All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. Dep't of Def., Civil Action No. 09–2375 (PLF)

• Decision Date: 29 September 2015
• Docket Number: Civil Action No. 09–2375 (PLF)
• Citation: 134 F.Supp.3d 201
• Parties: All Party Parliamentary Group on Extraordinary Rendition et al., Plaintiffs, v. U.S. Department of Defense et al., Defendants.
• Court: U.S. District Court — District of Columbia

134 F.Supp.3d 201

All Party Parliamentary Group on Extraordinary Rendition et al., Plaintiffs,

v.U.S. Department of Defense et al., Defendants.

Civil Action No. 09–2375 (PLF)

United States District Court, District of Columbia.

Signed September 29, 2015

Audrey Elaine Moog, Hogan Lovells U.S. LLP, Washington, DC, Adam R. Feeney, Carolyn E. Kruk, Joe Cyr, Hogan Lovells U.S. LLP, New York, NY, for Plaintiffs.

W. Scott Simpson, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER

PAUL L. FRIEDMAN

, United States District Judge

Plaintiffs, an elected member of the U.K. Parliament, a parliamentary group, and an American attorney, brought this suit pursuant to the Freedom of Information Act ("FOIA") against various government agencies, including the United States Department of Defense. Plaintiffs have requested documents related to (1) the United States' extraordinary rendition program, and (2) intelligence operations concerning certain terrorist suspects held by the United States. The National Security Agency ("NSA"), a separate agency within the Department of Defense, and the plaintiffs have cross-moved for summary judgment. After careful consideration of the parties' papers, the attached declarations and exhibits, the relevant legal authorities, and the oral arguments presented by counsel on August 18, 2015, the Court will grant the NSA's motion for partial summary judgment and deny the plaintiffs' cross-motion.¹

I. BACKGROUND

Plaintiffs seek records responsive to 43 POIA requests submitted to defendants. Roughly half of plaintiffs' requests, Nos. 1–18, 21–34, 41 (in part), and 43 (collectively "Group 1 Requests"), concern the United States' extraordinary rendition program. Compl. Ex. A (FOIA Request) at 7–11. Specifically, plaintiffs seeks records relating to communications between the United States and foreign governments about extraordinary rendition and secret detention, names of detainees, information about where detainees were held and transported, details about the detention of Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al Nashiri, and intelligence information gathered from the interrogation of these individuals. Id.

The remaining half of plaintiffs' requests, Nos. 19–20, 35–40, 41 (in part), and 42 (collectively "Group 2 Requests"), relate to documents regarding certain terrorist suspects detained by the United States. Compl. Ex. A (FOIA Request) at 7–11. Specifically, the requests seek documents concerning communications between the U.K., the United States, or any foreign government about Abu Qatada between September 2001 and November 1, 2002, Abu Qatada's locations during that period, names of individuals detained by other countries, intelligence gathered about specific terrorist plots and the sources for this intelligence, and the sources of intelligence used to arrest and detain Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri. Id.

II. LEGAL STANDARD

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009)

; see also Sack v. U.S. Dep't of Defense, 6 F.Supp.3d 78, 85 (D.D.C.2013). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In a FOIA action to compel production of agency records, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements." ’ Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) ).

To establish that its search for responsive records was adequate, an agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990)

; see also Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C.Cir.2011) (quoting Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (noting an agency's FOIA obligations are fulfilled "if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents' "). A search need not be exhaustive, Saldana v. FBI, 715 F.Supp.2d 24, 26 (D.D.C.2010), and an agency's failure to find a particular document does not undermine the determination that the search was adequate. Wilbur v. CIA, 355 P.3d 675, 678 (D.C.Cir.2004) ; Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 n. 7 (D.C.Cir.1995). The adequacy of a search therefore is not determined by its results, but by the method of the search itself, Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) ; see also Saldana v. FBI, 715 F.Supp.2d at 25–26, and a court is guided in this determination by principles of reasonableness. Oglesby v. U.S. Dep't of the Army, 920 F.2d at 68.

An agency can satisfy its burden with supporting affidavits or declarations if they are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991)

, and describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) ; see Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d at 514 ; Sack v. U.S. Dep't of Defense, 6 F.Supp.3d at 85. Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Lasko v. U.S. Dep't of Justice, 684 F.Supp.2d 120, 127 (D.D.C.2010) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200 ).

III. DISCUSSION

The NSA asserts that it is entitled to summary judgment because (1) no search is required for the Group 1 Requests because the NSA is unlikely to possess responsive documents; and (2) the Group 2 Requests seek material protected by Exemptions 1 and 3 of the FOIA and the NSA therefore need neither confirm nor deny the existence of responsive records. Def. Mot.

A. Group 1 Requests

The role of the NSA is to "[c]ollect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions." Exec. Order No. 13,470

, Further Amendments to Exec, Order No. 12,333, 73 Fed, Reg. 45,325, 45,334 (July 30, 2008) ; see also Sherman Decl. ¶ 5 ("NSA's cryptologic duties have two primary missions: (1) to collect, process, analyze, produce and disseminate signals intelligence (SIGINT) information for foreign intelligence and counterintelligence purposes to provide support for national and departmental requirements and for the conduct of military operations; and (2) to conduct information assurance activities."). The Group 1 Requests, however, relate only to human intelligence activities. See Compl. Ex. A (FOIA Request) at 7–11. The NSA thus argues that, because its function is limited solely to signals intelligence, it is unlikely to possess any documents responsive to the Group 1 Requests and is not required to search its records. See Sherman Decl. ¶ 6 ("The collection of HUMINT—that is, intelligence derived from human sources as opposed to signals—falls outside of NSA's authorities."); Def. Mot. at 10–12.² The Court agrees and concludes that a search for the documents requested would be futile; the NSA has satisfied its burden to conduct an adequate search. See Reyes v. EPA, 991 F.Supp.2d 20, 27 (D.D.C.2014) ("Where ... the Government's declarations establish that a search would be futile ... the reasonable search required by FOIA may be no search at all.") (quoting Amnesty Int'l USA v. CIA, 2008 WL 2519908, at *11 (S.D.N.Y.2008) ); Judicial Watch. Inc. v. U.S. Dep't of Homeland Sec., 857 F.Supp.2d 129, 145 (D.D.C.2012) ("the FOIA does not obligate agencies to undertake fishing expeditions in offices that are not reasonably likely to possess responsive records"). Summary judgment therefore is appropriate as to the Group 1 Requests.

Plaintiffs argue that the NSA's functions are much broader than it lets on. Pl. Opp. and Mot. at 14–16. Plaintiffs speculate that, because the NSA is a "key player in the war on terror," the NSA must be receiving human intelligence information from other intelligence agencies that is responsive to plaintiffs' Group I Requests. Id. at 15–16. Although plaintiffs' claims may be plausible, the NSA's declaration, filed under pain of perjury, is accorded a presumption of good faith and "cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Lasko v. U.S. Dept. of Justice, 684 F.Supp.2d at 127 (D.D.C.2010)

(quoting SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200 ).

B. Group 2 Requests

As to the Group 2 Requests, the NSA asserts that it can neither confirm nor deny the existence of responsive material because the requests fall within FOIA Exemptions 1 and 3. 5 U.S.C. § 552(b)(1) and (3)

; Def. Mot. at 12–17. This response is commonly referred to as a "Glomar response." See Phillippi v. CÌA, 546 F.2d 1009, 1010–11 (D.C.Cir.1976) (addressing the CIA's refusal to confirm or deny whether it had documents concerning its relationship with the Hughes Glomar Explorer, which was a ‘large vessel publicly listed as a [privately owned] research ship.’). An agency's Glomar response is proper if confirming...