Project for Privacy & Surveillance Accountability, Inc. v. United States Dep't of Justice

• Decision Date: 19 September 2022
• Docket Number: Civil Action 20-3657 (BAH)
• Parties: PROJECT FOR PRIVACY AND SURVEILLANCE ACCOUNTABILITY, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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PROJECT FOR PRIVACY AND SURVEILLANCE ACCOUNTABILITY, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 20-3657 (BAH)

United States District Court, District of Columbia

September 19, 2022

MEMORANDUM OPINION

BERYL A. HOWELL CHIEF JUDGE

Plaintiff Project for Privacy and Surveillance Accountability, Inc. filed this lawsuit against five federal agencies-namely, the U.S. Department of Justice (“DOJ”), Office of the Director of National Intelligence (“ODNI”) National Security Agency (“NSA”), Central Intelligence Agency (“CIA”), and U.S. Department of State (“DOS”)-challenging the agencies' responses to plaintiff's record requests, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C § 552, seeking records “on the unmasking and upstreaming-including requests for unmasking or upstreaming-of [48] current and former members of congressional intelligence committees.” Compl. ¶ 26, ECF No. 1. Relying on information leaked to the media regarding the unmasking of U.S. lawmakers in intelligence reports, plaintiff argues that the “frequency of such undisclosed surveillance indicates that unmaskings may have been requested for illegitimate reasons-for example, to gain information to embarrass or compromise members of congressional committees responsible for overseeing the intelligence community.” Compl. ¶ 23. All five defendant agencies, as well as DOJ's component, the Federal Bureau of Investigation (“FBI”), issued Glomar responses that neither confirmed nor denied the existence of records responsive to plaintiff's request. See Defs.' Statement of Material Facts Not in Dispute (“Defs.' SMF”) ¶¶ 6-7, 9, 11, 13 15, 17, 19, ECF No. 11. Plaintiff challenges these Glomar responses and further contends that defendants should have conducted searches for non-protected records before issuing their Glomar responses. The parties have now cross moved for summary judgment and, for the reasons explained below, defendants' motion for summary judgment, Defs.' Mot. Summ. J. (“Defs.' Mot.”), ECF No. 11, is granted and plaintiff's cross-motion for summary judgment, Pl.'s Cross-Mot. Summ. J. (“Pl.'s Cross-Mot.”), ECF No. 15, is denied.^[1]

I. BACKGROUND

Set out below is a brief review of plaintiff's FOIA requests and pertinent procedural history, as well as background for the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801-1885c, helpful to understanding the context for both the FOIA requests and responses at issue.

A. Plaintiff's FOIA Requests

On January 27 and 28, 2020, plaintiff, a non-profit corporation that “advocates for greater privacy and civil liberty protections from government surveillance,” Compl. ¶ 5, submitted substantially similar FOIA requests to DOJ, FBI, ODNI, NSA, CIA, and DOS. Compl. ¶¶ 27, 33, 38, 44, 50, 55. The FOIA requests sought two categories of “documents, reports, memoranda, or communications” emerging from surveillance under the FISA: (1) “regarding the unmasking-including all unmasking requests-of any [of the 48 listed current and former members of congressional intelligence committees] from January 1, 2008 to January 15, 2020”; and (2) “regarding the upstreaming-including all requests for upstreaming of any [of the same 48 current and former Congress members]” from the same time period. Compl. ¶¶ 27, 33, 38, 44, 50, 55.^[2]

Four of the six recipients of plaintiff's FOIA requests denied the requests and issued Glomar responses before the initiation of this litigation. On Feb. 4, 2020, ODNI provided a Glomar response under FOIA Exemptions 1 and 3, indicating that “[t]he fact of the existence or non-existence of the requested records is itself currently and properly classified, and could reveal intelligence sources and methods information that is protected from disclosure pursuant to Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1).” Compl. ¶ 34; id., Ex. G, Letter from Sally A. Nicholson, Chief, FOIA Branch, ODNI, to Gene Schaerr (Feb. 4, 2020) (“ODNI Denial Letter”), ECF No. 1-8. NSA denied the plaintiff's FOIA request under the same exemptions on Feb. 12, 2020, id. ¶ 39; id., Ex. M, Letter from John R. Chapman, Chief, NSA FOIA/PA Off., to Gene Schaerr (Feb. 12, 2020) (“NSA Denial Letter”), ECF No. 1-14. DOJ's National Security Division (“NSD”) denied plaintiff's FOIA request on Feb. 18, 2020, issuing a Glomar response under FOIA Exemption 1, id. ¶ 29; id., Ex. C, Letter from Arnetta Mallory, DOJ Government Information Specialist, to Gene Schaerr (Feb. 18, 2020) (“DOJ Denial Letter”), ECF No. 1-4, while the FBI denied plaintiff's FOIA request on June 22, 2020, issuing a Glomar response under FOIA Exemptions 1, 3, 6, 7(C) and 7(E), id. ¶ 46; id., Ex. T, Letter from Michael G. Seidel, Acting Section Chief, Record/Information Dissemination Section, Information Management Div., FBI, to Gene Schaerr (June 22, 2020) (“FBI Denial Letter”), ECF No. 1-21.

The denial letters declined to “confirm nor deny the existence of records responsive to [the plaintiff's] request.” FBI Denial Letter at 2; ODNI Denial Letter at 2. The NSD elaborated that, for FOIA requests regarding “operational files which document requests for and approvals of authority for the U.S. Intelligence Community to conduct certain foreign intelligence activities,” NSD does not search those records when the “confirmation or denial of the existence of responsive records” would reveal classified information. NSD Denial Letter at 3. NSA explained in its denial letter that “NSA collects and provides intelligence derived from foreign communications to policymakers, military commanders, and law enforcement officials” in order to “help these individuals” protect the national security of the United States and its allies. NSA Denial Letter at 3.

Plaintiff timely appealed the NSD, FBI, and ODNI denials of its FOIA requests, and all three denials were affirmed. See Decl. of Patrick N. Findlay, General Counsel, NSD (“NSD Decl.”), ECF No. 11-5; Decl. of Michael G. Seidel, Section Chief, Record/Info. Dissemination Section, Info. Mgmt. Div., FBI (“FBI Decl.”), ECF No. 11-4; Decl. of Gregory M. Koch, Chief, Info. Mgmt. Off., ODNI (“ODNI Decl.”), ECF No. 11-7. Rather than appeal NSA's denial of its January 2020 request, plaintiff submitted another FOIA request to this agency, on August 20, 2020, that attached a letter by then-Acting Director of National Intelligence Richard Grenell to Senate Select Intelligence Committee Vice Chairman Mark Warner, justifying Grenell's decision to declassify the identities of federal officials who sought to unmask the identity of General Flynn in intelligence reports. Compl. ¶ 40; id., Ex. N, Letter from Gene Schaerr, General Counsel, Project for Privacy & Surveillance Accountability, to NSA (Aug. 20, 2020), ECF No. 1-15. NSA declined to process the August 2020 request due to its prior response, but upon plaintiff's appeal of that declination, which was granted, NSA issued a new Glomar response to plaintiff's August 2020 request as well. See id., Ex. O, Letter from Sharon C. Linkous, Acting Chief, FOIA/PA Off., NSA, to Schaerr (Sept. 1, 2020), ECF No. 1-16; id., Ex. P, Letter from Schaerr to NSA/CSS FOIA/PA Appeal Authority (Oct. 9, 2020), ECF No. 1-17; Decl. of Linda M. Kiyosaki, Chief of Policy, Info., Performance, and Exports, NSA (“NSA Decl.”) ¶¶ 16-17, ECF No. 11-2.

Although DOS and CIA acknowledged receipt of plaintiff's requests, these two agencies did not reply to the plaintiff's requests until May 28, 2021 and May 14, 2021, respectively, after this litigation had been initiated, when they issued Glomar responses on the basis of FOIA Exemptions 1 and 3. Compl. ¶¶ 51-53, 56-58; Defs.' SMF ¶¶ 17, 19; Pl.'s Response to Defs.' SMF & Pl.'s Counter-Statement of Material Facts Not in Dispute (“Pl.'s Resp. SMF”) ¶¶ 17, 19, ECF No. 15.

B. Incidental Surveillance of U.S. Persons under FISA

FISA provides the Attorney General and Director of National Intelligence with legal authorization for use of surveillance tools for “foreign intelligence purposes.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 402 (2013). The statute is tailored to minimize domestic surveillance, requiring that targets be “foreign power[s] or [] agent[s] of a foreign power,” 50 U.S.C. § 1804(a)(3)(A), or, in the case of FISA surveillance authorized by Section 702, targets must be “reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a).^[3] Under Section 702, the Attorney General and DNI may neither intentionally target any person within the United States, nor “United States persons”-defined, inter alia, to include citizens and lawful permanent residents, 50 U.S.C. § 1801(i)- outside of the country. Id. at § 1881a(b)(1)-(3). Still, information about U.S. persons may be incidentally collected by surveillance conducted under FISA.

1. Masking

Information collected under FISA-authorized surveillance is subject to minimization procedures designed to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” Id. at § 1801(h)(1); see also § 1881a(e)(1). One of those procedures involves “masking” the identity of U.S. persons included in intelligence reports with generic phrases such as “a named U.S. person.” FBI Decl ¶ 15. Generally, however, government officials may request that an anonymized person be revealed-called “unmasking”-if the information “constitutes foreign intelligence, is necessary for the recipient to understand the foreign intelligence being transmitted, or is evidence of a crime.” Id. The unmasking process is subject to strict documentation requirements. See ODNI,...