Florida Immig. Advoc. Cen. v. National Sec. Agency

• Decision Date: 22 June 2005
• Docket Number: No. 04-21345-CIV.,04-21345-CIV.
• Citation: 380 F.Supp.2d 1332
• Parties: FLORIDA IMMIGRANT ADVOCACY CENTER, Plaintiff, v. NATIONAL SECURITY AGENCY, Defendant.
• Court: U.S. District Court — Southern District of Florida

380 F.Supp.2d 1332

FLORIDA IMMIGRANT ADVOCACY CENTER, Plaintiff, v. NATIONAL SECURITY AGENCY, Defendant.

No. 04-21345-CIV.

United States District Court, S.D. Florida.

June 22, 2005.

Cheryl Little, Esq., Mary Gundrum, Esq., Florida Immigrant Advocacy Center, Miami, FL, Carl Goldfarb, Ft. Lauderdale, FL, for Plaintiffs.

Carole Fernandez, Assistant United States Attorney, Miami, FL, for Defendants.

OMNIBUS ORDER

GOLD, District Judge.

I. Introduction and Background

THIS CAUSE is before the Court upon the Defendant's Motion for Summary Judgment [D.E. 13], the Defendant's Motion for Protective Order from Discovery [D.E. 18], the Plaintiff's Motion Pursuant to Rule 56(f) [D.E. 19], and the Plaintiff's Motion for Partial Summary Judgment [D.E. 46]. The essential controversy concerns the Plaintiff's request to the National Security Agency under the Freedom of Information Act for any and all information regarding the use of Haiti as a staging ground for the migration of third country nationals to the United States. Upon a search of documents pursuant to the request, the NSA located a one-page NSA-originated document which it claimed was exempted from Freedom of Information Act because it was classified as "Top Secret."

By order of the Court, dated February 7, 2005, I required the NSA to respond to the Plaintiff's request for discovery under seal for review in camera by the Court. Upon reviewing the discovery, I set oral argument on the pending motions for Friday, May 27, 2005, and further ordered the Defendant to produce the one-page document at issue for my review in camera. Upon reviewing the document in camera, and hearing oral argument, I conclude that Defendant's motion for summary judgment should be GRANTED, Defendant's motion for a protective order from discovery should be GRANTED, the Plaintiff's motion pursuant to Fed.R.Civ.P. 56(f) should be DENIED, and the Plaintiff's motion for partial summary judgment should be DENIED.

In this Order, I address only the issues presented to me in this litigation. I emphasize that this litigation does not concern the validity of the Government's policy towards Haitian immigration, or the merit, or factual validity, of the former Attorney General's position that Haiti is a staging point for attempted immigration to the United States of "third country nationals." As conceded at oral argument,¹ if either Exemption 1 or 3 of the FOIA applies, there is an absolute bar to the Plaintiff's request without resort to the balancing of Plaintiff's need for the information verses the extent of the national security interests involved.

II. Undisputed Facts

On May 21, 2003, Plaintiff sent Defendant a request for records under the Freedom of Information Act. [Exhibit 1 to Plaintiff's complaint; Giles Affidavit, ¶¶ 2, 8]. The request sought:

... any and all information regarding the use of Haiti as a staging ground for the migration of third country nationals to the United States. Specifically, we seek all such information that provided the basis for U.S. Attorney General John Ashcroft to state in the In Re D-J (23 I. & N. Dec. 572 , April 17, 2003): "Thus, the State Department declaration asserts that it has `noticed an increase in third country nations (Pakistanis, Palestinians, etc.) using Haiti as a staging point for attempted migration to the United States...."

INS Brief, Exh. B, par. 11.

Following receipt of the request, the NSA conducted a database search for records potentially responsive and identified several documents. [Giles Affidavit, ¶ 9]. The documents identified which belonged to other agencies were referred to those agencies for response to the requestor. [Giles Affidavit, ¶ 9]. Indeed, Plaintiffs acknowledge that it submitted an identical FOIA request to the United States Department of State, also on May 21, 2003. [Goldfarb Affidavit, ¶ 15]. In response, the State Department released a number of documents. [Goldfarb Affidavit, ¶ 15 and Plaintiff's Composite Ex. 9].

On August 25, 2003, the NSA responded, stating that "One (1) NSA-originated document (1 page), responsive to your request" is currently and properly classified as "TOP SECRET" under Executive Order 12958, as amended, Sec. 1.4(c)(g). As such, it is exempt from disclosure as a national security document. Additionally, the NSA contended that the document is exempt from disclosure under another exception in FOIA, Sec. 3, which allows withholding of information specifically protected by statute. [Exhibit 2 to Plaintiff's complaint; Giles Affidavit ¶¶ 2, 8].

By letter dated October 24, 2003, Plaintiff administratively appealed the NSA's withholding of the one-page document, and, on March 1, 2004, the NSA issued a decision affirming that the document should be withheld. [Exhibits 3 and 4 to Plaintiff's complaint; Giles Affidavit ¶¶ 2, 8].

In filing the subject complaint, the Plaintiff specifically requested, in its prayer for relief, the following: that this Court conclude that there is no legal basis for the denial of the Plaintiff's request; that, to the extent national security exemptions are claimed, the Court should examine the contents of the document in camera to "determine whether the government has met its burden that such records or any part of them shall be withheld under the exemptions set forth in FOIA"; and that the Court issue an injunction compelling "defendants to produce immediately and in its entirety the one page document identified by N.S.A. as responsive to FIAC's request." [D.E. 1, pages 6-7].

The document withheld by NSA is a one-page report generated in connection with NSA's signals intelligence ("SIGINT") mission. [Giles Affidavit, ¶¶ 4-7]. The primary purpose of NSA's SIGINT mission is to obtain information necessary to national defense, national security, or the conduct of foreign affairs of the United States by intercepting communications of foreign governments. [Giles Affidavit, ¶¶ 5-6]. NSA's effectiveness in intercepting foreign communications depends upon maintaining the strict secrecy regarding matters related to the process, such as the identity of specific communications, or "targets," and successfulness of intercept operations. [Giles Affidavit, ¶ 7].

SIGINT information is exceptionally sensitive and vulnerable and is subject to even more safeguards and access requirements than those normally required for information of the same classification level. [Giles Affidavit, ¶ 4]. Giles, who is NSA's Director of Policy, and who has a TOP SECRET classification authority, reviewed the one-page SIGINT report and determined that it is properly classified TOP SECRET pursuant to the standards set forth in Executive Order 12958. [Giles Affidavit, ¶¶ 1, 2, 11, 13]. Further, he determined that no portion of the document can be reasonably segregated and disclosed without revealing the sources and methods used by the NSA to obtain the information and potentially revealing the specific communication source involved. [Giles Affidavit, ¶¶ 2-4].

By order dated February 7, 2005, I required that the NSA fully answer Plaintiff's requested discovery under seal. I required that the discovery response distinguish between purported classified information and non-classified information, or explain why such a distinction cannot be made under the circumstances, particularly as it relates to the search conducted, and to show cause why the non-classified information is not discoverable. [D.E. 29]. Following receipt and review of the sealed responses, I issued a further order requiring that the one-page document be provided to the Court for review in camera prior to oral argument. [D.E. 36]. This Order granted one aspect of Plaintiff's relief, that is, the request for in camera inspection.

On May 26, 2005, I reviewed the one-page document in camera and returned it to the appropriate official. At oral argument, I announced orally the denial of Plaintiff's request for discovery and the granting of Defendant's motion for protective order. See Transcript of Oral Argument at 2:13:02-2:13:27. I further required that Plaintiff file a response to Defendant's motion for summary judgment.² Id.

Following Oral Argument, Plaintiff filed a response to Defendant's motion for summary judgment [D.E. 51] on June 6, 2005.³ Defendant filed a reply to Plaintiff's response [D.E. 53] on June 13, 2005.

III. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment when the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512; Bishop v. Birmingham Police Dep't, 361 F.3d 607, 609 (11th Cir.2004).

The moving party bears the initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Once the moving party satisfies this burden, the burden shifts to the party opposing the motion to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A factual dispute is genuine only if the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.2001).

In assessing whether the movant has met its burden, the court should view the evidence in the light most favorable to the party opposing the motion and should resolve all reasonable doubts...