1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 PETER BYRNE, Case No. 20-cv-08433-CRB
9 Plaintiff,
ORDER ON CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT
11 NATIONAL SECURITY AGENCY, et al., 12 Defendants. 13 14 Plaintiff Peter Byrne sued the National Security Agency and the Department of 15 Defense (collectively, “NSA”) based on the purported failure to produce responsive 16 records pursuant to his Freedom of Information Act (“FOIA”) request. Compl. (dkt. 1). 17 Byrne sought information regarding two operations—Operation Gauntlet and Operation 18 Tailwind—during the Vietnam War. Compl. ¶ 11. The parties filed cross-motions for 19 summary judgment on whether NSA’s search was reasonable and whether its exemptions 20 were appropriate. See NSA MSJ (dkt. 94); Byrne MSJ (dkt. 97)1. The motions have been 21 fully briefed. See NSA Reply (dkt. 101); Byrne Reply (dkt. 102). Having reviewed the 22 parties’ briefs as well as the documents at issue in camera, the Court GRANTS NSA’s 23 motion for summary judgment and DENIES Byrne’s motion.2 24 “FOIA cases are typically and appropriately decided on motions for summary 25 judgment.” Polk v. Fed. Bureau of Investigation, No. 14-CV-4667-PJH, 2016 WL 80564, 26 27 1 Bryne’s brief was an opposition to NSA’s motion for summary judgment in addition to his own cross-motion. 1 at *4 (N.D. Cal. Jan. 7, 2016) (internal citation omitted), aff’d, 693 F. App’x 553 (9th Cir. 2 2017). As FOIA cases rarely involve issues of disputed fact, courts do not apply the 3 typical summary judgment standard. See id. Instead, courts conduct a two-step inquiry. 4 First, a court must evaluate whether a government agency’s search for documents was 5 reasonable. See Zemansky v. U.S. E.P.A., 767 F.2d 569, 571 (9th Cir. 1985). If the 6 agency meets its burden, the court reviews whether any undisclosed information fell within 7 a FOIA exemption. See Polk, 2016 WL 80564 at *5. The Court agrees with NSA that its 8 search for responsive records was reasonable and that it properly invoked exemptions to 9 FOIA. 10 A. Reasonable Search 11 NSA’s search satisfies the standard of reasonableness. “An adequate search is one 12 that is reasonably calculated to uncover all relevant documents.” Pomares v. Dep’t of 13 Veterans Affs., 113 F.4th 870, 879 (9th Cir. 2024) (internal quotation omitted). Courts do 14 not consider “whether the agency produced every responsive document but rather whether 15 its search was reasonable.” Id. Agencies can demonstrate adequate searches by relying on 16 “reasonably detailed, nonconclusory affidavits submitted in good faith.” Zemansky, 767 17 F.2d at 571 (citing Weisberg v. United States Dept. of Justice, 745 F.2d 1476, 1485 18 (D.C.Cir.1984)). “Affidavits submitted by an agency are entitled to a presumption of good 19 faith.” First Amend. Coal. v. U.S. Dep’t of Just., No. 18-CV-05731 SBA, 2021 WL 20 4926977, at *4 (N.D. Cal. Mar. 31, 2021) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 21 1197, 1200 (D.C. Cir. 1991)). 22 NSA has provided such a declaration (and a supplemental one) from Joy Garrett, 23 the Acting Chief of Enterprise Guidance Services at NSA. See Garrett Decl. (dkt. 94-2); 24 Garrett Supp. Decl. (dkt. 101-1). Garrett’s declaration comprehensively walks through 25 NSA’s three searches pursuant to Byrne’s request. See Garrett Decl. ¶¶ 15–46 (search 26 terms such as “operation gauntlet” and “Laos AND radio communication AND ((POW) 27 OR prisoner of war)”). 1 inadequate. He contends that Garrett’s declaration lacks detail3, that NSA does not explain 2 why it narrowed the scope of the agency components it searched, and that NSA excluded 3 his requested search terms. Byrne MSJ at 8–16. Each argument is unavailing. 4 1. Declaration Detail 5 For starters, Garrett’s declaration generally sets forth “the search terms and the type 6 of search performed, and aver[s] that all files likely to contain responsive materials (if such 7 records exist) were searched.” Polk, 2016 WL 80564 at *5 (quoting Mobley v. CIA, 806 8 F.3d 568, 580-81 (D.C. Cir. 2015)). The declaration covers each of the search terms used 9 for text mining, the locations searched, and even examples of documents reviewed. See 10 Garrett Decl. ¶¶ 15–46. For example, NSA used the term “Laos AND radio 11 communication AND ((POW) OR prisoner of war),” which targets documents responsive 12 to Byrne’s request for radio communication records related to American prisoners of wars 13 in Laos. See id. ¶ 15; Compl. ¶ 11. Byrne, however, says more is required . He argues 14 that the declaration omits specific details, such as how the text mining searches were 15 conducted or how long the process took. See Byrne MSJ at 10 (describing Garrett’s 16 declaration as “boilerplate and entirely conclusory”). But affidavits “need not set forth 17 with meticulous documentation the details of an epic search for the requested records.” 18 Transgender L. Ctr. v. Immigr. & Customs Enf’t, 46 F.4th 771, 780 (9th Cir. 2022) 19 (citation modified). What Garrett describes is sufficient and entitled to a presumption of 20 good faith.4 21 2. Scope of Agency Components 22 Next, Byrne asserts that NSA does not adequately explain why it “unreasonably 23 24 3 Byrne also argues that Garrett “fails to declare that she has personal knowledge of the searches.” Byrne MSJ at 8–9. But courts have squarely held that “an agency’s declarations in FOIA cases are 25 exempt from [a] ‘personal knowledge requirement.’” Schoeffler v. United States Dep’t of Agric., 795 F. App’x 526, 527 (9th Cir. 2020) (quoting Garris v. FBI, 937 F.3d 1284, 1292–93 (9th Cir. 26 2019)). In his reply, Byrne appears to reframe his argument to assert that he meant Garrett lacked enough knowledge to provide a sufficiently detailed declaration. See Byrne Reply at 3. As the 27 Court will explain, Garrett’s declaration meets the standard for reasonableness. 4 Garrett’s supplemental declaration provides additional information to assuage Byrne’s concerns, 1 narrowed the scope of components it searched.” Byrne MSJ at 10. He agrees that NSA 2 searched the Records Management Division, the Center for Cryptologic History, one NSA 3 Operations Directorate office, the office that handles NSA engagement with the White 4 House, and the office that handles all formal interagency correspondence. Id. But he 5 argues that NSA’s stated reason for searching those particular components is conclusory 6 and that NSA must explain why it did not search other ones. Id. at 11. The Court 7 disagrees. 8 Garrett avers that those “specific offices were all selected to conduct searches based 9 on the historical age of the records sought by the FOIA request, the subject matter of the 10 request, and the request’s prongs asking for interagency communications.” Garrett Decl. ¶ 11 26. She also explains that the White House and interagency engagement offices “were the 12 most likely to have custody of any responsive documents” based on Byrne’s request for 13 communications between officials at the Pentagon, State Department, and the White 14 House. Id. ¶ 27. Such reasoning is hardly conclusory. 15 Moreover, Byrne cannot point to any legal authority that requires NSA to explain 16 why it did not search all other component offices. Cf. Valencia-Lucena v. U.S. Coast 17 Guard, 180 F.3d 321, 327 (D.C. Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 PETER BYRNE, Case No. 20-cv-08433-CRB
9 Plaintiff,
ORDER ON CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT
11 NATIONAL SECURITY AGENCY, et al., 12 Defendants. 13 14 Plaintiff Peter Byrne sued the National Security Agency and the Department of 15 Defense (collectively, “NSA”) based on the purported failure to produce responsive 16 records pursuant to his Freedom of Information Act (“FOIA”) request. Compl. (dkt. 1). 17 Byrne sought information regarding two operations—Operation Gauntlet and Operation 18 Tailwind—during the Vietnam War. Compl. ¶ 11. The parties filed cross-motions for 19 summary judgment on whether NSA’s search was reasonable and whether its exemptions 20 were appropriate. See NSA MSJ (dkt. 94); Byrne MSJ (dkt. 97)1. The motions have been 21 fully briefed. See NSA Reply (dkt. 101); Byrne Reply (dkt. 102). Having reviewed the 22 parties’ briefs as well as the documents at issue in camera, the Court GRANTS NSA’s 23 motion for summary judgment and DENIES Byrne’s motion.2 24 “FOIA cases are typically and appropriately decided on motions for summary 25 judgment.” Polk v. Fed. Bureau of Investigation, No. 14-CV-4667-PJH, 2016 WL 80564, 26 27 1 Bryne’s brief was an opposition to NSA’s motion for summary judgment in addition to his own cross-motion. 1 at *4 (N.D. Cal. Jan. 7, 2016) (internal citation omitted), aff’d, 693 F. App’x 553 (9th Cir. 2 2017). As FOIA cases rarely involve issues of disputed fact, courts do not apply the 3 typical summary judgment standard. See id. Instead, courts conduct a two-step inquiry. 4 First, a court must evaluate whether a government agency’s search for documents was 5 reasonable. See Zemansky v. U.S. E.P.A., 767 F.2d 569, 571 (9th Cir. 1985). If the 6 agency meets its burden, the court reviews whether any undisclosed information fell within 7 a FOIA exemption. See Polk, 2016 WL 80564 at *5. The Court agrees with NSA that its 8 search for responsive records was reasonable and that it properly invoked exemptions to 9 FOIA. 10 A. Reasonable Search 11 NSA’s search satisfies the standard of reasonableness. “An adequate search is one 12 that is reasonably calculated to uncover all relevant documents.” Pomares v. Dep’t of 13 Veterans Affs., 113 F.4th 870, 879 (9th Cir. 2024) (internal quotation omitted). Courts do 14 not consider “whether the agency produced every responsive document but rather whether 15 its search was reasonable.” Id. Agencies can demonstrate adequate searches by relying on 16 “reasonably detailed, nonconclusory affidavits submitted in good faith.” Zemansky, 767 17 F.2d at 571 (citing Weisberg v. United States Dept. of Justice, 745 F.2d 1476, 1485 18 (D.C.Cir.1984)). “Affidavits submitted by an agency are entitled to a presumption of good 19 faith.” First Amend. Coal. v. U.S. Dep’t of Just., No. 18-CV-05731 SBA, 2021 WL 20 4926977, at *4 (N.D. Cal. Mar. 31, 2021) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 21 1197, 1200 (D.C. Cir. 1991)). 22 NSA has provided such a declaration (and a supplemental one) from Joy Garrett, 23 the Acting Chief of Enterprise Guidance Services at NSA. See Garrett Decl. (dkt. 94-2); 24 Garrett Supp. Decl. (dkt. 101-1). Garrett’s declaration comprehensively walks through 25 NSA’s three searches pursuant to Byrne’s request. See Garrett Decl. ¶¶ 15–46 (search 26 terms such as “operation gauntlet” and “Laos AND radio communication AND ((POW) 27 OR prisoner of war)”). 1 inadequate. He contends that Garrett’s declaration lacks detail3, that NSA does not explain 2 why it narrowed the scope of the agency components it searched, and that NSA excluded 3 his requested search terms. Byrne MSJ at 8–16. Each argument is unavailing. 4 1. Declaration Detail 5 For starters, Garrett’s declaration generally sets forth “the search terms and the type 6 of search performed, and aver[s] that all files likely to contain responsive materials (if such 7 records exist) were searched.” Polk, 2016 WL 80564 at *5 (quoting Mobley v. CIA, 806 8 F.3d 568, 580-81 (D.C. Cir. 2015)). The declaration covers each of the search terms used 9 for text mining, the locations searched, and even examples of documents reviewed. See 10 Garrett Decl. ¶¶ 15–46. For example, NSA used the term “Laos AND radio 11 communication AND ((POW) OR prisoner of war),” which targets documents responsive 12 to Byrne’s request for radio communication records related to American prisoners of wars 13 in Laos. See id. ¶ 15; Compl. ¶ 11. Byrne, however, says more is required . He argues 14 that the declaration omits specific details, such as how the text mining searches were 15 conducted or how long the process took. See Byrne MSJ at 10 (describing Garrett’s 16 declaration as “boilerplate and entirely conclusory”). But affidavits “need not set forth 17 with meticulous documentation the details of an epic search for the requested records.” 18 Transgender L. Ctr. v. Immigr. & Customs Enf’t, 46 F.4th 771, 780 (9th Cir. 2022) 19 (citation modified). What Garrett describes is sufficient and entitled to a presumption of 20 good faith.4 21 2. Scope of Agency Components 22 Next, Byrne asserts that NSA does not adequately explain why it “unreasonably 23 24 3 Byrne also argues that Garrett “fails to declare that she has personal knowledge of the searches.” Byrne MSJ at 8–9. But courts have squarely held that “an agency’s declarations in FOIA cases are 25 exempt from [a] ‘personal knowledge requirement.’” Schoeffler v. United States Dep’t of Agric., 795 F. App’x 526, 527 (9th Cir. 2020) (quoting Garris v. FBI, 937 F.3d 1284, 1292–93 (9th Cir. 26 2019)). In his reply, Byrne appears to reframe his argument to assert that he meant Garrett lacked enough knowledge to provide a sufficiently detailed declaration. See Byrne Reply at 3. As the 27 Court will explain, Garrett’s declaration meets the standard for reasonableness. 4 Garrett’s supplemental declaration provides additional information to assuage Byrne’s concerns, 1 narrowed the scope of components it searched.” Byrne MSJ at 10. He agrees that NSA 2 searched the Records Management Division, the Center for Cryptologic History, one NSA 3 Operations Directorate office, the office that handles NSA engagement with the White 4 House, and the office that handles all formal interagency correspondence. Id. But he 5 argues that NSA’s stated reason for searching those particular components is conclusory 6 and that NSA must explain why it did not search other ones. Id. at 11. The Court 7 disagrees. 8 Garrett avers that those “specific offices were all selected to conduct searches based 9 on the historical age of the records sought by the FOIA request, the subject matter of the 10 request, and the request’s prongs asking for interagency communications.” Garrett Decl. ¶ 11 26. She also explains that the White House and interagency engagement offices “were the 12 most likely to have custody of any responsive documents” based on Byrne’s request for 13 communications between officials at the Pentagon, State Department, and the White 14 House. Id. ¶ 27. Such reasoning is hardly conclusory. 15 Moreover, Byrne cannot point to any legal authority that requires NSA to explain 16 why it did not search all other component offices. Cf. Valencia-Lucena v. U.S. Coast 17 Guard, 180 F.3d 321, 327 (D.C. Cir. 1999) (“It is well-settled that if an agency has reason 18 to know that certain places may contain responsive documents, it is obligated under FOIA 19 to search barring an undue burden.” (emphasis added)). Nevertheless, Byrne argues that 20 NSA should have searched its Vietnam Prisoner of War/Missing in Action Documents 21 database as, based on his review, it has potentially responsive documents. Byrne MSJ at 22 11. But Garrett explains that NSA did search that database because it was jointly 23 maintained by the Records Management Division, one of the components identified in her 24 original declaration. Garrett Supp. Decl. ¶ 5. NSA merely concluded that the records in 25 the database were “not responsive to the request and/or outside the scope of the request.” 26 Id. That lines up with Byrne identifying documents in the database that contained NSA’s 27 search terms but were not turned over as responsive. See Byrne Decl. (dkt. 98) ¶¶36–40. 3. Byrne’s Search Terms 1 Byrne also argues that NSA’s search was inadequate because it deliberately 2 excluded his requested search terms. Byrne MSJ at 12. But “[i]in general, government 3 agencies have discretion in crafting search terms designed to identify responsive records.” 4 Inter-Coop. Exch. v. United States Dep’t of Com., 36 F.4th 905, 911 (9th Cir. 2022) 5 (internal citation omitted). “For this reason, a FOIA requester cannot dictate the search 6 terms for his or her FOIA request.” Id. (citation modified). “Where the search terms are 7 reasonably calculated to lead to responsive documents, a court should neither 8 micromanage nor second guess the agency’s search.” First Amend. Coal., 2021 WL 9 4926977 at *6 (internal quotation omitted). In an effort to circumvent this restriction, 10 Byrne casts his argument as centering on NSA’s limitation of its search terms “to only the 11 specific terms that appear in [his] request.” Byrne MSJ at 12. 12 But NSA did not reject Byrne’s search terms out of strict adherence to his FOIA 13 request. It evaluated each requested term and merely concluded that they were not 14 “reasonably crafted to uncover additional responsive documents.” See Garrett Decl. ¶¶ 15 33–38. For example, Byrne requested that NSA use the term “Honorable Dragon,” an 16 operation Byrne argues was a part of Operation Gauntlet based on the book Shadow War. 17 See Byrne MSJ at 13. Garrett explains that NSA did not use this term because “the book 18 cited by [Byrne] contains no sources regarding the term ‘Honorable Dragon,’ does not 19 mention the term ‘Operation Gauntlet’ in connection with the term ‘Honorable Dragon,’ 20 and does not connect the term Honorable Dragon to NSA.” Garrett Decl. ¶ 33. She notes 21 that the term “Operation Gauntlet” did not even “appear in the book’s glossary or index.” 22 Id. Accordingly, given that NSA used search terms reasonably tailored to uncover 23 responsive documents and explained why it rejected Byrne’s requested terms, the Court 24 “will not micromanage or second guess” NSA’s search. See First Amend. Coal., 2021 WL 25 4926977 at *6 (rejecting challenge to search terms where the agency explained why 26 requested terms were denied). 27 B. Exemptions 1 NSA invoked two exemptions from information disclosure: Exemption 1 and 2 Exemption 3. See Garrett Decl. ¶ 47. 3 Section 552(b)(1) of FOIA establishes Exemption 1, which permits withholding 4 materials “in the interest of national defense or foreign policy” and “properly classified 5 pursuant to [an] Executive order.” 5 U.S.C. § 552(b)(1). Garrett states that the pertinent 6 Executive Order for Byrne’s request is E.O. 13526. Garrett Decl. ¶ 53. Section 1.4(c) of 7 the Executive Order permits classification for “intelligence activities (including covert 8 action), intelligence sources or methods, or cryptology” if unauthorized disclosure “could 9 reasonably be expected to cause identifiable or describable damage to the national 10 security.” Classified National Security Information, Exec. Order No. 13,526, § 1.4(c), 75 11 Fed. Reg. 707, 707 (Dec. 29, 2009). Garrett asserts that the withheld information 12 “includes material revealing specific intelligence targets, [signals intelligence] access to 13 those targets, and other information that could potentially reveal NSA’s intelligence 14 capabilities, sources, and/or methods.” Garrett Decl. ¶ 57. 15 NSA argues that Exemption 3 also covers the withheld information. NSA Reply at 16 11. Exemption 3 is codified in Section 552(b)(3) of FOIA. Under that provision, an 17 agency may withhold information if there is a separate statute that specifically exempts 18 matters from disclosure. 5 U.S.C. § 552(b)(3). The additional statute must either require 19 withholding without discretion or establish criteria or refer to types of matters to be 20 withheld. Id. Garrett points to three statutes that NSA relied on for exemption: Section 6 21 of the National Security Act of 1959, 18 U.S.C. § 798, and the National Security Act of 22 1947 (as amended by the Intelligence Reform and Terrorism Prevention Act of 2004). 23 Garrett Decl. ¶ 68. According to NSA, the statutes protect strengths and weaknesses of 24 NSA’s signal intelligence efforts. Id. 25 The Court has reviewed the withheld material in camera and concludes that NSA’s 26 withholding was appropriate under the exemptions. 27 For the foregoing reasons, NSA’s motion for summary judgment is GRANTED 1 || and Byrne’s motion is DENIED. This case is dismissed with prejudice with a separate 2 || judgment to follow. 3 IT IS SO ORDERED. 4 Dated: June 4, 2026 Lc " CHARLES R. BREYER 5 United States District Judge 6 7 8 9 10 1] 12
13 14
16 19 20 21 22 23 24 25 26 27 28