Gallagher v. NSA-Nat'l Sec. Agency

Decision Date24 August 2020
Docket NumberCivil Action No. 18-cv-01525-RM-KMT
PartiesRYAN GALLAGHER, Plaintiff, v. NSA-NATIONAL SECURITY AGENCY, Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This case comes before the court on "Defendant's Motion for Summary Judgment" (Doc. No. 95 [Mot.], filed December 16, 2019). Plaintiff did not respond to the motion.

BACKGROUND

This case arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Plaintiff filed a FOIA/Privacy Act Request with the National Security Agencey ("NSA") in October 2016, seeking "ANY Records that Agency has from PRISM or other Spying on me, ... any agency, any spying." (Doc. No. 96 [Moving Party's Undisputed Material Facts] ("MSUMF"), ¶¶ 5-6.) The NSA interpreted this as a request for intelligence records in the NSA's possession relating to Plaintiff. (Id., ¶ 7.)

On October 21, 2016, the NSA issued what is known as "Glomar" response in response to Plaintiff's request.1 (Id. ¶¶ 8-12.) A Glomar response is one that refuses to confirm or deny the existence of responsive records, because the existence or non-existence of such records is itself a fact whose disclosure would cause cognizable harm under, or otherwise implicate, the FOIA or Privacy Act exemptions. (Id., ¶ 12.) In responding to Plaintiff's request, the NSA explained that (1) whether the NSA maintains intelligence records relating to specific individuals constitutes classified information pursuant to Executive Order 13526 ("Classified National Security Information"), and is thus protected under FOIA Exemption 1 and Privacy Act Exemption (k)(1); and (2) the information is also protected under FOIA Exemption 3, which authorizes the withholding of information protected from disclosure by statute. (Id. ¶¶ 9-11.) Accordingly, the NSA denied Plaintiff's request for intelligence records relating to himself. (Id., ¶ 13.)

Several months later, Plaintiff sent an email to the NSA expressing disagreement with the NSA's response. (Id., ¶ 14.) The NSA construed this email as an administrative appeal. (Id. ¶ 15.) In June 2017, the NSA issued an appeal decision upholding its previous Glomar response on the same basis it had previously articulated to Plaintiff. (Id., ¶¶ 15-16.)

Plaintiff initiated this action on June 18, 2018. (Doc. No. 1 [Compl.].) On August 6, 2018, he filed an Amended Complaint that contained two claims. (Doc. No. 14 [Am. Compl.]) Plaintiff's first claim challenged the NSA's FOIA/Privacy Act response on the ground that the NSA had "improperly invoked" its "claim of classification" over the information Plaintiffrequested. (Id. at 4.) Plaintiff's second claim challenged the constitutional validity of four intelligence-related statutes. (Id. at 5.) The second claim was dismissed from the action on October 15, 2019. (See Doc. No. 92.)

Accordingly, only the first claim challenging the propriety of the NSA's Glomar response remains. As relief on this claim, Plaintiff asks the Court to "make a determination" regarding whether the NSA's Glomar response was proper, and to order the NSA to release "relevant documents" responsive to his FOIA/Privacy Act request. (Compl. at 6.) Defendant moves for summary judgment on Plaintiff's remaining claim. (Mot.)

STANDARDS OF REVIEW
A. Summary Judgment

Summary judgment is appropriate 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). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if theevidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. The following axioms have a bearing on summary judgment disposition—i.e., (1) that "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); (2) "the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue" id. at 256; and (3) "the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor." Id. at 257.

Moreover, because Plaintiff is proceeding pro se, the court, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that noreasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.

B. Freedom of Information Act

"In general, FOIA request cases are resolved on summary judgment." See World Publishing Co. v. U.S. Dep't of Justice, 672 F.3d 825, 832 (10th Cir. 2012). Courts may award summary judgment in FOIA cases based solely upon the information provided in affidavits or declarations. See World Publishing Co., 672 F.3d at 832 (observing that a court may grant summary judgment based on declarations); Hull v. IRS, 656 F.2d 1154, 1178 (10th Cir. 2011) ("To satisfy its burden of proof under FOIA, an agency typically submits affidavits."). "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (cited by the Tenth Circuit with approval in Trentadue v. FBI, 572 F.3d 794, 808 (10th Cir. 2009)). If the affidavits "'provide specific information sufficient to place the documents within the exemption 5 category, if the information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate.' " Hull, 656 F.2d at 1177-78.

In addition, in cases implicating national security issues, such as this one, courts accord even greater weight to agency declarations. See Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (courts "must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record"). This is "[b]ecause courts 'lack the expertise necessary to second-guess such agency opinions in thetypical national security FOIA case.' " Id. (citation omitted); see also Ctr. for Nat. Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003) (recognizing the "propriety of deference to the executive in the context of FOIA claims which implicate national security." (citing Zadvydas v. Davis, 533 U.S. 678, 696 (2001)); Trentadue v. FBI, No. 2:12-cv-974 DAK, 2015 WL 3606068, at *2 (D. Utah June 8, 2015) ("Courts have routinely and repeatedly emphasized that 'weighing the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the nation's intelligence-gathering process' is a task best left to the Executive Branch and not attempted by the judiciary.") (quoting CIA v. Sims, 471 U.S. 159, 180 (1985)).

C. Privacy Act

The Privacy Act, 5 U.S.C. § 552a, "governs the government's collection and dissemination of information and maintenance of its records." Gowan v. U.S. Dep't of Air Force, 148 F.3d 1182, 1187 (10th Cir. 1998). Under the Privacy Act, each agency that maintains a "system of records" must, upon request by any individual "to gain access to his record or to any information pertaining to him contained in the system," permit that individual to review his records and to have copies made of those records. See 5 U.S.C. § 552a(d)(1).

The Privacy Act also permits agencies to exempt certain records from the requirements of § 552a(d). See 5 U.S.C. § 552a(j)-(k). As relevant to this case, records exempt from disclosure under FOIA Exemption 1 are also exempt under the Privacy Act. 5 U.S.C. § 552a(k)(1). When an agency moves for summary judgment on the basis of a statutory exemption under the ...

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