Electronic Privacy Information Center v. National Security Agency
2011 U.S. Dist. LEXIS 72751
| D.D.C. | 2011Background
- EPIC's June 25, 2009 FOIA request to the NSA sought CNCI-related documents, including NSPD 54/HSPD 23 text, CNCI full text and protocols, and privacy policies for CNCI-related information sharing.
- NSA located three responsive records; two were withheld; one originated with NSC and was referred to NSC for review.
- Plaintiff alleges NSA violated FOIA deadlines and improperly withheld records; NSC is not FOIA-subject and cannot be compelled to disclose.
- Plaintiff asserts NSA referred the NSC-originated record to NSC; NSC is not an agency under FOIA, and the referral allegedly impeded disclosure.
- Counts I and II concern NSA FOIA compliance and improper referral; Counts III and IV target NSC non-disclosure and NSA-APA challenge to referral; NSA moves to dismiss Counts III and IV as pleaded.
- Court grants partial motion to dismiss Counts III and IV and dismisses NSC from the action, with scheduling on Vaughn index and motions remaining for Counts I-II.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NSC is an agency subject to FOIA | EPIC argues NSC should be FOIA-subject due to referral | NSC is not an agency under FOIA; Armstrong controls | NSC not subject to FOIA; Count III dismissed |
| Whether NSA's referral to NSC improperly withholds records | Referral causes withholding or delay in access | Referral does not convert NSC into FOIA agency; NSA still must respond | Referral does not render NSC FOIA-subject; NSA may still be liable for improper withholding under FOIA in Counts I-II; Count III dismissed while Count II remains for NSA handling |
| Whether the APA claim is precluded by an adequate FOIA remedy | APA claim should proceed alongside FOIA | FOIA provides adequate remedy; APA claim should be dismissed | APA claim dismissed due to adequate FOIA remedy; Count IV dismissed |
Key Cases Cited
- Armstrong v. Exec. Office of the President, 90 F.3d 553 (D.C.Cir.1996) (NSC not FOIA agency; factors for agency status)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (Supreme Court 1980) (executive staff not an agency under FOIA)
- Emily's List v. FEC, 581 F.3d 1 (D.C.Cir.2009) (agency power to expand FOIA power limited by Congress)
- California Independent Sys. Operator Corp. v. FERC, 372 F.3d 395 (D.C.Cir.2004) (agency action limits; even when arguments extend beyond core function)
- Feinman v. FBI, 713 F. Supp. 2d 70 (D.D.C.2010) (APA claims duplicative of FOIA relief; adequate FOIA remedy forecloses APA review)
- McGehee v. CIA, 697 F.2d 1095 (D.C.Cir.1983) (withholding analysis under FOIA referrals; timing and reasonableness)
- Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C.Cir.2010) (FOIA exemptions are exclusive and narrowly construed)