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Electronic Privacy Information Center v. National Security Agency

United States District Court, District Circuit

October 21, 2013

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
NATIONAL SECURITY AGENCY, Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff, Electronic Privacy Information Center (“the plaintiff” or “EPIC”), brings this action under the Freedom of Information Act, 5 U.S.C. § 552, claiming that the defendant, the National Security Agency (“the defendant” or “NSA”), wrongfully withheld responsive records to a FOIA request seeking the unredacted text of National Security Presidential Directive (“NSPD”) 54 and related documents.[1] Compl. ¶¶ 15, 55, ECF No. 1. Pending before the Court are the defendant’s Motion for Summary Judgment, ECF No. 12, and the plaintiff’s Cross-Motion for Summary Judgment, ECF No. 13. For the reasons set forth below, both motions are granted in part and denied in part.

I. BACKGROUND

A. Factual History

1. National Security Presidential Directive 54

The main document at issue here, NSPD 54, also known as Homeland Security Presidential Directive 23 (“HSPD 23”), was issued by then-President George W. Bush on January 8, 2009. Declaration of Diane M. Janosek, Deputy Associate Director for Policy and Records, NSA, (“Janosek Decl.”) ¶ 8, ECF No. 12-2. “NSPD 54 is a confidential communication from the President of the United States to a select and limited group of senior foreign policy advisors, cabinet officials, and agency heads on the subject of cybersecurity policy.” Decl. of Mary Ronan, Director of Access Management Office, National Security Staff (“Ronan Decl.”) ¶ 7, ECF No. 12-10; see also Def.’s Mem. Supp. Mot. for Summ. J. (“Def.’s Mem.”) at 3, ECF No. 12-1. “NSPD 54 also implemented the [Comprehensive National Cybersecurity Initiative (“CNCI”)].” Janosek Decl. ¶ 8. It was distributed with a “transmittal memo” from the Homeland Security Council’s Executive Secretary that “emphasized NSPD-54’s close-hold nature and the need to safeguard its content.” Ronan Decl. ¶ 7. This transmittal memo “prohibited dissemination of the document beyond its authorized recipients without White House approval and further instructed that even within receiving agencies, copies should be distributed only on a need to know basis.” Id. The document is classified “Top Secret” but includes portions that are unclassified.[2] Id. ¶ 8.

2. The Plaintiff’s FOIA Request

In June 2009, the plaintiff submitted a FOIA request to the NSA seeking “National Security Presidential Directive 54 . . . and related records” from the defendant. Janosek Decl. Tab A at 3, ECF No. 12-3. Specifically, the FOIA request sought: (1) “The text of the National Security Presidential Directive 54 otherwise referred to as The Homeland Security Presidential Directive 23[;]” (2) “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 (3) “Any privacy policies related to either the Directive, [or] 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.” Id. at 5.[3] On August 14, 2009, the defendant released two redacted documents, USSID SP0018 and NSA/CSS Policy 1-23, responsive to the third part of the plaintiff’s request that had been previously released pursuant to the FOIA.[4] Janosek Decl. ¶ 13. With that release, the defendant notified the plaintiff that other responsive records had also been located and were under review “to determine what information could be released and the [the defendant] would finish [its] review as expeditiously as possible.” Id.

By letter dated October 26, 2009, the defendant informed the plaintiff that it had no records responsive to the second part of the plaintiff’s request. Janosek Decl. Tab F at 1, ECF No. 12-8. Of the three documents responsive to the first and third parts of the plaintiff’s request, two were being withheld in their entirety under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure “inter-agency or intra-agency memoranda or letters which would not be available by law to a party in litigation with the agency.” Janosek Decl. Tab F at 1. Portions of the same documents were also being withheld under FOIA Exemption 1, 5 U.S.C. § 552(b)(1), which exempts from disclosure items properly classified. Id. at 1–2. The third document was not released as it “did not originate with this Agency” and had “been referred to the National Security Council for review and direct response to [the plaintiff].” Id. at 2.

The plaintiff timely filed an administrative appeal of these determinations. Janosek Decl. ¶ 17. While the appeal was pending, the plaintiff timely filed the instant action. Id. The defendant subsequently released redacted copies of IAD Management Directive 20 and NSA/CSS 1-58, which were the two documents it referred to in the October 26, 2009 letter as being withheld in their entirety under Exemption 5. Id. ¶ 15 n.2. Portions of those documents continued to be withheld under Exemptions 1 and 3. Id. Thus, at issue in this case are the portions of IAD Management Directive 20 and NSA/CSS 1-58 withheld under Exemptions 1 and 3, and NSPD 54. Id. NSPD 54 is the document that did not originate with the defendant agency, and is being withheld in its entirety under the presidential communications privilege portion of Exemption 5, 5 U.S.C. § 552(b)(5), with one paragraph also being withheld under Exemptions 1 and 3. See Janosek Decl. ¶ 34.

B. Procedural History

The plaintiff filed the instant action against the Defendant and the National Security Council (“NSC”) asserting four claims for relief regarding the defendant’s alleged failure to comply with the FOIA’s statutory deadlines and to disclose responsive agency records (Counts One and Two); the National Security Council’s alleged failure to disclose responsive agency records (Count 3); and the defendant’s alleged violation of the Administrative Procedure Act, 5 U.S.C. § 706 (Count 4). See Compl. ¶¶ 52–73. The Complaint seeks production of all responsive records, a Vaughn index describing all records withheld and the exemptions under which they are being withheld, and attorneys’ fees. Id. at 10–11.

The defendant and the NSC filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as to Counts Three and Four and to dismiss all claims against the NSC. See Def.’s Partial Mot. to Dismiss at 1, ECF No. 4. This motion was granted because the NSC is not an “agency” within the meaning of the FOIA, see Mem. Op. at 8–9, ECF No. 9, and adequate relief is available to the plaintiff under the FOIA without resort to the APA. See Id . at 14.

Now pending before the Court are the parties’ cross motions for summary judgment on the remaining counts, Counts One and Two. After the motions were fully briefed, the D.C. Circuit released its opinion in Judicial Watch, Inc. v. United States Secret Service, 726 F.3d 208 (D.C. Cir. 2013) (“Judicial Watch”), which, for the first time, applied the “control” test for whether a record is an “agency record” set forth in United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004) (“United We Stand”), to the Office of the President. See Judicial Watch, 726 F.3d at 231. The Court invited the parties to supplement their briefing as to whether NSPD 54 was an “agency record” under the United We Stand test. See Minute Order dated September 9, 2013. The parties declined to do so. See Joint Status Report at 1, ECF No. 26. The motions are now ripe for decision.

II. LEGAL STANDARD

Congress enacted the FOIA as a means “to open agency action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). The Supreme Court has “consistently recognized [] the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute represents a “balance [of] 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 Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy, 131 S.Ct. 1259, 1262 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Ofc. of Mgmt. and Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361.

The agency invoking an exemption to the FOIA has the burden “to establish that the requested information is exempt.” Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 351-352 (1979); see also Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (holding that the agency “bears the burden of establishing the applicability of the claimed exemption.”). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and explanation the agency offers ...


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