Electronic Privacy Information Center v. National Security Agency
2011 U.S. Dist. LEXIS 74911
D.D.C.2011Background
- This FOIA case concerns NSA's alleged relationship with Google in relation to cyber-security matters following a 2010 media report.
- EPIC submitted a FOIA request seeking: (1) records on any NSA-Google collaboration; (2) communications about Gmail encryption; (3) communications about NSA's role in Google's cloud services encryption.
- NSA denied the request and issued a Glomar response, refusing to confirm or deny the existence of records, citing Exemption 3 and NSA Act Sec. 6.
- EPIC appealed; NSA filed a motion for summary judgment arguing the Glomar response and exemptions were appropriate.
- The court granted NSA's motion, holding the Janosek Declaration sufficiently supports the NSA's Section 6 rationale and denying EPIC's cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glomar denial was proper under Exemption 3 and Sec. 6 | EPIC argues NSA must disclose or search; Glomar is improper | NSA contends disclosure would reveal NSA functions; Sec. 6 supports withholding | Glomar proper; Exemption 3 and Sec. 6 justified withholding |
| Whether the Janosek Declaration suffices to support withholding | Declaration is vague and conclusory | Declaration provides detailed rationale tying to Information Assurance mission | Janosek Declaration adequate to sustain withholding |
| Whether NSA must disclose non-exempt material before Glomar | FOIA requires search and segregation before Glomar | No, Glomar can apply without disclosure of non-exempt material | No requirement to disclose non-exempt material prior to Glomar |
| Whether public disclosures affect FOIA protections | Media reporting does not waive protections | Official disclosure is required to waive FOIA protections | Media reports do not waive protections; official disclosure required to waive; Glomar remains valid |
Key Cases Cited
- Hayden v. NSA/CSS, 608 F.2d 1381 (D.C.Cir. 1979) (deference to agency affidavits; exemptions must be plausible)
- Founding Church of Scientology of Washington, D.C., Inc. v. NSA, 610 F.2d 824 (D.C.Cir. 1979) (Section 6 broader prohibitions on NSA disclosures)
- Goland v. C.I.A., 607 F.2d 339 (D.C.Cir. 1978) (exemption analysis focuses on statutory coverage rather than document specifics)
- Sims v. C.I.A., 471 U.S. 159 (U.S. 1985) (bit-by-bit data may reveal national security information when combined)
- Phillippi v. C.I.A., 546 F.2d 1009 (D.C.Cir. 1976) (Glomar derives from refusal to confirm/deny existence of records)
- Larson v. U.S. Dep’t of State, 565 F.3d 857 (D.C.Cir. 2009) (agency affidavits may support withholding if the rationale is plausible)