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Electronic Privacy Information Center v. National Security Agency

July 7, 2011


The opinion of the court was delivered by: Beryl A. Howell United States District Judge


Pending before the Court is the partial motion to dismiss by the National Security Agency ("NSA") and the National Security Council ("NSC") two of the four claims in the Complaint. These claims stem from a Freedom of Information Act ("FOIA") request that the plaintiff, Electronic Privacy Information Center ("EPIC"), filed with the NSA seeking information related to the Comprehensive National Cybersecurity Initiative, a multi-agency federal initiative to ensure the security of the nation's online infrastructure. In this case, the NSA referred part of the plaintiff's FOIA request to the NSC since a responsive document in the NSA's possession had originated with the NSC. The plaintiff brought this lawsuit against both the NSA and NSC to compel the production of documents responsive to its FOIA request. The plaintiff believes that releasing the documents it seeks "would provide the opportunity for meaningful public participation in the development of new security measures that may have a significant impact on civil liberties, such as privacy." Def.'s Partial Mot. to Dismiss ("Defs.' Mot."), Ex. A at 2-3 (Plaintiff's FOIA Appeal). The defendants now seek to dismiss the plaintiff's claims in Count III, which alleges that the NSC "failed to disclose responsive agency records in its possession in response to the referral by the NSA," Compl. ¶ 66, and in Count IV, which alleges that the NSA violated the Administrative Procedure Act when it referred the FOIA request to the NSC. Id. ¶ 72. For the reasons discussed below, the Court will grant the partial motion to dismiss.*fn1


On June 25, 2009, Plaintiff EPIC submitted a FOIA request to the NSA seeking documents related to the Comprehensive National Cybersecurity Initiative ("CNCI"), an initiative established by former President George W. Bush that outlines federal cyber-security goals. Id. ¶¶ 6, 10, 15.

The plaintiff is a not-for-profit public interest research organization that reviews federal activities and policies to determine their possible impact on civil liberties and privacy interests. Id. ¶ 3. The NSA is an agency within the Department of Defense that is responsible for shielding our nation's coded communications from interception by foreign governments and for secretly intercepting intelligence communications from foreign nations. See Founding Church of Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d 824, 825 (D.C. Cir. 1979); Larson v. Dep't of State, No. 02-01937, 2005 WL 3276303, at *17 (D.D.C. Aug. 10, 2005), aff'd, 565 F.3d 857 (D.C. Cir. 2009).

President Bush established the CNCI on January 8, 2008 by issuing National Security Presidential Directive 54 ("NSPD 54"), also known as Homeland Security Presidential Directive 23. Id. ¶¶ 6, 8. The contents of NSPD 54 have not been released to the public. Id. ¶ 7. The CNCI, as described by the Senate Committee on Homeland Security and Governmental Affairs, is a "multi-agency, multi-year plan that lays out twelve steps to securing the federal government's cyber networks." Id. ¶¶ 9-10. The CNCI was formed "to improve how the federal government protects sensitive information from hackers and nation states trying to break into agency networks." Defs.' Mot., Ex. A at 1-2.

On June 25, 2009, the plaintiff submitted a written FOIA request to the NSA that, in its entirety, sought the following documents:

a. The text of the National Security Presidential Directive 54 otherwise referred to as Homeland Security Presidential Directive 23;

b. The full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative, as well as any executing protocols distributed to the agencies in charge of its implementation; and

c. Any privacy policies related to either the Directive, the Initiative, including but not limited to, contracts or other documents describing privacy policies for information shared with private contractors to facilitate the Comprehensive National Cybersecurity Initiative.

Compl. ¶ 15. The plaintiff also requested an expedited response to its request. Id. ¶ 16. The expedited processing request was initially denied on July 1, 2009, but was granted on August 12, 2009, after the plaintiff filed an administrative appeal. Id. ¶¶ 22, 29.

The NSA responded to the plaintiff's request on August 14, 2009 and produced two redacted documents that had been previously released under FOIA, although the Complaint does not indicate whether the plaintiff was the previous recipient of the documents. Id. ¶ 33. On October 26, 2009, the NSA informed the plaintiff that its request had been processed further and that three records responsive to the request had been located. Id. ¶¶ 36-38. The NSA withheld two of the three records in their entirety, claiming that these two records were exempt from release pursuant to various statutory exemptions to FOIA's disclosure requirements. Id. ¶¶ 39-41. The plaintiff's Complaint indicates the NSA did not provide a factual basis for its determinations that the claimed FOIA exemptions were applicable to the withheld documents.

Id. As for the third record responsive to the plaintiff's request, the NSA indicated that this record did not originate with the NSA, but rather with the NSC, and that the record had therefore been referred to the NSC for "review and direct response to [EPIC]." Id. ¶ 42. The NSC is a presidential advisory group composed of the President, Vice-President, Secretary of State, Secretary of Defense, and other cabinet-level officials, including the National Security Advisor, that advises the President of the United States on national security and foreign policy issues. Armstrong v. Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996); 50 U.S.C. § 402(a).

The plaintiff filed a written administrative appeal to the NSA on November 24, 2009, contesting the NSA's failure to disclose the records that were found responsive to the FOIA request. Id. ¶¶ 43-47. The NSA acknowledged receipt of the appeal on December 18, 2009 and predicted a decision on the plaintiff's appeal "within the next nine months." Id. ¶¶ 48-50. As of February 4, 2010, the date this case was ...

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