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Carter v. National Security Agency

United States District Court, District Circuit

August 26, 2013

GLEN CARTER, Plaintiff,


COLLEEN KOLLAR-KOTELLY, United States District Judge.

This matter is before the Court on Defendant’s Motion for Summary Judgment [ECF No. 10].[1] For the reasons discussed below, the motion will be granted.


In February 2006, Plaintiff submitted a request to the National Security Agency (“NSA” or “Agency”) for the following information:

Information received from the Canadian authorities in the early nineties alerting [NSA] and calling for concern letters I am suspected of having written to a television Christian ministry.
Information portraying me as a dangerous person or, in the alternative, a suspected terrorist.
Information relating to the cross border transfer of personal information of all descriptions to the United States.
Information relating to the interception of communications of all descriptions.
Information relating to the seeking of a remedy to a suspected criminal offence.
Information relating to the issuance of an order, adverse in effect, curtailing my civil liberties in Canada, Barbados and the United Kingdom.
Information relating to a restriction of my freedom of movement and the withholding of individual rights and freedoms under law.[2]

Def.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J., Decl. of Diane M. Janosek (“Janosek Decl.”), Ex. 1 (Letter to NSA, Attn: FOIA/PA Office, from Plaintiff dated February 14, 2006) at 2; see Compl. at 2–3 (page numbers designated by ECF).[3] NSA processed the request under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552. Janosek Decl. ¶ 9 n.1.[4]

“To the extent that Plaintiff’s request could be considered a request for intelligence information, ” NSA treated it as one “for records on the surveillance, targeting, and/or domestic collection of [information pertaining to Plaintiff] by NSA.” Janosek Decl. ¶ 9. Relying on Exemptions 1 and 3, NSA denied the request in its entirety and explained its reasons as follows:

We have determined that the fact of the existence or non-existence of the materials you request is a currently and properly classified matter in accordance with Executive Order 12958, as amended. Thus, your request is denied pursuant to the first exemption of the FOIA which provides that the FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are, in fact[, ] properly classified pursuant to such Executive Order.
In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. The third exemption of the FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption. The specific statutes applicable in this case are Title 18 U.S. Code 798; Title 50 U.S. Code 403-1(i); and Section 6, Public Law 86-36 (50 U.S. Code 402 note).

Id., Ex. 2 (Letter to Plaintiff from Louis F. Giles, Director of Policy, NSA, dated April 20, 2006, regarding FOIA Case No. 48604) at 2.

Plaintiff filed an administrative appeal of NSA’s initial determination on June 19, 2006. See generally id., Ex. 3 (Appeal under Freedom of Information Act, 5 U.S.C. sect. 552, As Amended By Public Law No. 104-231, 110 Stat. 2048). NSA acknowledged its receipt of the appeal on August 3, 2006. Id., Ex. 4 (Letter to Plaintiff from Ariane E. Cerlenko, Associate General Counsel, NSA, regarding Case No. 48604/Appeal No. 3145, dated August 3, 2006). NSA’s initial determination was affirmed, and it was determined that “the appropriate response to [Plaintiff’s] request is to continue to neither confirm nor deny the existence or non-existence of the materials . . . request[ed].” Id., Ex. 5 (Letter to Plaintiff from John Inglis, Freedom of Information Act/Privacy Act Appeals Authority, dated September 14, 2006) at 2. The affirmance was explained in part as follows:

Regardless of whether NSA has records related to you, or any individual, NSA can neither confirm nor deny alleged activities or targets. To do otherwise when challenged under the FOIA would result in the exposure of intelligence information, sources, and methods and would severely undermine surveillance activities in general. For example, if NSA denied allegations about intelligence activities or targets in cases where such allegations were false (e.g., we told one FOIA requester that we had no records), but remained silent in cases were the allegations were accurate, it would tend to reveal that the individuals in the latter cases were ...

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