (See Def.’s
Mot. at 18-21.) The government further argues that these statutes required the relevant
government agencies to withhold the redacted portions of the SARs and the Westlaw
printouts, because that material either concerns U.S. communications intelligence
activities and is classified, or pertains to NSA operations. (See id.) As explained
below, there appears to be no dispute about this legal analysis; instead, EPIC seeks to
advance the novel contention that, even though DOJ’s NSD referred certain documents
to the FBI and the NSA for exemption determinations under governing FOIA
regulations, the government cannot assert certain otherwise applicable FOIA
exemptions in the instant context because the FOIA request was directed to NSD in the
first instance. As explained below, this Court agrees with the government that
Exemption 3 is applicable to the withholdings at issue, and it rejects EPIC’s assertion
that this FOIA exemption has nevertheless been improperly invoked under the
circumstances presented in this case.
17
1. The Statutes That The Government Relies Upon Qualify As
“Withholding Statutes,” And The Challenged Information Was
Within The Scope Of Each Statute
The FBI and the NSA have each reviewed the materials responsive to EPIC’s
FOIA request, and both have cited Exemption 3 to withhold certain information. (See
supra Section I.B.) The FBI seeks to withhold the Westlaw printouts and to make
redactions on 20 pages of the SARS, and it relies on a single statute to justify all of
these withholdings under Exemption 3—Section 102A(i)(1) of the National Security
Act of 1947, 50 U.S.C. § 3024(i)(1), which requires the “Director of National
Intelligence” (“DNI”) to “protect from unauthorized disclosure intelligence sources and
methods.” (Hardy Suppl. Decl. ¶ 15.) The DNI has delegated enforcement of this
National Security Act mandate to the heads of the 17 agencies that constitute the
“Intelligence Community[,]” see Intelligence Community Directive 700, at 3 (June 7,
2012), available at http://www.dni.gov/files/documents/ICD/ICD_700.pdf, and the FBI
and the NSA (but not the NSD) are among these agencies, see Dir. of Nat’l Intelligence,
Members of the IC, https://www.dni.gov/index.php/what-we-do/members-of-the-ic; see
also DiBacco v. U.S. Army, 795 F.3d 178, 197–99 (D.C. Cir. 2015); ACLU v. U.S. Dep’t
of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The NSA has also relied on Section
102(A)(i)(1) of the National Security Act to justify certain withholdings. (See Vaughn
Index at 3.) Additionally, with respect to its withholding on page 51 of Document 129,
the NSA also points to 50 U.S.C. § 3605 (Section 6 of the National Security Agency
Act of 1959), which authorizes the government to withhold information that relates to
“the organization or any function of the [NSA], or any information with respect to the
activities thereof,” and 18 U.S.C. § 798, which prohibits disclosure of “classified
18
information . . . concerning the communication intelligence activities of the United
States[.]” (See Sherman Suppl. Decl. ¶ 2.)
It is well established that each of the statutes that the FBI and the NSA relies
upon qualifies as an Exemption 3 withholding statute, because each specifically
exempts particular material from disclosure and satisfies one aspect of Exemption 3’s
disjunctive tests. See, e.g., DiBacco, 795 F.3d at 199 (noting that Section 102A(i)(1) is
an Exemption 3 withholding statute that mandates withholding of intelligence sources
and methods); Hayden v. NSA, 608 F.2d 1381, 1389–90 (D.C. Cir. 1979) (explaining
that Section 6 is an Exemption 3 withholding statute that specifies information to be
withheld); Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir. 2009) (finding that 18
U.S.C. § 798 is an Exemption 3 withholding statute that mandates withholding of the
covered material). Thus, the question this Court must address is whether the withheld
material at issue here falls within the scope of these statutes.
With respect to the portions of the SARs that the FBI has withheld and that are
discussed in the unredacted materials that the government has submitted, this Court
finds that withheld material pertains to specific surveillance techniques (see Document
124 at 3–4, 47, 50; Document 125 at 3–5, 50–52; Document 126 at 56–60; Document
127 at 58–61), or discusses particular strengths or limitations of the FISC process in
relation to surveillance techniques, and thus the reactions broadly pertain to intelligence
methods that must be protected from disclosure under Section 102A(i)(1). Turning to
the Westlaw printouts, this Court likewise finds that, given the context in which the
printouts exist in this litigation—i.e., as part of a classified brief submitted to the
FISC—the printouts also constitute intelligence sources and methods for purposes of
19
Section 102A(i)(1), and therefore the FBI properly withheld those materials. With
respect to the portions of the SARs that the NSA has redacted, this Court’s own in
camera review of the unredacted text of the material reveals that the withheld material
discusses a particular classified NSA surveillance method (see Document 129 at 51),
and thus is protected from disclosure. 3
In light of its own in camera review and the submitted declarations, the Court
readily finds that the material falls within the ambit of each cited statute—specifically,
the withheld information pertains to intelligence sources and methods and NSA
activities within the scope of 50 U.S.C. §§ 3024(i)(1) and 3605, and also contains
classified information concerning communication activities within the ambit of 18
U.S.C § 798.
2. DOJ Is Entitled To Invoke Exemption 3 Based On Affidavits From
The FBI And The NSA Under The Circumstances Presented Here
EPIC does not contest that the statutes that the government relies upon are
withholding statutes, nor does it appear that EPIC rejects the prior substantive
analysis—i.e., that the withheld information at issue in this case can properly be
withheld under Exemption 3. Indeed, it has made no argument to the contrary. But
EPIC does vigorously maintain that DOJ has not followed the right procedure for
establishing the applicability of Exemption 3 with respect to the withholdings at issue.
Specifically, EPIC maintains that a division of DOJ—the NSD—“created and controls
the records at issue” (Pl.’s Mot. at 19), yet there is no declaration from NSD to justify
any of the withholdings; rather, the only declarations the government has provided are
3
Section III.B infra, further explains why the redacted material either constitutes intelligence sources
and methods, or is classified, or has otherwise been properly withheld.
20
from the FBI and NSA (see id.). Continuing along this track, EPIC argues that “[i]t is a
matter of first impression in this Circuit whether a non-[Intelligence Community]
agency can assert an Exemption 3 claim based on [Section 102A(i)(1) of] the National
Security Act.” (Id. at 20.) EPIC further maintains that DOJ has asserted Exemption 3
belatedly and in bad faith, and that DOJ in fact waived the exemption by not asserting it
during the prior round of summary judgment briefing in this matter. (Id. at 19; Pl.’s
Opp’n at 10–11.)
The Court will address this last alleged procedural deficiency first: given the
convoluted procedural history of the instant case, EPIC’s argument that the government
has waived the right to rely on Exemption 3 by failing to invoke that exemption in its
earlier Vaughn Index is not well-founded. The parties here have engaged in two rounds
of summary judgment briefing before this Court, and at this Court’s request, the
government has now provided a more detailed explanation of its withholdings, asserting
Exemption 3 along with the previously-raised Exemptions 1 and 7(E). The Court does
not perceive the government as having acted in bad faith, nor does it view the
government’s filings as providing post-hoc rationalizations for withholdings already
made. Rather, the document-production process is a fluid one at the district-court level,
and it often includes contemporaneous review and continuous production
determinations by agency-defendants. Thus, in this Court’s view, the government is
entitled to articulate fully all of the justifications for the withholdings that it makes
prior to the Court’s ruling on summary judgment—and this is especially so when the
Court has expressly invited it to do so.
21
To be sure, the D.C. Circuit’s precedent prohibits an agency from invoking new
FOIA exemptions when the proceeding is before the district court after remand,
following an appeal, as EPIC points out. (See Pl.’s Opp’n at 10 (citing Maydak v. DOJ,
218 F.3d 760, 764 (D.C. Cir. 2000).) But the D.C. Circuit’s holding is clearly grounded
in finality concerns. See Maydak, 218 F.3d at 764 (finding that allowing an agency to
invoke new FOIA exemptions on remand—thereby essentially restarting the litigation—
could interfere with the FOIA’s “statutory goals of ‘efficient, prompt, and full
disclosure of information,’ and with ‘interests of judicial finality and economy’”
(quoting Senate of Puerto Rico v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987))); see also
CREW v. DOJ, 854 F.3d 675, 680–81 (D.C. Cir. 2017) (holding that district court erred
in allowing agency to assert new FOIA exemption when considering case on remand);
Senate of Puerto Rico, 823 F.2d at 580 (noting that agencies cannot “make new
exemption claims to a district court after the judge has ruled in the other party’s favor”)
(citation omitted). And no such problem is present here, because the Court never
reached the merits of the parties’ initial summary judgment motions, and there have not
yet been any appellate proceedings. What is more, as far as this Court can tell, EPIC
has not been prejudiced in any meaningful sense by the delay in the government’s
assertion of Exemption 3, nor has it provided any evidence of bad faith with respect to
the government’s timing on this issue. (See Pl.’s Mot. at 19.)
EPIC’s contention that DOJ is not the proper agency to invoke Exemption 3 (see
Pl.’s Mot. at 20 (“The National Security Act restricts the ability of the DNI, not civilian
agencies, to release certain information”)), and that its reliance on affidavits from NSA
and the FBI is improper (see id. at 19 (“The DOJ has not submitted any declaration
22
from the NSD, the agency that created and controls the records at issue, to justify the
Exemption 3 claim”)), fares no better. The record clearly reveals that DOJ followed a
referral process when it responded to EPIC’s FOIA request, consistent with the
agency’s regulations. Specifically, DOJ’s regulations expressly provide that, when a
DOJ component that is processing a FOIA request “believes that a different component,
agency, or other Federal Government office is best able to determine whether to
disclose [a certain] record, the component typically should refer the responsibility for
responding to the request regarding that record, as long as the referral is to a component
or agency that is subject to the FOIA.” 28 C.F.R. 16.4(d)(2)(i). Moreover, and
importantly, when such a referral takes place, “the second agency . . . then becomes
responsible for directly responding to the requester as to those documents.” Schoenman
v. FBI, No. 04-cv-2202, 2009 WL 763065, at *6 (D.D.C. Mar. 19, 2009). The
applicable regulations further prescribe a more limited “consultation” procedure that
applies “[w]hen records originated with the component processing the request, but
contain within them information of interest to another component, agency, or other
Federal Government office[.]” 28 C.F.R. § 16.4(d)(1). In that circumstance, “the
component processing the request should typically consult with that other component or
agency prior to making a release determination.” Id.
Here, the undisputed evidence establishes that DOJ’s NSD referred the SARs and
Westlaw printouts to the FBI and NSA pursuant to these regulations with the intent of
having those other agencies determine whether any exemptions should be invoked. (See
Bradley Decl. ¶ 7 (“In addition, NSD referred documents to the [NSA, FBI, and CIA].”)
Courts in this district have long recognized the permissibility of such a referral, see,
23
e.g., Elec. Privacy Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 92 (D.D.C. 2011), and EPIC
neither challenges the validity of DOJ’s referral regulations nor cites any authority that
limits the ability of the agency receiving the FOIA referral to invoke any otherwise-
applicable FOIA exemption. (See Pl.’s Mot. at 19–21.) 4 EPIC also fails to explain, or
support, its suggestion that an agency’s compliance with its own referral regulations
constitutes “bad faith[.]” (See id. at 19.) As such, EPIC’s arguments about NSD’s
limited authority provide no basis for invalidating the government’s assertion of
Exemption 3.
In the final analysis, this Court finds no procedural impropriety in DOJ’s
reliance on the FBI and NSA affidavits to support the invocation of Exemption 3,
despite the fact that the withheld records are under NSD’s control. And with respect to
Section 102A(i)(1) in particular, the referral process that was followed here indicates
that a member of the Intelligence Community was the relevant decision-maker with
respect to these records, and has called for their withholding, precisely as Section
102A(i)(2) envisions.
B. The Government Can Also Withhold The Information At Issue Under
Exemption 1
FOIA’s Exemption 1 provides an independent and alternative justification for the
government’s withholding of the disputed portions of the SARs and the Westlaw
printouts. Exemption 1 permits an agency to withhold information that is “specifically
authorized under criteria established by an Executive order to be kept secret in the
4
This is for good reason, as it makes little sense to instruct an agency to refer documents to another
agency for the latter agency to make exemption determinations (or, if the consultation process is used,
to consult with another before making its own release determination), but at the same time circumscribe
the ability of either agency to invoke an otherwise-applicable FOIA exemption as a result of the referral
or consultation.
24
interest of national defense or foreign policy” and is “in fact properly classified
pursuant to such Executive order[,]” 5 U.S.C. § 552(b)(1)(A). “Thus, an agency
attempting to withhold information under [E]xemption 1 must show that it ‘complies
with classification procedures established by the relevant executive order and withholds
only such material as conforms to the order’s substantive criteria for classification.’”
Mobley v. DOJ, 870 F. Supp. 2d 61, 66 (D.D.C. 2012) (quoting King v. DOJ, 830 F.2d
210, 214 (D.C. Cir. 1987)).
As relevant here, Executive Order 13,526 governs the classification of national
security information and delineates four conditions that must be met for information to
be deemed “classified” properly:
(1) an original classification authority is classifying the
information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and
(4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which
includes defense against transnational terrorism, and the original
classification authority is able to identify or describe the damage.
Exec. Order 13,526 of Dec. 29, 2009 § 1.1, Classified National Security Information, 75
Fed. Reg. 705, 707 (Jan. 5, 2010) (“E.O. 13,526”). Notably, in section 1.4, the
Executive order references eight specific categories of information that “could
reasonably be expected to cause identifiable or describable damage to the national
security[,]” including information pertaining to “intelligence activities (including covert
action) [and] intelligence sources or methods, . . . foreign relations or foreign activities
25
of the United States, . . . [or] vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the national
security[.]” E.O. 13,526 § 1.4(c), (d), (g). Thus, if information that is responsive to a
FOIA request fits into any of the eight categories, and if an original classifying
authority has designated the information classified based on that authority’s
determination that the unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, the information has properly been
deemed “classified” and the government can invoke Exemption 1 to withhold the
information from disclosure under the FOIA. See Larson v. Dep’t of State, 565 F.3d
857, 864 (D.C. Cir. 2009) (in evaluating whether material is properly classified, a court
must “accord substantial weight to an agency’s affidavit concerning the . . . classified
status of the disputed record”) (internal quotation marks and citation omitted).
In this case, the invocation of Exemption 1 is proper, because the government
has both pointed to an applicable Executive Order and established through its
declarations that the withheld material is properly classified under the Order’s terms.
1. The Remaining SARS Challenges Concern Information That Has
Properly Been Deemed Classified
EPIC challenges the government’s withholding of information in the SARs that
pertains to summaries of FISC legal opinions, descriptions of the scope of the FISC’s
jurisdiction, and discussions of process improvements on Exemption 1 grounds, because
in EPIC’s view, such information cannot properly be deemed classified. (See Pl.’s Mot.
at 16–18.) This Court disagrees. Notwithstanding the fact that the challenged SARs
redactions concern legal opinions and descriptions, it is clear that they nevertheless
satisfy the criteria for classification set forth in Executive Order 13,256.
26
First of all, the challenged SARs information indisputably satisfies the first and
second criteria of Executive Order 13,256. See 75 Fed. Reg. at 707. Hardy and
Sherman each declares that he has the requisite classification authority (see Hardy
Suppl. Decl. ¶ 2; Decl. of Alan J. Sherman (“Sherman Decl.”), ECF No. 22-6, ¶ 2), and
there is no dispute that United States Government has control of the withheld material
(see Hardy Suppl. Decl. ¶ 11; Sherman Decl. ¶ 2).
The challenged SARs information also constitutes “intelligence sources and
methods” within the meaning of section 1.4 of Executive Order 13,256, and thus,
satisfies the third criterion. Section 1.4(c) of Executive Order 13,526 provides that
information can be deemed classified when “it pertains to . . . intelligence activities
(including covert action), intelligence sources or methods, or cryptology[,]” E.O.
15,526 § 1.4(c) (emphasis added), and both Sherman and Hardy declare that the
redacted portions of the SARs satisfy this requirement. (See Hardy Suppl. Decl. ¶ 11
(declaring that FBI information in the SARs “is exempt from disclosure pursuant to
E.O. 13526, §1.4, category (c) intelligence activities (including covert action),
intelligence sources and methods, or cryptology”); Sherman Suppl. Decl. ¶ 3 (“I have
determined that the NSA information at issue in this case concerns. . . intelligence
sources, methods, vulnerabilities and capabilities, and foreign activities of the United
States (citing E.O. 13526 § 1.4(d), (g)).) In this regard, the redacted declarations do
appear largely conclusory, but the unredacted versions of their statements provide
additional detail in support of this contention, and as noted, the national security-related
opinion of qualified government officials is entitled to substantial deference in the
classification realm. See Larson, 565 F.3d at 864.
27
EPIC appears to concede that, insofar as the withheld materials concern pen
registers, “a pen register is a ‘method’ of intelligence gathering” (Pl.’s Mot. at 16), but
it maintains that the “particular interpretation of the FISA pen register provision by the
FISC is not itself a ‘source’ or ‘method’ of intelligence gathering, but a legal judgment”
(Pl.’s Mot. at 17 (emphasis added).) This argument misses the mark entirely. The
relevant question is not the nature of the withheld information (here, a decision of the
FISC and any derivative discussion contained in the SARs), or whether the requested
material constitutes a protected form of information in and of itself, but instead whether
the withheld information “pertains to” an intelligence source or method. E.O. 15,526
§ 1.4(c) (emphasis added); see also ACLU v. CIA, 109 F. Supp. 3d 220, 236 (D.D.C.
2015) (“Thus, a legal analysis need not constitute an intelligence activity, source, or
method by itself to warrant protection so long as it pertains to an intelligence activity,
source, or method.”), aff’d sub nom., ACLU v. DOJ, 640 F. App’x 9 (D.C. Cir. 2016);
N.Y. Times Co. v. DOJ, 915 F. Supp. 2d 508, 535 (S.D.N.Y. 2013) (finding “no reason
why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters
that are themselves classified”), aff’d in part, rev’d in part on other grounds, 756 F.3d
100 (2d Cir. 2014). And this Court’s in camera review of the identified SARs
withholdings reveals that the withheld material not only broadly pertains to intelligence
sources and methods, as both Sherman and Hardy declare, but also (1) reveals details
about specific surveillance techniques in the context of summaries of FISC decisions
and legal analysis (see Document 124 at 3-4; Document 125 at 3–5, 50–52; Document
126 at 56–60; Document 127 at 58–61); (2) discusses particular strengths, weaknesses,
and/or potential changes in FISC processes (see Document 125, Page 59); (3) describes
28
the scope of the FISC’s jurisdiction as it relates to specific intelligence sources and
methods (see Document 124 at 47, 50); and provides specific, non-public, factual
information regarding NSA signals intelligence methods (see Document 129, at 51).
The fourth and final criterion of E.O. 13,256 requires a classification authority to
both determine “that the unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security” and articulate such damage, E.O.
13,526, § 1.1(a), and this Court finds that Sherman and Hardy have made sufficient
efforts in this regard. Notably, such an authority’s assessment of the harm to national
security “need only be both ‘plausible’ and ‘logical’ to justify the invocation of a FOIA
exemption in the national security context[,]” ACLU v. U.S. Dep’t of Def., 628 F.3d
612, 624 (D.C. Cir. 2011) (citing Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)),
and the D.C. Circuit has clarified that:
“[i]f 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, . . . the [district] 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.”
Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009).
Without even considering the declarations, it is eminently logical that publicly
disclosing the strengths, weaknesses, and/or changes in the FISC’s own processes, or
the limits of the FISC’s jurisdiction, presents a risk that potential targets will alter their
behavior to account for the disclosed practices and/or limitations. See, e.g., Sack v.
U.S. Dep’t of Def., 823 F.3d 687, 695 (D.C. Cir. 2016) (holding that the agency
properly withheld reports regarding the use of polygraphs for the purpose of
background investigations, when revealing information “pertaining to the strengths of
29
polygraphs, their weaknesses, or anything else [] would create at least a risk that
subversive individuals will be armed with advanced knowledge of the procedures used
by the United States to screen applicants for sensitive employment positions and
security clearances”) (internal quotation marks and citation omitted). Adding to this the
Court’s review of the classified versions of the Hardy and Sherman Supplemental
Declarations, the Court notes that the unredacted declarations contain detailed and
logical explanations of the plausible harm that might flow from revealing to potential
targets the details about the surveillance methods and techniques that are discussed in
the challenged records (see Classified Hardy Suppl. Decl. ¶¶ 30–31, 34–36, 39, 43;
Classified Sherman Suppl. Decl. ¶¶ 9-11), which is all that criterion four requires.
EPIC’s only response is to point to the USA FREEDOM ACT, Pub. L. 114-23,
129 Stat. 268 (see Pl.’s Mot. at 11), which is a statute that requires the Director of
National Intelligence to “make publicly available to the greatest extent practicable each
[] decision, order, or opinion” of the FISC “that includes a significant construction or
interpretation of any provision of law[,]” 50 U.S.C. § 1872(a), but this invocation falls
far short of rebutting the reasoned assessments that Hardy and Sherman have made.
That is, even if Congress has determined that FISC opinions should generally be made
public, as EPIC argues, that this is not an iron-clad statutory mandate, for the statute
also establishes that the Director of National Intelligence can waive this disclosure
requirement if he or she determines that waiver “is necessary to protect the national
security of the United States or properly classified intelligence sources or methods[.]”
50 U.S.C. § 1872(c). What is more, the FREEDOM ACT was enacted in June 2015—
well after the reports at issue here were created—and there is nothing to indicate that
30
Congress intended the statute to apply retroactively to prior FISC decisions. Cf.
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (“[I]t has become a rule of
general application that a statute shall not be given retroactive effect unless such
construction is required by explicit language or by necessary implication.”) (internal
quotation marks and citation omitted).
Thus, based on its review of both the unredacted SARs and the classified
declarations, this Court finds that the government has established that the material it
redacted from the SARs is properly classified, see E.O. 13,256, and therefore can be
withheld under Exemption 1.
2. The Westlaw Printouts Can Be Withheld Under Exemption 1,
Notwithstanding The Fact That This Particular Information Is
Otherwise Publicly Available
The Court has conducted the same four-factor classification analysis with respect
to the Westlaw printouts that are attached to the brief submitted to the FISC. As with
the SARs, there is no question that (1) the government relies upon an Executive order
that permits it to classify national security information, see id., thereby satisfying the
first factor; (2) Hardy has the requisite classification authority and the government
controls the material (see Hardy Suppl. Decl. ¶ 2), which satisfies prong two; and (3)
the printouts pertain to the FBI’s intelligence methods and activities (see Pl.’s Mot. at
17), which satisfies the third prong of the applicable framework.
The parties’ dispute thus centers around the risks of harm associated with
disclosure of these printout outs, which are otherwise publicly available on Westlaw.
EPIC maintains that the Westlaw printouts cannot themselves be withheld under
Exemption 1 because their public status dispels any risk of harm from disclosure in this
matter. (See id. (“The DOJ’s argument that publicly available Westlaw printouts are
31
also exempt from disclosure reveals the absurdity of the agency’s position.”).) The
government acknowledges that the Westlaw printouts may appear “otherwise
innocuous[,]” (see Def.’s Opp’n at 13), but it insists that the printouts must be
evaluated in the context in which they exist for the purpose of the instant FOIA
request—i.e., as attachments to a classified brief submitted to the FISC—and, when so
viewed, the printouts may properly be withheld as classified (see id.). In this regard,
the government’s core contention is that, “when read or viewed within the context of
other available documents and information,” even seemingly innocuous, publicly
available information can “reveal highly sensitive information to sophisticated
adversaries, such as critical details about important investigative methods and
techniques used by the FBI in national security investigations.” (2d Decl. of David M.
Hardy, ECF No. 24, ¶ 37; Mot. Hr’g. Tr. at 29 (“That the MPD here in D.C. may use a
pen register trap and trace or some more specific technique under its authority under
criminal law to apprehend drug dealers or whoever else here in D.C. is not the same as
the FBI acknowledging or confirming that the FBI or the U.S. intelligence community
or otherwise uses this authority to interdict or apprehend terrorists[.]”).)
In this Court’s view, the government has the better of this argument. Indeed, the
Executive order that governs classification of information expressly contemplates a
situation in which otherwise unclassified materials may nevertheless be deemed
classified depending on the context in which they are retrieved—it states that
“[c]ompilations of items of information that are individually unclassified may be
classified if the compiled information reveals an additional association or relationship
that: (1) meets the standards for classification under this order, and (2) is not otherwise
32
revealed in the individual items of information.” E.O. 13,526 § 1.7(e). Furthermore,
the D.C. Circuit has long held that, in the context of reviewing classification of
information, courts must keep in mind that “[e]ach individual piece of intelligence
information, much like a piece of a jigsaw puzzle, may aid in piecing together other bits
of information even when the individual piece is not of obvious importance in itself.”
Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980); see also Ctr. for Nat’l Sec.
Studies v. DOJ, 331 F.3d 918, 929 (D.C. Cir. 2003) (holding that the government
properly invoked a FOIA exemption to withhold a list of all of the individuals detained
in its post-September 11 terrorism investigation, even where some names had already
been publicly disclosed, because the compiled list “could be of great use to al Qaeda in
plotting future terrorist attacks or intimidating witnesses in the present investigation”);
Taylor v. Dep’t of the Army, 684 F.2d 99, 104–105 (D.C. Cir. 1982) (upholding
classification of compilation of information on army combat units even though
individual pieces of information were not classified). It is also clear beyond cavil that
“[t]hings that d[o] not make sense to the District Judge would make all too much sense
to a foreign counter-intelligence specialist who could learn much about this nation’s
intelligence-gathering capabilities from what these documents revealed about sources
and methods.” United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989).
Mindful of the deference it must afford to the government in this context, see
Ctr. for Nat’l. Sec. Studies, 331 F.3d at 929, this Court finds that the government’s
explanation of the harm that might result from release of the Westlaw printouts, and
how such a disclosure could reveal national security information that is not evident
from looking at the documents in isolation, is reasonable and sufficient to support its
33
invocation of Exemption 1. (See Mot. Hr’g Tr. at 30 (“[R]eleasing these Westlaw
printouts in this context even without the memo to which they were attached . . . would
confirm to adversaries of the United States that there was a significant legal
interpretation by the FISA court at a certain time involving the specific uses of FISA
PR/TT authority that are nonpublic.”).) In this regard, the Court accepts the
government’s assertion that the Westlaw printouts and the main brief to which they are
attached are rightfully construed as a single document, and that disclosure of the
attachments would elucidate the substance of the main (undeniably classified)
document, such that the government is entitled to withhold the attachments themselves.
Mobley, 924 F. Supp. 2d at 73 (CIA properly withheld documents where, because of the
nature of the documents, “revealing even small portions of the documents would tend to
reveal the specific information the CIA is seeking to protect.” (internal quotation marks
and citation omitted)). Cf. Charles v. Office of the Armed Forces Med. Exam’r, 979 F.
Supp. 2d 35, 45–46 (D.D.C. 2013) (where disclosure of any portion of draft document
would reveal agency’s protected editorial process, entire document was exempt from
disclosure and no portions were reasonably segrable).
C. No Reasonably Segregable Information Exists In The Withheld
Documents
To the extent that EPIC’s argument regarding the government’s withholding of
the Westlaw printouts can be cast as a general segregability contention (see Pl.’s Mot.
at 24), the argument misunderstands the unseverable relationship between the classified
FISC brief and its attachments, and thus fails for the reasons explained in Part III.B.2
above. EPIC’s more pointed assertion that at least some portion of the Westlaw
printouts themselves should have been released on segregability grounds (see Pl.’s
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Opp’n at 18 (arguing that “it is implausible that entire legal opinions would be devoid
of reasonably segregable material”)) is also misguided, because release of any portion
of a Westlaw document carries with it the reasonable risk that anyone with access to
public electronic databases such as Lexis and Westlaw could proceed to search for the
released language and thereby locate a full copy of the document the government seeks
to protect. 5
As for the SARS, this Court has conducted a careful in camera review of the
information that the government has withheld as well as its classified supplemental
declarations, and it finds that the government has satisfied its obligation “of
demonstrating that no reasonably segregable material exists in the withheld
documents[.]” Barouch, 962 F. Supp. 2d at 56. Stated simply, the SARS redactions are
narrowly tailored, and the Court agrees with the government that it is not possible for
any additional information to be released without disclosing the very information that
the government seeks to protect. See Mobley, 924 F. Supp. 2d at 73.
D. The Government Must Explain Certain Challenged Redactions That
Are Not Adequately Addressed In The Supplemental Submissions
All that said, this Court’s in camera review revealed certain inconsistencies in
the redactions that the government must address. First, the government appears to have
mistakenly labeled certain material as not being within the Remaining Challenges
identified in EPIC II, when it appears to fall within the categories of information that
5
EPIC’s own brief provides an example of just how such reverse-search-engineering is done. (See
Pl.’s Opp’n at 7–8 & n.3 (noting that EPIC was able to determine which unnamed district court case the
government was discussing in a memorandum submitted to the FISC where that case was the only one
“according to a Westlaw search, that includes the same language quoted in the NSD’s Verified
Memorandum of Law”).) Thus, because release of any portion of the case printouts would disclose the
exact information that DOJ seeks to protect, no reasonably segregable material exists in the withheld
documents. Barouch, 962 F. Supp. 2d at 56; Mobley, 924 F. Supp. 2d at 73.
35
are still in dispute. (See, e.g., pages 53–54 of Document 124, under the heading “Other
Legal Interpretations under FISA by the FISC”; page 56 of Document 124, under the
heading “FISA Process Improvements”; and page 69 of Document 127, under the
heading “FISA Process Improvements.”) Based on its review of the unredacted text, the
Court believes that this material may in fact be within the Remaining Challenges, and
therefore, the government must either explain why the Court’s reading is incorrect, or
submit a supplemental declaration that provides an explanation for why the information
is exempt from disclosure.
Second, the government has labeled at least one footnote as outside the
Remaining Challenges even though the footnote pertains to text that the government
admits is within the Remaining Challenges. (See Document 126, page 57.) The Court
will require the government to explain this discrepancy in its supplemental submission,
and if the government agrees that the material is within the Remaining Challenges, it
must provide a declaration that addresses the text of the footnote and why it is exempt
from disclosure.
Third, and finally, on page 59 of Document 127, there is a notation that material
is “within the remaining challenged withholdings,” even though no redactions appear on
the page, and the government will therefore be required to explain the notation that it
has made on this page.
IV. CONCLUSION
After careful consideration of the parties’ briefings and DOJ’s ex parte and
classified submissions, and as set forth in the accompanying Order, the Court upholds
the government’s general invocations of Exemptions 1 and 3 to withhold the remaining
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items at issue in this lawsuit. Therefore, as set forth in its Order of September 30,
2017, DOJ’s motion for summary judgment has been GRANTED IN PART AND
DENIED IN PART and EPIC’s motion for summary judgment has been DENIED
without prejudice with respect to the withholding addressed in the supplemental
declarations.
The Court will provide the government with one final opportunity to support the
withholdings outlined above in Section III.D, and it will require supplemental
submissions as outlined in the Order that accompanies this Memorandum Opinion.
DATE: November 7, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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