HETZNECKER v. NATIONAL SECURITY AGENCY
2:16-cv-00945
| E.D. Pa. | Jan 20, 2017Background
- Paul Hetznecker (counsel for Occupy Philly participants) made FOIA requests to the NSA, CIA, and FBI for records related to Occupy Philly; agencies denied requests and asserted Glomar Responses.
- NSA issued a Glomar (neither confirm nor deny existence) based on national-security exemptions; CIA initially redirected request to FBI and later adopted a Glomar asserting Exemptions 1 and 3.
- Agencies moved for summary judgment; the Court did not decide the motion and ordered the NSA and CIA to search, prepare Vaughn indices, and submit those indices for in camera review.
- The Court required index submission even if no responsive records were found, and stated that if necessary it would review agency records ex parte to preserve Glomar secrecy.
- NSA and CIA moved for reconsideration, arguing the Court erred by ordering in camera review while Glomar Responses were pending and before evaluating the public affidavits.
- The Court denied reconsideration, holding that district courts have broad discretion to order in camera review even after a Glomar Response and even where public affidavits might appear sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may order in camera review after agencies assert Glomar Responses | Hetznecker argued the court should proceed with normal FOIA review (search/Vaughn) and may require in camera review to evaluate exemptions | NSA/CIA argued a Glomar precludes requiring disclosures that would reveal existence/nonexistence; court should first decide sufficiency of public affidavits without in camera submissions | Court held it has broad discretion to order in camera review despite Glomar Responses and may require Vaughn indices and ex parte review where necessary |
| Whether the court erred by ordering agencies to compile and submit Vaughn Indices even if no records were found | Hetznecker supported the order as necessary for judicial oversight and to preserve public record completeness | Agencies argued compiling/submitting indices would undermine Glomar and was unnecessary if affidavits suffice | Court held requiring Vaughn indices (and searches) preserves status quo and does not cause manifest injustice; order stands |
| Standard for in camera review in FOIA national-security contexts | Hetznecker contended in camera review is proper to verify agency claims and avoid unchecked agency characterizations | Agencies contended deference to agency expertise should limit in camera intervention once affidavits appear sufficient | Court reiterated precedents allowing in camera inspection even when affidavits are sufficient; deference exists but final judicial determination requires review when appropriate |
| Whether the motion for reconsideration met the high standard for relief | Hetznecker argued no change needed; public interest and precedent support court's discretion | Agencies argued a clear error of law occurred and urged reconsideration | Court found no manifest error of law or fact and denied reconsideration |
Key Cases Cited
- U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FOIA’s purpose is public understanding of government operations)
- Armstrong v. Exec. Office of the President, 97 F.3d 575 (D.C. Cir. 1996) (district courts have broad discretion to order in camera review)
- Patterson v. FBI, 893 F.2d 595 (3d Cir. 1990) (even with sufficient affidavits, court may conduct in camera review in Glomar-like contexts)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (Glomar Response covers existence/nonexistence when that fact itself is protected)
- Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976) (origin of Glomar doctrine protecting existence/nonexistence disclosure)
- Ferri v. Bell, 645 F.2d 1213 (3d Cir. 1981) (in camera inspection appropriate without a finding of bad faith)