Agility Public Warehousing Company K.S.C. v. National Security Agency
113 F. Supp. 3d 313
D.D.C.2015Background
- Agility Public Warehousing (Kuwaiti company) filed a FOIA request to NSA for all communications and related records; NSA issued a Glomar (neither confirm nor deny) for intelligence-related categories and searched for non‑intelligence contract/litigation records.
- The request followed public disclosures (Snowden/press and declassified FISC orders) about NSA bulk collection programs: telephony metadata (Section 215), PR/TT, PRISM, and upstream collection.
- The NSA acknowledged publicly a FISC Secondary Order requiring Verizon Business Network Services (VBNS) to provide telephony metadata for Apr 25–Jul 19, 2013; NSA otherwise declined to admit participation by specific providers or existence of other responsive intelligence records.
- Plaintiff argued (1) the Glomar was improper because public disclosures effectively acknowledged the NSA’s holdings, and (2) NSA’s non‑intelligence search (contracts and litigation) was inadequate.
- The court granted summary judgment for the NSA: it upheld the Glomar response except as to the limited VBNS period, held the FISC Primary/Secondary Orders and program restrictions bar disclosure even for that period, and found the NSA’s non‑intelligence search adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Glomar response under Exemptions 1 & 3 | Glomar improper because agency has publicly admitted bulk collection so confirming/denying would not harm methods | Exemptions 1 (classified information) and 3 (intelligence‑sources statutes) protect even existence/nonexistence; acknowledgement would reveal sources/methods | Glomar proper generally; Exemptions 1 & 3 invocation is logical/plausible and upheld except for limited acknowledged records |
| Official‑acknowledgment/public‑domain waiver | Public disclosures (press, declassified FISC orders, agency statements) waive Glomar for all collected communications | Only narrow, specific official acknowledgements waive Glomar; media or broad statements insufficient | Waiver found only for telephony metadata from VBNS for Apr 25–Jul 19, 2013; no waiver for other providers/periods or other collection programs |
| Whether FISC orders / program restrictions bar disclosure even for acknowledged VBNS records | Acknowledgment requires release of responsive records under FOIA | Primary/Secondary FISC Orders and program rules forbid accessing/disclosing metadata for FOIA purposes—NSA lacks discretion to release | Even for VBNS-period records, the Primary/Secondary Orders and program limits prevent NSA access/disclosure; withholding is not "improper" under FOIA |
| Adequacy of NSA's search for non‑intelligence (contract/litigation) records | NSA should have searched broader custodians and used more search terms (e.g., abbreviations, case numbers) | NSA reasonably searched Office of General Counsel, acquisitions, logistics with multiple name variants and contract numbers; other components unlikely to hold responsive non‑intelligence records | NSA search was reasonably calculated and adequate; plaintiff's requested discovery denied |
Key Cases Cited
- Milner v. U.S. Dep’t of Navy, 562 U.S. 562 (FOIA exemptions narrowly construed; Exemption 1 protects properly classified material)
- Moore v. CIA, 666 F.3d 1330 (D.C. Cir.) (official‑acknowledgment exception requires pinpointing an acknowledged record matching the request)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir.) (standards for Glomar responses and official‑acknowledgment doctrine)
- Am. Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir.) (agency may lose Glomar protection where it has officially acknowledged the specific information)
- Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926 (D.C. Cir.) (judicial deference to agency national‑security affidavits in Glomar context)
- Larson v. U.S. Dep’t of State, 565 F.3d 857 (D.C. Cir.) (standards for Exemption 3 and official withholding statutes)