Am. Ctr. for Law & Justice v. U.S. Nat'l Sec. Agency

474 F.Supp.3d 109

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,

v.U.S. NATIONAL SECURITY AGENCY, et al., Defendants.

Case No. 1:17-cv-01425 (TNM)

United States District Court, District of Columbia.

Signed July 24, 2020

Andrew J. Ekonomou, Pro Hac Vice, Lambros Firm, Atlanta, GA, Craig L. Parshall, Pro Hac Vice, Jordan Adam Sekulow, Colby Mims May, Matthew Robert Clark, Olivia F. Summers, Stuart J. Roth, Benjamin Paul Sisney, American Center for Law & Justice, Washington, DC, Abigail A. Southerland, American Center for Law & Justice, Franklin, TN, for Plaintiff.

Emily Sue Newton, Anjali Motgi, U.S. Department of Justice, Nicholas P. Cartier, Federal Trade Commission, Washington, DC, for Defendant United States National Security Agency.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Nicholas P. Cartier, Federal Trade Commission, Emily Sue Newton, U.S. Department of Justice, Washington, DC, for Defendant Department of State.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

We all wear masks now, but this case is about a different type of masking. By law, intelligence agencies focus their surveillance on foreign persons and cannot intentionally target U.S. persons without individualized court orders. See 50 U.S.C. §§ 1881a, 1881b, 1881c. But even when surveilling appropriate targets, they sometimes incidentally capture information about U.S. persons. Intelligence reports typically "mask" the identities of these persons by using generic references such as "U.S. Person 1."

An "unmasking" request is a formal request to reveal the identity of an anonymized person. Unmasking is subject to strict limitations, and only certain high-ranking officials can authorize these requests. See id. §§ 1181a(e), 1801(h), 1821(4); Mot. Hr'g Tr. at 4–5.¹ As one might expect, this procedure is highly controversial when a government official seeks the unmasking of a political rival.

In 2017, media reports surfaced that members of President Trump's campaign and transition team had been caught up incidentally in surveillance by U.S. intelligence agencies. The reports suggested that officials in the outgoing Obama Administration had unmasked these individuals. Citing these reports, the American Center for Law and Justice ("ACLJ") submitted requests under the Freedom of Information Act ("FOIA") to the National Security Agency and the State Department, seeking records related to the alleged unmasking requests.

Both agencies refused to confirm or deny the existence of records responsive to most of ACLJ's requests. As to the rest, the NSA's search yielded no records and State's search yielded several records withheld in full or in part. ACLJ challenges some aspects of this response, and the matter is before the Court on cross-motions for summary judgment. Both motions will be granted in part and denied in part.

I.

In April 2017, Fox News reported that members of the Trump campaign and transition team had been targeted by U.S. Government surveillance activities.² According to the report, Susan Rice, National Security Advisor under President Obama, requested the unmasking of these individuals.

Citing this report, ACLJ sent a three-part FOIA request to the NSA. NSA Compl. Ex. A at 1–3, ECF No. 1-1.³ The request names Rice and four other senior officials in the Obama Administration: Cheryl Mills, Chief of Staff to the Secretary of State; Valerie Jarrett, Senior Advisor to the President; Loretta Lynch, Attorney General; and Ben Rhodes, Deputy National Security Advisor. Id. at 4. Part 1 seeks

All records ... where one communicant was Susan Rice, Cheryl Mills, Valerie Jarrett, Loretta Lynch, or Ben Rhodes, and another communicant was the Director of the [NSA] ... or any other NSA official or employee ... regarding ... communication[s], request[s] ... whereby [Rice, Mills, Jarrett, Lynch, or Rhodes] sought access to ... SIGINT reports or other intelligence products or reports containing the name(s) or any personal identifying information related to ... Donald Trump [and 46 other specified individuals.]

Id. at 4–5. Part 2, using similar language, targets any communications from the five Obama Administration officials requesting the unmasking of Trump or the same 46 others. Id. at 5–7.⁴ And Part 3 more generally seeks any communications between the five officials and the NSA referencing Trump or the 46 others. Id. at 7–8. For all three parts, the requested timeframe is "January 20, 2016, to January 20, 2017"—the final year of the Obama Administration. Id. at 3.

Invoking Exemptions 1 and 3 of FOIA, the NSA refused to confirm or deny the existence of records responsive to Parts 1 and 2 of ACLJ's request. Kiyosaki Decl. Ex. B at 24–25, ECF No. 37-1. And it found no records responsive to Part 3. Id. at 25. All told, ACLJ's FOIA request to the NSA has yielded not one document. ACLJ challenges the NSA's refusal to confirm or deny the existence of records responsive to Parts 1 and 2 and the adequacy of the agency's search as to Part 3. Pl.’s Cross-Mot. at 5–10, ECF No. 39.

Later in 2017, ACLJ sent a similar, six-part FOIA request to the State Department. State Compl. Ex. A, ECF No. 1-1 (17-cv-1991). It cited a report that Samantha Power, President Obama's Ambassador to the United Nations, had requested the unmasking of individuals associated with the Trump transition team. Id. at 2.⁵ Parts 1, 2, 4, and 5 seek records related to requests Power made to unmask any of the 47 individuals named in the NSA request. See id. at 4–11.⁶ These four parts concern intelligence-related materials, as they target Power's attempts to access "SIGINT reports or other intelligence products or reports." Id.

Parts 3 and 6, meanwhile, more generally seek any communications sent or received by Power referencing Trump or the 46 others. Id. at 7–8, 11; see Stein Decl. ¶ 6, ECF No. 37-3. For all six parts, the requested timeframe is "January 20, 2016, to January 20, 2017"—the same timeframe as with the NSA request. State Compl. Ex. A at 3.

Invoking FOIA Exemptions 1 and 3, State refused to confirm or deny the existence of records responsive to Parts 1, 2, 4, and 5 of ACLJ's request. Redmond Decl. Ex. B at 26, ECF No. 37-2. In response to Parts 3 and 6, as narrowed, State released 243 records in whole or in part and withheld nine documents in full. Stein Decl. ¶ 12.

ACLJ was unsatisfied. It challenges State's refusal to confirm or deny the existence of records responsive to Parts 1, 2, 4, and 5. Pl.’s Cross-Mot. at 5–8. It also challenges State's decision to withhold portions of 15 documents under Exemption 5 of FOIA. Id. at 10–16.

ACLJ does not challenge the adequacy of State's search for records responsive to Parts 3 and 6. And though it raised a "pattern, practice, or policy" claim, see State Compl. ¶¶ 64–77, ECF No. 1 (17-cv-1991), its summary judgment briefing never mentions this claim, so the Court considers it abandoned. See, e.g. , Noble Energy, Inc. v. Salazar , 691 F. Supp. 2d 14, 23 n.6 (D.D.C. 2010) ; accord Aliotta v. Bair , 614 F.3d 556, 562 (D.C. Cir. 2010) ("[P]laintiffs cannot raise on appeal claims they allege in their complaint but abandon at the summary judgment stage."); Grenier v. Cyanamid Plastics, Inc. , 70 F.3d 667, 678 (1st Cir. 1995) ("Even an issue raised in the complaint but ignored at summary judgment may be deemed waived.").

The Court held a hearing on the parties’ cross-motions and they are ripe for disposition.⁷

II.

Summary judgment is appropriate if the record 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 party seeking summary judgment has the initial burden of identifying those portions of the record that show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (cleaned up). The Court views the evidence "in the light most favorable to the non-moving party." Brubaker v. Metro. Life Ins. Co. , 482 F.3d 586, 588 (D.C. Cir. 2007).

"[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011). An agency must establish beyond material doubt that it has conducted an adequate search—one reasonably calculated to uncover all relevant documents. Morley v. CIA , 508 F.3d 1108, 1114 (D.C. Cir. 2007). If the agency withholds records under one of the FOIA exemptions, it "bears the burden of proving the applicability of [the] claimed exemptions." ACLU v. DOD , 628 F.3d 612, 619 (D.C. Cir. 2011). "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. (cleaned up). The agency must also produce any "reasonably segregable portion of a record ... after deletion of the portions which are exempt." 5 U.S.C. § 552(b).

To meet its burden, an agency may rely on affidavits, Aguiar v. DEA , 865 F.3d 730, 734–35 (D.C. Cir. 2017), which receive "a presumption of good faith," SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court may grant summary judgment based on the agency's affidavits alone "if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Aguiar , 865 F.3d at 734–35 (cleaned up).

III.

The parties’ cross-motions for summary judgment present three issues: (1) whether the NSA and State properly refuse to confirm or deny the existence of certain documents; (2) whether the NSA's search for records was adequate; and (3) whether State properly withheld portions of 15 documents under Exemption 5 of FOIA. In brief, the Court finds that State improperly refuses to confirm the existence of some documents, that...