Project for Privacy and Surveillance Accountability, Inc. v. National Security Agency

• Court: District Court, District of Columbia
• Decided: January 5, 2024
• Docket: Civil Action No. 2022-1812
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROJECT FOR PRIVACY : AND SURVEILLANCE : ACCOUNTABILITY, INC., : : Plaintiff, : Civil Action No.: 22-1812 (RC) : v. : Re Document No.: 26, 29 : NATIONAL SECURITY AGENCY, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiff

Project for Privacy and Surveillance Accountability, Inc. (“PPSA”) and four executive agencies:

the National Security Agency (“NSA”); the Central Intelligence Agency (“CIA”); the Office of

the Director of National Intelligence (“ODNI”); and the Department of Justice (“DOJ”)

(collectively, “Defendants” or “the Agencies”). At a high level of generality, PPSA sought

records from Defendants relating to the intelligence community’s acquisition or use of

commercially available information regarding specific current and former members of Congress.

Rather than conduct a search for responsive records, Defendants responded to PPSA’s FOIA

request by issuing so-called Glomar responses—that is, statements in which they refused to

confirm or deny the existence of the records sought. In support of their Glomar responses,

Defendants cited FOIA Exemption 1 and, to varying extents, Exemptions 3, 6, 7(C), and 7(E).

For the reasons described below, the Court finds that Defendants’ Glomar responses are largely justified and therefore affirms the Agencies’ refusal to acknowledge the existence of many of the

records that would (if they exist) fall within the scope of PPSA’s FOIA request. However, the

Court also finds that PPSA’s FOIA request encompasses at least some documents whose

existence (or lack thereof) would not be shielded by the various exemptions cited by Defendants.

Defendants must conduct a search for those documents. The Court, therefore, grants in part and

denies in part Defendants’ motion for summary judgment and denies PPSA’s cross-motion for

summary judgment.

II. BACKGROUND

On July 26, 2021, PPSA sent materially identical FOIA requests to the NSA, Compl., Ex.

A (“NSA FOIA Request”), ECF No. 1-1; the CIA, id., Ex. E, ECF No. 1-5; the DOJ, id., Ex. H,

ECF No. 1-8; and the ODNI, id., Ex. P, ECF No. 1-16. PPSA’s letter to the DOJ stated that the

request for information was specifically targeted at the Federal Bureau of Investigation (“FBI”),

the National Security Division (“NSD”) and the Office of Information Policy (“OIP”). Id., Ex. H

at 5, ECF No. 1-8. Each of PPSA’s requests sought:

All documents, reports, memoranda, or communications regarding the obtaining, by any element of the intelligence community from a third party in exchange for anything of value, of any covered customer or subscriber record or any illegitimately obtained information regarding [145 specifically-named current and former members of Congress].

E.g., NSA FOIA Request at 2–5. Put another way, PPSA sought all documents relating to the

intelligence community’s “acquisition and use of [commercially available information]”

regarding the named individuals. See Pl.’s Mem. P&A Supp. Cross-Mot. Summ. J. and Opp’n

Defs.’ Mot. Summ. J. (“Pl.’s Cross-Mot.”) at 2, ECF No. 29-1. The request clarified that

“responsive materials” included only those records that were “either created, altered, sent, or

received between January 1, 2008 and July 26, 2021.” E.g., NSA FOIA Request at 5.

2 Defendants responded to PPSA’s FOIA letters by issuing blanket Glomar responses

refusing “to confirm or deny the existence of intelligence records on any and all [of the named]

individuals.” See, e.g., Compl., Ex. B, ECF No. 1-2. PPSA appealed the Agencies’ blanket

denials, see, e.g., id., Ex. C, ECF No. 1-3, but to no avail, see, e.g., id., Ex. D, ECF No. 1-4

(NSA letter denying PPSA’s administrative appeal). PPSA then brought suit in this Court to

compel the Agencies to conduct a search for responsive records. See generally id. Defendants

moved for summary judgment on the ground that their respective Glomar responses were

adequately justified under FOIA. See generally Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No.

26. PPSA cross-moved for summary judgment, see Pl.’s Cross-Mot., and the motions are now

ripe for review, see Defs.’ Mem. P&A Supp. Mot. Summ. J. and Opp’n Pl.’s Cross-Mot. Summ.

J. (“Defs.’ Opp’n”), ECF No. 31; Pl.’s Reply Supp. Cross-Mot. Summ. J. (“Pl.’s Reply”), ECF

No. 36.

III. LEGAL STANDARD

The Freedom of Information Act is meant “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) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “directs that

‘each agency, upon any request for records . . . shall make the records promptly available to any

person’ unless the requested records fall within one of the statute’s nine exemptions.” Loving v.

Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent

with the Act’s goal of broad disclosure,” those exemptions should be “given a narrow compass.”

U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of

establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Wash. v. U.S.

Dep’t of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014).

3 Because FOIA cases do not ordinarily involve disputed facts, they “are typically and

appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12

(D.D.C. 2009). Summary judgment is warranted “if the movant shows 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). In assessing whether the movant has met that burden, a court “must view the

evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in

his favor, and eschew making credibility determinations or weighing the evidence.”

Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). “This burden does not shift even

when the requester files a cross-motion for summary judgment because ‘the Government

ultimately has the onus of proving that the documents are exempt from disclosure.’” Hardy v.

ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (cleaned up) (quoting Pub. Citizen Health

Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)). Even if a FOIA exemption

applies, an agency cannot withhold information unless it also “reasonably foresees that

disclosure would harm an interest protected by” the exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I);

see Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021) (explaining

the FOIA Improvement Act of 2016’s “foreseeable harm” requirement).

In a typical FOIA case, “[a]n agency . . . must search for any documents responsive to the

request, and must ‘disclose all reasonably segregable, nonexempt portions of the requested

record(s).’” People for the Ethical Treatment of Animals v. Nat’l Institutes of Health, Dep’t of

Health & Hum. Servs. (“PETA”), 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Assassination

Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003)). There are, however, certain

cases in which “merely acknowledging the existence of responsive records would itself ‘cause

harm cognizable under [a] FOIA exception.’” Id. (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C.

4 Cir. 2007)). In such cases, an agency may issue a Glomar response, “refus[ing] to confirm or

deny the existence or nonexistence of responsive records.” 1 Elec. Priv. Info. Ctr. v. NSA

(“EPIC”), 678 F.3d 926, 931 (D.C. Cir. 2012). A Glomar response is available to an agency

only “if the fact of the existence or nonexistence of agency records falls within a FOIA

exemption.” PETA, 745 F.3d at 540 (quoting Wolf, 473 F.3d at 374); Competitive Enter. Inst. v.

Nat’l Sec. Agency, 78 F. Supp. 3d 45, 53 (D.D.C. 2015) (“[T]he Government must show that the

mere fact of whether it has (or does not have) relevant records is protected from disclosure under

an exemption.”).

“In considering a Glomar response, courts apply the ‘general exemption review standards

established in non-Glomar cases.’” Knight First Amend. Inst. at Columbia Univ. v. CIA, 11

F.4th 810, 813 (D.C. Cir. 2021) (quoting Wolf, 473 F.3d at 374). “An agency thus bears the

burden to sustain a Glomar response.” Id. (citing 5 U.S.C. § 552(a)(4)(B)). One way in which

an agency may successfully carry its burden is by submitting “affidavits explaining the basis for

the response.” PETA, 745 F.3d at 540. The affidavits must be “reasonably specific” and they

cannot be “called into question by contradictory evidence.” Schaerr v. U.S. Dep’t of Just.

(“Schaerr II”), 69 F.4th 924, 928 (D.C. Cir. 2023); see also SafeCard Servs., Inc. v. S.E.C., 926

F.2d 1197, 1200 (D.C. Cir. 1991) (explaining that the affidavits must be “relatively detailed[,]

non-conclusory, and . . . submitted in good faith” (quoting Ground Saucer Watch, Inc. v. CIA,

692 F.2d 770, 771 (D.C. Cir. 1981))). Such affidavits or declarations are “accorded a

presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the

1 The term “Glomar response” derives its name from a FOIA case in which the CIA “refus[ed] to confirm or deny the existence of records about ‘the Hughes Glomar Explorer, a ship used in a classified CIA project.’” PETA, 745 F.3d at 540 (cleaned up).

5 existence and discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting

Ground Saucer Watch, 692 F.2d at 771).

This is especially so in the national security context. In that context, “the agency

possesses necessary expertise to assess the risk of disclosure, and judges lack the expertise

necessary to second-guess agency opinions.” Schaerr v. U.S. Dep’t of Just. (“Schaerr I”), 435 F.

Supp. 3d 99, 108 (D.D.C. 2020) (cleaned up), aff’d, 69 F.4th 924 (D.C. Cir. 2023). Thus, “when

a Glomar response touches upon issues of national security—‘a uniquely executive purview’—

courts must give agency decisions substantial deference.” Competitive Enter. Inst., 78 F. Supp.

3d at 53 (quoting EPIC, 678 F.3d at 931). Courts, therefore, “consistently defer[] to executive

affidavits predicting harm to the national security, and have found it unwise to undertake

searching judicial review.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Just., 331 F.3d 918, 927

(D.C. Cir. 2003). In the end, courts must sustain an agency’s Glomar response in the national

security context so long as the agency’s explanation appears “logical” and “plausible.” Am. C.L.

Union v. U.S. Dep’t of Def. (“ACLU”), 628 F.3d 612, 624 (D.C. Cir. 2011) (in the national

security context, “the government’s burden is a light one”); see Schaerr II, 69 F.4th at 929.

IV. ANALYSIS

As relevant here, Defendants claim that their Glomar responses are justified by FOIA

Exemptions 1 and 3. 2 PPSA objects that Defendants’ Glomar responses are premature. It argues

that, before issuing Glomar responses, Defendants must conduct a search for responsive records.

According to PPSA, it is only after Defendants conduct such a search that they may decide

whether to disavow the existence or nonexistence of the requested information.

2 The FBI and the OIP also invoke Exemptions 6, 7(C), and 7(E). See Defs.’ Mot. at 18– 23 & n.2.

6 The Court’s analysis proceeds in two steps. First, the Court will address PPSA’s

argument that Defendants’ Glomar responses are premature. Because the Court concludes that

PPSA’s view of the law on that front is incorrect, the Court will then analyze whether

Defendants’ Glomar responses are adequately justified under FOIA Exemptions 1 and 3.

A. Whether Defendants May Issue Glomar Responses Without Conducting Searches

PPSA first contends that, before issuing a Glomar response, each Defendant should be

required to conduct a search for responsive records. See Pl.’s Cross-Mot. at 4–7. The premise of

PPSA’s argument is that requiring Defendants to execute an internal search for documents would

not require Defendants to disclose whether such records exist. See id. at 5 (“Defendants have not

provided any explanation to overcome the obvious conclusion that conducting an internal search

for records does not itself constitute a disclosure that protected records do or do not exist.”). In

PPSA’s view, Defendants could conduct a search “within the secrecy of their own siloes” and

then, once that search is completed, issue a response refusing to confirm or deny the existence of

such records. Id. at 6; see id. at 6–7 (“Because all of Defendants’ alleged harms are premised on

the disclosure of protected information, and because the initial step of conducting an intra-

agency search makes no such disclosure, their arguments are neither logical nor plausible

justifications for shirking their duty to perform an internal search.” (internal citations omitted)).

PPSA contends that this fact alone provides sufficient ground on which to reject Defendants’

respective reliance on Exemptions 1, 3, 6, 7(C), and 7(E) to justify their Glomar responses. See

id. at 9–10 (asserting this argument in the context of Exemption 1); id. at 18–19 (same in the

context of Exemption 3); id. at 22 (Exemptions 6 and 7(C)); id. at 25 (Exemption 7(E)).

Whatever the theoretical merits of PPSA’s position, it is a stance that is directly contrary

to existing law. D.C. Circuit precedent on the point is explicit: “an agency need not search its

7 records before invoking Glomar.” Schaerr II, 69 F.4th at 928. Time and again, the Circuit has

held that, “to the extent the circumstances justify a Glomar response, the agency need not

conduct any search for responsive documents or perform any analysis to identify segregable

portions of such documents.” PETA, 745 F.3d at 540; see also Schaerr II, 69 F.4th at 929 (“An

agency need not search for records when simply recognizing the existence or nonexistence of

responsive records is protected by a FOIA exemption.”); EPIC, 678 F.3d at 934 (explaining that

an agency need not “conduct a search” before issuing a Glomar response); see also Project for

Priv. & Surveillance Accountability, Inc. v. U.S. Dep’t of Just. (“PPSA I”), No. 20-cv-3657, 2022

WL 4365745, at *6 (D.D.C. Sept. 19, 2022) (holding that agencies did not need to conduct

search “before issuing a Glomar response”). That is because, when an agency invokes Glomar,

the agency effectively “narrow[s] the FOIA issue to the existence of records vel non.” Schaerr

II, 69 F.4th at 928 (quoting Wolf, 473 F.3d at 374 n.4). Once the agency has so narrowed the

issue, the only “‘relevant documents for the court to examine [become] the affidavits which

explain the [a]gency’s refusal’ to confirm or deny the existence of responsive records.” Id. at

929 (quoting Wolf, 473 F.3d at 374 n.4). That being so, it “would be a meaningless—not to

mention costly—exercise” to require the agency to conduct a search for records only to have the

agency later disclaim the existence or nonexistence of those records. PPSA I, 2022 WL

4365745, at *6 (quoting EPIC, 678 F.3d at 934).

Given the above, Defendants were not required to conduct a search before issuing

Glomar responses to PPSA’s FOIA request. See Schaerr II, 69 F.4th at 928. But even though

Defendants acted properly in issuing Glomar responses, they still must show that their Glomar

responses were justified. See PETA, 745 F.3d at 540. That is, if Defendants are to be granted

summary judgment, they must “make a threshold showing that [PPSA’s] FOIA request seeks

8 records that fall within” Exemptions 1, 3, 6, 7(C), or 7(E). PPSA I, 2022 WL 4365745, at *6

(internal alterations omitted) (quoting Bartko v. U.S. Dep’t of Just., 898 F.3d 51, 64 (D.C. Cir.

2018)). They must also “explain[] with reasonable specificity” why those exemptions shield

them from acknowledging the very existence of the information sought by PPSA. See Schaerr

II, 69 F.4th at 929. Those are the issues to which the Court will next turn.

B. Whether Defendants’ Glomar Responses Are Justified

Before analyzing whether Defendants’ Glomar responses are justified on their merits, it

is necessary to distinguish between the types of records that may be responsive to PPSA’s FOIA

request. PPSA’s FOIA request is broad: it seeks “[a]ll documents, reports, memoranda, or

communications regarding the obtaining, by . . . the intelligence community [of commercially

available information] regarding” specific current and former members of Congress. See, e.g.,

NSA FOIA Request at 2–5. As will be explained in more detail below, PPSA’s request

encompasses both “operational documents” and “policy documents.” See Pl.’s Cross-Mot. at 10

(using these descriptions); see also Project for Priv. & Surveillance Accountability, Inc. v. U.S.

Dep’t of Just. (“PPSA II”), 633 F. Supp. 3d 108, 115 (D.D.C. 2022) (establishing this dichotomy

to describe the scope of a similar FOIA request). The first category includes records that reveal

information relating to the intelligence community’s contemplated or actual collection, purchase,

use, or analysis of commercially available information regarding the identified members of

Congress. The second category—the so-called “policy documents”—include records that

discuss the intelligence community’s potential collection of commercially available information

on the listed individuals as a matter of legislative interest, policy, or oversight. See Pl.’s Reply at

5–7.

9 In issuing their Glomar responses, Defendants essentially asserted that FOIA Exemptions

1 and 3 prevented them from acknowledging the existence of both categories of records. The

Court finds that Defendants are correct insofar as they cite those exemptions as justification for

refusing to acknowledge the existence of “operational documents.” Defendants have not,

however, plausibly explained why Exemptions 1 and 3 prohibit them from acknowledging the

existence of “policy documents.” Accordingly, the Court finds that Defendants must conduct a

search for “policy documents” in their possession. After conducting such a search, Defendants

will have an opportunity to assert a new Glomar response to the extent such a response is

warranted, and to withhold any information that is protected by a relevant FOIA exemption.

1. FOIA Exemptions 1 and 3 Justify Defendants’ Glomar Responses Regarding

“Operational Documents”

a. Exemption 1

Defendants principally rely on FOIA Exemption 1 to support their Glomar responses.

Exemption 1 “allows the government to withhold matters that are ‘specifically authorized under

criteria established by an [e]xecutive order to be kept secret in the interest of national defense or

foreign policy’ and ‘are in fact properly classified pursuant to such [e]xecutive order.’” Schaerr

II, 69 F.4th at 929 (quoting 5 U.S.C. § 552(b)(1)). Because “national security is primarily the

province of the Executive,” the D.C. Circuit has instructed that courts should “decline to

micromanage agency determinations that [properly classified] information should remain secret.”

Id.; see also Ctr. for Nat. Sec. Stud., 331 F.3d at 927. That being so, “[w]hen reviewing agency

affidavits invoking Exemption [1], [courts] simply consider whether the agency has plausibly

asserted that the matters are in fact properly classified pursuant to an executive order.” Schaerr

II, 69 F.4th at 929; see also Competitive Enter. Inst. v. Dep’t of Treasury, 319 F. Supp. 3d 410,

10 417 (D.D.C. 2018) (“When determining whether information was properly withheld under

Exemption 1, the ‘only question for the Court is whether the disputed [information] is properly

classified under the applicable Executive Order.’” (internal alterations omitted) (quoting Ctr. for

Int’l Envtl. Law v. Office of Trade Representative, 718 F.3d 899, 902–04 (D.C. Cir. 2013))).

Here, Defendants assert that the existence or nonexistence of the information PPSA seeks

is classified pursuant to Executive Order 13,526 (“the Order”). See Classified National Security

Information, Exec. Order (“E.O.”) No. 13,526 § 1.1(a)(4), 75 Fed. Reg. 707, 707 (Dec. 29,

2009). The Order “sets forth both substantive and procedural criteria for classification.” Jud.

Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013). As relevant here, the

Order provides that information may be classified only if: (1) an original classification authority

classifies the information; (2) the information is under the control of the United States

government; (3) the information pertains to one or more of the categories of information listed in

section 1.4 of the Order; and (4) the classification authority determines that the unauthorized

disclosure of the information reasonably could be expected to result in damage to national

security, and the authority is able to identify or describe the damage. E.O. 13,526 § 1.1; see

Competitive Enter. Inst., 319 F. Supp. 3d at 417. 3

Defendants have plausibly explained that each of those four conditions is satisfied here.

With respect to the first condition, each Agency submitted an affidavit from an individual

possessing original classification authority stating that the information is properly classified. See

Decl. of Linda M. Kiyosaki (“NSA Decl.”) at ¶¶ 2, 17, 21, ECF No. 26-1; Decl. of Vanna Blaine

3 The Order further states that an agency “may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified.” E.O. 13,526 § 3.6(a); see Gov’t Accountability Project v. CIA, 548 F. Supp. 3d 140, 147 n.3 (D.D.C. 2021).

11 (“CIA Decl.”) at ¶¶ 2, 16, ECF No. 26-2; Decl. of Gregory M. Koch (“ODNI Decl.”) at ¶¶ 3, 19,

ECF No. 26-3; Decl. of Michael G. Seidel (“FBI Decl.”) at ¶¶ 2, 24, ECF No. 26-4. 4 As for the

second condition, PPSA does not contest that the information is under the control of the United

States government. See Schaerr I, 435 F. Supp. 3d at 111.

That leads to the third condition, which requires that the information “pertain to at least

one of eight subject-matter classification categories” described in section 1.4 of the Order. Jud.

Watch, 715 F.3d at 941. One of the categories described in that section “includes information

pertaining to intelligence activities, sources, or methods.” Knight First Amend. Inst., 11 F.4th at

818 (citing E.O. 13,526 § 1.4). All of the affiants state that the information at issue pertains to

intelligence activities, sources, or methods. For example, the NSA’s declarant asserts that

disclosing whether the information exists would reveal details relating to the “who, what, when,

and how” of the agency’s “collect[ion], process[ing], analy[sis], produc[tion], and

disseminat[ion] [of] signals intelligence” as well as that agency’s “technical capabilities, sources,

and methods.” NSA Decl. at ¶¶ 20, 22. Declarants for the CIA, the ODNI, and the FBI all make

similar attestations. See CIA Decl. at ¶¶ 16–20; ODNI Decl. at ¶¶ 13–14, 19–20; FBI Decl. at ¶¶

27, 29–30, 32.

Finally, Defendants’ declarants describe in detail the various ways in which disclosure of

the information at issue could be expected to result in damage to national security. For instance,

multiple affiants state that acknowledging or disavowing the existence of responsive records

would reveal information about whether the Agencies gathered information on the individuals

identified in PPSA’s request, and, in doing so, would disclose sensitive information regarding the

4 Individuals submitting affidavits on behalf of the OIP and the NSD deferred to the declaration submitted by the FBI. See Decl. of Jonathan M. Breyan (“OIP Decl.”) at ¶¶ 13–14, ECF No. 26-5; Decl. of Kevin G. Tiernan (“NSD Decl.”) at ¶ 12, ECF No. 26-6.

12 Agencies’ intelligence-gathering priorities and activities. See NSA Decl. at ¶ 21; CIA Decl. at ¶¶

18, 21; FBI Decl. at ¶ 32. Relatedly, the declarants state that such disclosure could reveal the

Agencies’ interest in a particular individual, while simultaneously alerting that individual of the

types of “intelligence sources or methods being employed . . . to collect information on them.”

ODNI Decl. at ¶ 20; see CIA Decl. at ¶ 18. And more generally speaking, the affiants describe

how disclosure of the information could harm national security by revealing information

regarding the Agencies’ technical capabilities and limitations—information that would, in turn,

make it easier for adversaries or individuals to avoid data collection efforts in the future. See

NSA Decl. at ¶¶ 21–22; CIA Decl. at ¶ 17; ODNI Decl. at ¶ 20. In the same vein, the declarants

express concern that disclosure could also reveal information about how the Agencies do—or do

not—collect information, thereby aiding adversaries in their measures to protect information

from collection. 5 See ODNI Decl. at ¶ 20; CIA Decl. at ¶¶ 19–21.

As noted above, the Court must “accord[] substantial weight” to Defendants’ “affidavit[s]

concerning the details of the classified status” of the information at issue. Schaerr I, 435 F.

Supp. 3d at 113 (quoting Ctr. for Nat. Sec. Stud., 331 F.3d at 927). Thus, after thoroughly

examining the declarations submitted by the Agencies, the Court finds that the information is

classified pursuant to Executive Order 13,526 and properly falls within FOIA Exemption 1. The

Court further finds that Defendants have offered a logical and plausible explanation for why the

“unauthorized disclosure [of the information] would damage national security and compromise

intelligence sources and methods,” Schaerr II, 69 F.4th at 930, at least insofar as “operational

documents” are concerned. As a result, the Court concludes that Defendants’ Glomar responses

5 All of the agencies also certify that the withholding of the information sought by PPSA is not for unlawful purposes but rather to protect national security. NSA Decl. at ¶ 26; CIA Decl. at ¶ 22; ODNI Decl. at ¶ 19; FBI Decl. at ¶ 33.

13 properly invoke Exemption 1 as a basis on which to neither confirm nor deny the existence of

“operational documents.”

PPSA resists this conclusion. First, PPSA argues that Defendants fail to show that the

information was properly classified pursuant to various procedural requirements established by

Executive Order 13,526. See Pl.’s Cross-Mot. at 14–18. More specifically, PPSA argues that

Defendants have not shown that the withheld information (1) “was accompanied by

declassification instructions” as required by sections 1.5 and 1.6(a)(4) of the Order; (2)

“complied with the special procedures [established by section 1.7(d) of the Order] applicable to

classifying information after that information has been requested through FOIA; or (3)

“complied with any of the other transparency procedures required under the [O]rder.” Id. at 14.

As PPSA itself concedes, the Court has rejected this argument before. See PPSA II, 633

F. Supp. 3d at 118–19. In PPSA II, the Court explained that section 1.1 of the Order “provides

four threshold requirements for proper classification.” Id. at 118. When issuing a Glomar

response based on FOIA Exemption 1 and the Order, an agency need only show that those

threshold requirements have been met. See id.; see also Mobley v. CIA, 924 F. Supp. 2d 24, 50

(D.D.C. 2013) (collecting cases “indicat[ing] that an agency need only satisfy the requirements

of Executive Order § 1.1(a) to classify information properly for purposes of FOIA Exemption

1”). In other words, an agency need not additionally establish that a Glomar fact—that is, “the

fact of the existence or nonexistence of responsive records,” Mobley, 924 F. Supp. 2d. at 47—

“meets [the Order’s] other procedur[al] [requirements],” such as those found in sections 1.5 or

1.6, PPSA II, 633 F. Supp. 3d at 118. To require otherwise would force “agencies to create a

record in response to a FOIA request.” PPSA II, 633 F. Supp. 3d at 118 (quoting Mobley, 924 F.

Supp. 2d. at 48–49). And that, of course, “would be contrary to longstanding FOIA law.’”

14 Mobley, 924 F. Supp. 2d. at 49; see Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S.

136, 152 (1980) (“The [FOIA] does not obligate agencies to create or retain documents; it only

obligates them to provide access to those which it in fact has created and retained.”). The Court

thus concluded, like others before it, that agencies do not need to “separately show that [a]

Glomar fact complies with” any of the procedural requirements outlined in the Order except for

those described in section 1.1. PPSA II, 633 F. Supp. 3d at 119; see also PPSA I, 2022 WL

4365745, at *7–8; Nat’l Sec. Couns. v. CIA, No. 12-cv-284, 2016 WL 6684182, at *19 (D.D.C.

Nov. 14, 2016); Mobley, 924 F. Supp. 2d. at 48–50. The Court stands by that conclusion here.

PPSA separately argues that Defendants may not plausibly invoke Exemption 1 because

various arms of the intelligence community (including some of the Agencies named in this case)

have publicly acknowledged that they obtain commercially available information from third-

party vendors. See Pl.’s Cross-Mot. at 11. In that vein, PPSA contends that the “methods of

obtaining and analyzing [commercially available information] are already publicly available”

and thus the “mere acknowledgement [of responsive records in this case] could not reasonably

threaten national security.” Id. at 10–11.

PPSA’s argument misses the mark. Most fundamentally, PPSA does not grapple with

Defendants’ contention that acknowledging the existence of the requested information would

reveal U.S. intelligence agencies’ interest in—or collection of information on—particular

individuals. The evidence cited by PPSA tends only to show that Defendants have

acknowledged that the intelligence community generally collects and uses commercially

available information. See id. PPSA cites no evidence tending to show that any intelligence

agencies have admitted to obtaining commercially available information on the specific

individuals named in PPSA’s FOIA request. Lacking such evidence, PPSA fails to cast

15 sufficient doubt on the Agencies’ explanation of the harm that could befall national security were

Defendants to acknowledge the existence of the information at issue. Cf. PPSA I, 2022 WL

4365745, at *10 (finding plaintiff’s objection to agencies’ invocation of Exemption 1 to be

without merit where agencies had previously released general information relating to the subject

of plaintiff’s FOIA request but had not released information relating to the specific individuals

mentioned in the request).

b. Exemption 3

All Defendants except NSD also invoke FOIA Exemption 3 as a basis for their Glomar

responses. FOIA Exemption 3 permits an agency to withhold records that are “‘specifically

exempted from disclosure by statute’ if that statute ‘establishes particular criteria for withholding

or refers to particular types of matters to be withheld.’” Schaerr II, 69 F.4th at 930 (quoting 5

U.S.C. § 552(b)(3)). To supportably invoke Exemption 3, an agency must show that “the statute

claimed is one of exemption” and that “the withheld material falls within the statute.” Larson v.

Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009).

The Agencies that invoke Exemption 3 first point to the National Security Act of 1947,

50 U.S.C. § 3024(i), to justify their Glomar responses. See Defs.’ Mot. at 15–17. As relevant

here, the National Security Act requires the Director of National Intelligence to “protect

intelligence sources and methods.” Schaerr II, 69 F.4th at 930 (quoting 50 U.S.C. § 3024(i)).

The statute also “prohibits the unauthorized disclosure of such sources and methods.” Id. The

D.C. Circuit has explained “that the mere acknowledgment of intelligence sources and methods

may implicate the protections of the Act.” Id.

PPSA does not dispute—nor could it—that the National Security Act qualifies as “a valid

Exemption 3 [withholding] statute.” DiBacco v. U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015);

16 see also CIA v. Sims, 471 U.S. 159, 167 (1985). And as explained above, the information sought

by PPSA plainly falls within the statute. Requiring Defendants to acknowledge or deny the

existence of the requested information would be to require them to reveal potentially sensitive

information regarding intelligence sources and methods. Because “[d]ivulging such information

is ‘specifically exempted’ under the National Security Act,” Defendants have logically and

plausibly explained their reliance on Exemption 3. Schaerr II, 69 F.4th at 930; see also PPSA II,

633 F. Supp. 3d at 120. 6 That being so, the Court finds that—with the exception of the NSD—

Defendants’ Glomar responses with regard to “operational documents” are independently

justified by that exemption. 7

6 The NSA also cites the National Security Agency Act of 1959, 50 U.S.C. § 3605, and a criminal statute, 18 U.S.C. § 798, to justify its reliance on Exemption 3. See Defs’ Mot. at 17– 18. In relevant part, the National Security Agency Act provides that “[n]othing in this chapter or any other law . . . shall be construed to require the disclosure of the organization or any function of the [NSA], or any information with respect to the activities thereof.” 50 U.S.C. § 3605(a); see Sherven v. Nat’l Sec. Agency, No. 22-cv-03163, 2023 WL 6291599, at *2 (D.D.C. Aug. 2, 2023). And 18 U.S.C. § 798 “prohibits a person from knowingly and willfully disclosing ‘any classified information concerning the communication intelligence activities of the United States or obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes.’” PPSA I, 2022 WL 4365745, at *11 n.9 (cleaned up) (quoting 18 U.S.C. § 798). The Court need not decide whether these statutes also support the NSA’s invocation of Exemption 3 because, as discussed, the National Security Act is sufficient in and of itself to justify the NSA’s Glomar response. See id. (declining to decide whether these statutes justified the NSA’s Exemption 3 withholdings under like circumstances). 7 To the extent the Court concludes that the FBI’s and the OIP’s Glomar responses are justified under Exemptions 1 or 3, the Court need not and does not address whether those agencies also properly invoked Exemptions 6, 7(C), or 7(E). See PPSA II, 633 F. Supp. 3d at 120 n.6 (“Because the FBI’s ‘operational documents’ are entitled to a Glomar response under Exemptions 1 and 3, the Court will not separately analyze whether the FBI is also entitled to invoke Exemptions 6, 7(C), and 7(E).”); see also Larson, 565 F.3d at 862–63 (“[A]gencies may invoke the exemptions independently and courts may uphold agency action under one exemption without considering the applicability of the other.”).

17 2. Defendants Must Conduct a Search for “Policy Documents”

In its cross-motion for summary judgment, PPSA contends that even if Defendants’

Glomar responses relating to “operational documents” are justified, Defendants’ Glomar

responses cannot be sustained insofar as “policy documents” are concerned. See Pl.’s Cross-

Mot. at 10, 21, 27; see also Pl.’s Reply at 5–8, 12. In support, PPSA relies heavily upon the D.C.

Circuit’s decision in PETA, 745 F.3d 535, and this Court’s decision in PPSA II, 633 F. Supp. 3d

108. Both decisions lend a great deal of credence to PPSA’s contention.

First, take PETA. There, the National Institute of Health (“NIH”) issued a blanket

Glomar response under Exemption 7(C) after receiving the plaintiff’s FOIA request for “all

official investigative reports, preliminary notes, testimonies, memos, meeting minutes, phone

conversations, emails and other materials related to all [NIH] investigations into complaints filed

in 2005–present regarding [three specifically named NIH grant recipients].” 745 F.3d at 539

(second alteration in original). Based on the named individuals’ strong privacy interests, the

D.C. Circuit approved the agency’s Glomar response with respect to any information that would

associate the three specifically named individuals with an investigation. Id. at 544. However,

the panel separately found that, liberally construed, the plaintiff’s FOIA request encompassed a

category of responsive documents that would not “necessarily reveal an investigation of the three

researchers,” such as “documents showing that NIH responded to complaints about the three

researchers by conducting an investigation that did not target the researchers themselves.” Id.

That being so, the Circuit concluded that the agency’s “blanket Glomar response” could not be

sustained. Id. at 545. It therefore ordered the agency to conduct a search for documents falling

within the narrow category of records that would not show whether an investigation targeted a

particular researcher. Id.

18 Relying in large measure on PETA, this Court reached a similar result in PPSA II. In that

case, the FBI issued a blanket Glomar response under FOIA Exemptions 1, 3, 6, 7(C), and 7(E)

in response to the plaintiff’s FOIA request for “[a]ll correspondence between individual Senators

or Congressman and any agency, or between an agency and Congressional Leadership and/or

either or both Congressional intelligence committees, concerning the unmasking of Congressmen

or Senators, including but not limited to correspondence from or to [specific Congressman or

Senators].” 8 633 F. Supp. 3d at 113. This request, the Court explained, could be conceptualized

as a request for two different categories of documents: “operational documents” on the one hand

and “policy documents” on the other. Id. at 117. The first category included documents that

would “reveal the FBI’s operations, any fruits of such operations, and/or any resulting

congressional unmasking.” Id. The Court found that the FBI had persuasively explained why

the mere existence of these documents would be covered by Exemptions 1 and 3, and thus held

that the FBI did not need to conduct a search for those records. Id. at 117–20.

The Court reached the opposite result with respect to “policy documents.” In so holding,

the Court first explained that “policy documents” could include records “discuss[ing]

congressional unmasking as a matter of legislative interest, policy, or oversight.” Id. at 117. As

an example of the type of document that might fall within this definition, the Court hypothesized

a letter from a congresswoman to the FBI “solicit[ing] the FBI’s views on unmasking policies in

light of media reports on the topic.” Id. at 121. Such a letter, the Court explained, “would not

necessarily reveal sensitive information about the FBI’s intelligence activities, sources, or

methods.” Id. at 122. Instead, its “existence would show Congress’s interest in this field

8 The term “unmasking” refers to “a formal request to reveal the identity of an anonymized person.” Am. Ctr. for L. & Just. v. U.S. Nat’l Sec. Agency, 474 F. Supp. 3d 109, 117 (D.D.C. 2020).

19 [without] necessarily uncover[ing] anything about the FBI’s activities or capabilities.” Id. That

being so, the Court concluded that the FBI could not rely wholly on its blanket Glomar response

and instead had an obligation to “conduct a search for ‘policy documents.’” Id. The FBI’s

subsequent search revealed 220 pages of responsive records, 100 of which the FBI produced

either in whole or in part. See Third Decl. of Michael G. Seidel at ¶¶ 4, 6–7, Project for Priv. &

Surveillance Accountability, Inc. v. U.S. Dep’t of Just., 21-cv-2362 (D.D.C. Oct. 31, 2023), ECF

No. 31-3.

PETA and PPSA II make clear that “an agency may issue a blanket Glomar response . . .

only when ‘the circumstances justify a Glomar response’ for all categories of responsive

records.” PPSA II, 633 F. Supp. 3d at 122 (emphasis added) (quoting PETA, 745 F.3d at 541).

And in light of the foregoing discussion, it is equally clear that, here, PPSA’s FOIA request

encompasses a category of records that are not covered by FOIA Exemptions 1 or 3.

Recall that PPSA seeks “[a]ll documents, reports, memoranda, or communications

regarding the obtaining, by . . . the intelligence community [of commercially available

information] regarding” specific current and former members of Congress. E.g., NSA FOIA

Request at 2–5 (emphasis added). PPSA correctly notes that the term “regarding” gives the

request a broad scope. Cf. Nation Mag., Washington Bureau v. U.S. Customs Serv., 71 F.3d 885,

888, 890 (D.C. Cir. 1995) (explaining that FOIA request for “all records and documents

pertaining to [Ross] Perot” encompassed not only “records indexed under Perot’s name” but

rather all “information about Perot, even if it was not indexed under his name”); Nicholls v. U.S.

Off. of Pers. Mgmt., 863 F. Supp. 2d 4, 11 (D.D.C. 2012) (explaining that the phrase “relate to”

in FOIA request “denotes only some connection or reference to the relevant object” (citation

omitted)). So interpreted, it does not require immense creativity to imagine records that would

20 fit within the scope of PPSA’s request without implicating the national security concerns raised

by Defendants. For example, a letter from a member of Congress to the NSA inquiring as to

whether the NSA had purchased commercially available information on any of the listed

Senators or Congresspeople would fall within the scope of PPSA’s request while simultaneously

not revealing whether the NSA had, in fact, purchased such information or whether the NSA had

a particular interest in surveilling the individual. See PETA, 745 F.3d at 545 (citing similar

example in rejecting blanket Glomar response); PPSA II, 633 F. Supp. 3d at 121 (same). In

other words, it is difficult to see how a document such as this would reveal sensitive information

about Defendants’ intelligence activities, sources, or methods. See PPSA II, 633 F. Supp. 3d at

122. 9

In sum, “[b]ecause there exists a category of responsive documents for which a Glomar

response would be unwarranted, [Defendants’] assertion of a blanket Glomar response . . .

cannot be sustained.” PETA, 745 F.3d at 545. Instead, Defendants must conduct a search for

“policy documents.” To the extent that that search uncovers communications that reveal either

classified or sensitive national security information, Defendants may, of course, either renew

their Glomar-based objections or withhold documents under any relevant FOIA exemptions.

9 For similar reasons, the Court finds that the FBI and the OIP have not plausibly explained why “policy documents” would be protected by Exemptions 6, 7(C), or 7(E). Those agencies claim that official acknowledgment of the records sought by PPSA would necessarily “connect” the listed individuals to “law enforcement investigations”—a fact that would impinge on those individuals’ privacy interests. See Defs.’ Mot at 20. But a letter like the hypothetical one described above would do no such thing. It would not necessarily indicate that there was, in fact, any active law enforcement interest in a specific individual. At most, it might indicate that certain members of Congress were interested in whether they or their colleagues were being investigated. See PETA, 745 F.3d at 544–45. Similarly, the FBI and the OIP have not plausibly explained how acknowledging the existence of such records would “necessarily disclose any law enforcement procedure, technique, or guideline that would risk circumvention of the law under Exemption 7(E).” PPSA II, 633 F. Supp. 3d at 122.

21 V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 26) is

GRANTED IN PART AND DENIED IN PART and Plaintiff’s cross-motion for summary

judgment (ECF No. 29) is DENIED. The parties are ORDERED to submit a proposed schedule

for further proceedings within two weeks of the issuance of this opinion. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: January 5, 2024 RUDOLPH CONTRERAS United States District Judge