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Willis v. National Security Agency

United States District Court, District of Columbia

April 30, 2019

CALLEN WILLIS, Plaintiff,
v.
NATIONAL SECURITY AGENCY, Defendant.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON, United States District Judge.

         Plaintiff Callen Willis sincerely believes that federal government records might represent her “as having been affiliated with and/or having been under contract with the United States government minimally during 2014 and 2015[.]” (Compl., ECF No. 1, ¶ 3.) To determine whether she has been so misrepresented, in July of 2017, Willis submitted a request to the National Security Agency (“NSA”) seeking “personal records under the Privacy Act.” (Ex. A. to Decl. of Steven E. Thompson (“Thompson Decl.”), ECF No. 11-3 at 18-37 (“PA/FOIA Request”), at 18.)[1] NSA construed Willis's request as one seeking intelligence records on herself under both the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, and the agency responded that it was unable to confirm or deny the existence of any responsive records, in accordance with its standard policy for requests seeking intelligence records. (See Ex. B. to Thompson Decl., ECF No. 11-3 at 39-41 (“PA/FOIA Resp.”), at 39.) NSA also searched its non-intelligence Privacy Act files for records containing Willis's name and social security number, and its FOIA files for records pertaining to litigation she specified in her request, but the agency did not locate any records. (See Thompson Decl. ¶¶ 15-16.) Willis has sued nevertheless, seeking to compel NSA to “make the requested information promptly available to [her][.]” (Compl., Count I, ¶ 11(a).)

         Before this Court at present is NSA's motion for summary judgment, in which the agency argues that it properly refused to confirm or deny the existence of any intelligence records regarding Willis and further conducted a reasonable and adequate search for non-intelligence records pertaining to her. (See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 11, at 1.) Willis has filed a one-paragraph document opposing NSA's motion (see Mot. Opposing Summ. J. (“Pl.'s Opp'n”), ECF No. 13, at 1), and she has also filed a separate one-paragraph motion asking this Court to compel NSA to prepare a Vaughn index (see Mot. to Compel Preparation of a Vaughn Index (“Mot. to Compel”), ECF No. 14, at 1). On March 29, 2019, this Court issued an order that GRANTED NSA's motion for summary judgment and DENIED Willis's motion seeking to compel preparation of a Vaughn index. (See ECF No. 17, at 1.) This Memorandum Opinion explains the reasons for that Order. As discussed fully below, this Court finds that NSA acted properly when it refused to confirm or deny the existence of intelligence records pertaining to Willis, and that NSA conducted a reasonable and adequate search for non-intelligence records responsive to Willis's request. This Court further finds that Willis is not entitled to a Vaughn index under the circumstances presented in this case.

         I. BACKGROUND

         A. Willis's Privacy Act/FOIA Request

         On July 17, 2017, Willis sent a letter to NSA in which she made “a request for personal records under the Privacy Act[, ]” and in particular, records that are related to (1) Willis's employment at a cancer research center, (2) an MCAT exam that Willis took in 2015, (3) a period of hospitalization that Willis endured in 2015, and (4) prior FOIA litigation involving Willis. (PA/FOIA Request at 18; see also Id. at 22.) NSA initially “interpreted [this] request as being for NSA intelligence on [Willis]” under both the FOIA and the Privacy Act, and informed Willis that it is the agency's policy not “to confirm or deny the existence of intelligence records on any and all individuals who request them.” (PA/FOIA Resp. at 39.) NSA cited FOIA Exemptions 1 and 3, as well as a parallel Privacy Act exemption (see Id. at 39-40), and explained its underlying rationale as follows:

To respond to your request, NSA would have to confirm or deny the existence of intelligence records on you. Were we to do so in your case, we would have to do so for every other requester. This would enable, for example, a terrorist or other adversary to file a FOIA request with us in order to determine whether he or she was under surveillance or had evaded it. This in turn would allow that individual to better assess whether they could successfully act to damage the national security of the United States. For such reasons, we can neither confirm nor deny the existence or non-existence of the records you requested.

(Id. at 39.)

         On August 16, 2017, Willis appealed NSA's response to her request. (See Ex. D to Thompson Decl., ECF No. 11-3 at 51-59 (“PA/FOIA Appeal”), at 51.) NSA then reconsidered Willis's request, construing it as one for “NSA records regarding personnel or affiliates.” (See Thompson Decl. ¶ 34.) Based on this construction, NSA reprocessed the request by searching affiliate-related Privacy Act systems of record (see Id. ¶¶ 15-16, 34; see also Ex. E to Thompson Decl., ECF No. 11-3 at 61-62 (“Appeal Decision”), at 61). Specifically, the “NSA tasked its Security and Counterintelligence group . . . to search its affiliate-related PA systems of record for any records containing Ms. Willis's name and social security number.” (Thompson Decl. ¶ 15.) NSA records showed that Willis had “never been affiliated with this Agency”; therefore, “no PA records on [Willis] were located.” (Appeal Decision at 61.) In addition, NSA also searched its FOIA records for information regarding the FOIA litigation that Willis specified in her request, but did not locate any responsive non-intelligence records. (See Thompson Decl. ¶ 15.) With respect to intelligence records, NSA affirmed its initial refusal to confirm or deny the existence of responsive records. (See Appeal Decision at 61.)

         B. Procedural History

         On September 26, 2017, Willis filed the instant complaint, which is 35 pages in length and to which she attaches 229 pages of exhibits; the complaint itself alleges one claim under both the FOIA and the Privacy Act. (See Compl.) Willis explains that the impetus behind her PA/FOIA Request is her concern that “she may have been misrepresented as having been affiliated with and/or having been under contract with the United States government minimally during 2014 and 2015” (id. ¶ 3), and that she seeks the records from NSA “for purposes of correcting errors in an expedited manner” (id., Jurisdiction and Parties, ¶ 4).[2]

         With respect to NSA's response to her request, Willis claims that NSA's search for responsive records was inadequate because the agency limited its search to one system of records, rather than search “ALL records in ALL responsive systems.” (Id., Count I, ¶ 4.) She also maintains that there is no legal basis for NSA to refuse to confirm or deny the existence of responsive records without conducting any search, asserting that “[s]hould records on [an] individual exist within an agency to which a FOIA/PA request was sent, such an agency is required to either provide exemptions and/or release properly redacted documents[.]” (Id., Count I, ¶ 7.) As relief, Willis asks this Court to order NSA to search all its systems of records for all information pertaining to her, including “any and all surveillance of the plaintiff over the course of her lifetime[.]” (Id., Count I, ¶ 11(b).) For any records that the agency withholds or redacts, Willis also requests that the agency be ordered to provide her with a Vaughn index. (See id., Count I, ¶ 11(c).)

         After Willis filed this lawsuit, NSA staff “reviewed the record in this case and noticed that its September 12, 2017 appeal response” was incomplete. (Thompson Decl. ¶ 16.) Specifically, the “affiliate-related system of records did not contain as many types of records” as indicated in the appeal response; the “system only contained personnel, security and partial training records.” (Id.) “As a result, . . . NSA tasked two additional organizations, Occupational Health Services and HR External Recruitment and Hiring, to search their systems of records containing medical and applicant records in order to complete a fulsome search for Plaintiff's PA records.” (Id.) These searches did not locate any responsive records. (See id.)

         NSA filed the motion for summary judgment that is the subject of this Memorandum Opinion on March 23, 2018, and attached to it a declaration from Steven E. Thompson, an NSA employee who oversees the agency's FOIA/PA Office. (See Def.'s Mot.; Thompson Decl.) In its motion, NSA argues that it properly invoked FOIA Exemptions 1 and 3, along with § 552a(k)(1) of the Privacy Act, to refuse to confirm or deny the existence of any intelligence records regarding Willis, because doing so would reveal information that can be withheld pursuant to those statutory exemptions. (See Mem. in Supp. of Def.'s Mot., ECF No. 11-1, at 13-19.) The agency further maintains that it conducted a reasonable search for non-intelligence records responsive to Willis's request. (See Id. at 19-22.)

         Willis's opposition to NSA's motion, which was filed on May 14, 2018, states in its entirety:

Plaintiff, CALLEN WILLIS [self, non-attorney], opposes the NATIONAL SECURITY AGENCY'S (represented by Mr. Daniel Schaefer) motion for summary judgment. Plaintiff, CALLEN WILLIS [self, non-attorney] has a right to a Vaughn Index. There is no legal basis for denying this right.

(Pl.'s Opp'n at 1 (brackets in original).) Willis also filed a separate motion asking this Court to require NSA to produce a Vaughn index for every record it has withheld as exempt. (See Mot. to Compel at 1.) In response to Willis's motion seeking a Vaughn index, NSA argues that it is not obliged to create a Vaughn index in cases where it refuses to confirm or deny the existence of records. (Reply in Supp. of Def.'s Mot.& Resp. in Opp'n to Pl.'s Mot. to Compel, ECF No. 16, at 2.) The parties' motions are now ripe for this Court's consideration.

         II. LEGAL STANDARDS

         A. The FOIA And The Privacy Act

         The FOIA “was enacted to facilitate public access to Government documents[, ]” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation marks and citations omitted), and as relevant here, it requires agencies to make records available upon request, 5 U.S.C. § 552(a)(3)(A) (requiring 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”). “[T]he FOIA also contains nine exemptions-i.e., specified circumstances under which disclosure is not required.” Neuman v. United States, 70 F.Supp.3d 416, 420-21 (D.D.C. 2014) (citing 5 U.S.C. § 552(b)). These exemptions must be construed narrowly, see Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976), and the government bears the burden of demonstrating that any withheld information falls within the claimed exemptions, see Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). Two FOIA exemptions are at issue in this ...


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