Electronic Privacy Information Center v. Department of Justice

• Court: District Court, District of Columbia
• Decided: November 7, 2017
• Docket: Civil Action No. 2013-1961
• Status: Published

Opinion

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

34 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

36 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