Electronic Privacy Information Center v. National Security Agency
400 U.S. App. D.C. 327
D.C. Cir.2012Background
- EPIC requested NSA records about NSA-Google collaboration on cybersecurity and Gmail encryption (three categories).
- NSA issued a Glomar response under FOIA Exemption 3 and NSA Act §6, refusing to confirm or deny existence of responsive records.
- District court granted NSA summary judgment based on the Janosek Declaration detailing NSA’s Information Assurance mission and potential harms of disclosure.
- EPIC challenged the Glomar response; the parties cross-moved for summary judgment.
- Court reviews under FOIA Exemption 3, Glomar doctrine, and NSA Act §6, focusing on whether disclosure would reveal NSA functions or activities.
- Court analyzes whether the Janosek Declaration provides adequate, non-conclusory detail to support the Glomar justification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glomar justified under Exemption 3 and §6. | EPIC argues Glomar is inappropriate for non-classified NSA activities. | NSA contends §6 qualifies as Exemption 3; disclosure would reveal NSA activities. | Yes; Glomar justified; disclosure would reveal NSA activities. |
| Whether EPIC's broad request requires search/segregability before Glomar. | EPIC demands search and segregability analysis. | Glomar narrows issue to existence; no search/segregability required. | Correct; no search/segregability mandated under Glomar. |
| Whether NSA affidavits meet the “logical/plausible” standard. | Affidavits are too conclusory to sustain Glomar. | Affidavits provide plausible, specific discussion of Information Assurance mission. | Affidavits sufficient to support Glomar. |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C.Cir.2007) (Glomar admissibility; disclosure would reveal exempt information)
- Larson v. Dep't of State, 565 F.3d 857 (D.C.Cir.2009) (agency need only show that withheld info relates to NSA function/activity)
- Founding Church of Scientology of Washington, D.C. v. NSA, 610 F.2d 824 (D.C.Cir.1979) (section 6 exemptions; affidavits must be detailed)
- Jefferson v. Dep't of Justice, Office of Prof'l Resp., 284 F.3d 172 (D.C.Cir.2002) (Glomar limitations; not all records may be withheld)
- Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885 (D.C.Cir.1995) (segregability and search requirements; generally applied)
- Frugone v. CIA, 169 F.3d 772 (D.C.Cir.1999) (agency protection of sensitive information; public knowledge not waiver)