MEMORANDUM OPINION
Plaintiff Ryan Shapiro brought this action against four federal agencies pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. He alleges that each defendant has violated FOIA by inadequately processing his request for all documents in their possession that mention the famed South African activist and political leader Nelson Mandela. The Federal Bureau of Investigation (“FBI”) and the Defense Intelligence Agency (“DIA”) are in the process of reviewing and producing documents in response to Shapiro’s request. The Central Intelligence Agency (“CIA”), however, has moved to dismiss Shapiro’s complaint, arguing that he has not exhausted his administrative remedies because his FOIA request does not “reasonably describe” the records he seeks. And the National Security Agency (“NSA”) has moved for summary judgment, maintaining that its refusal even to confirm or deny the existence of what Shapiro has requested is warranted under two statutory disclosure exemptions. In his own cross-motion for summary judgment, Shapiro claims that the information the NSA wishes to keep secret has already been officially acknowledged; he also contends that the agency’s blanket nonres-ponse is premised on an unduly narrow interpretation of his FOIA request.
For the reasons explained below, the Court will deny the CIA’s motion to dismiss, grant in part the NSA’s motion for summary judgment, and deny Shapiro’s cross-motion for summary judgment.
Ryan Shapiro is a doctoral candidate at the Massachusetts Institute of Technology and a “historian of the political functioning of national security and the policing of dissent.” Pl.’s First Am. Compl. (“Compl.”) ¶ 2. On December 11, 2013, Shapiro submitted FOIA requests to the CIA, NSA, DIA, and FBI, “requesting copies of records mentioning or referring to” Nelson Mandela, the famed anti-apartheid activist and former President of South Africa. Id. ¶ 21. His requests to the CIA and the NSA were worded identically: “I request disclosure of any and all records that were prepared, received, transmitted, collected and/or maintained by the [agencies] mentioning the deceased individual Rolihlahla Mandela (aka Nelson Mandela, aka Madi-ba, aka Tata).” Compl. Ex. 3, at 1; id. Ex. 4, at 1. Both agencies refused to comply with Shapiro’s request, and the present motions stem from the parties’, disagreement about the adequacy of these responses.
Shapiro requested that the CIA search “all electronic and paper/manual indices, filing systems, and locations,” including “all of its directorates” and at least thirty enumerated “filing systems, indices, and locations.” Id. Ex. 3, at 4-5. This request— for which Shapiro sought expedited treatment — also encompassed emails and publicly available records. Id. at 2, 6. In a letter dated March 10, 2014, transmitted after Shapiro filed his initial Complaint, the CIA notified him that it could not process his FOIA request in its current form because to do so “would require the Agency to perform an unreasonably burdensome search.” Def. CIA’s Mot. Dismiss Ex. B, at 1. The CIA further explained that “FOIA requires requesters to ‘reasonably describe’ the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort.” Id. The agency closed its letter by inviting Shapiro to narrow the scope of his “[e]xtremely broad” and “vague” request. Id.
Instead, he amended his Complaint, claiming that the CIA had violated FOIA by “improperly withholding records, failing to conduct an adequate search, and ... refusing to process the request at all.” Compl. ¶ 59. The CIA has moved to dismiss Shapiro’s First Amended Complaint, arguing that he failed to exhaust his administrative remedies because his FOIA request did not “reasonably describe[]” the records sought, as the statute requires. 5 U.S.C. § 552(a)(3)(A).
The NSA responded to Shapiro’s FOIA request in a letter dated December 31, 2013. It informed him that “[t]o the extent that you are seeking informational documents regarding Nelson Mandela,” the agency had previously released one Cryp-tolog document
1
from 1996 that could be found at a particular web address. Def. NSA’s Mot. Summ. J. Ex. B, at 1. Yet “[t]o the extent that you are seeking
intelligence information
on Nelson Mandela,” the NSA invoked a so-called Glomar response, meaning that- it refused even to confirm or deny the “existence or nonexistence” of such records. Id. (emphasis added). According to the NSA, this fact falls within FOIA Exemptions One and Three, because it has been properly classified pursuant to an executive order and is protected from disclosure by three federal
II. Legal Standards
Congress created FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” ACLU v. U.S. Dep’t of Justice,
“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol,
When evaluating a motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Fed. R. Civ. P. 12(b)(6); Elec. Privacy Info. Ctr. v. NSA,
III. Analysis
A. The CIA’s Motion to Dismiss
In its initial letter refusing to process Shapiro’s FOIA request, the CIA explained that a search for all documents mentioning Nelson Mandela would be “unreasonably burdensome” and that Shapiro had not exhausted his administrative remedies because his request did not “reasonably describe” the records sought. CIA’s Mot. Dismiss Ex. B, at 1. The agency has now retreated from the first argument— and disclaimed any effort to estimate how time-consuming the search would be — because its “position is not based on the anticipated result of searches or the volume of potentially responsive records.” CIA’s Mot. Dismiss 4. Rather, the CIA argues that Shapiro’s “request, on its face, is deficient.” Id.
The Court disagrees, finding that Shapiro’s request “reasonably describes” the records he seeks. 5 U.S.C. § 552(a)(3)(A). “The linchpin inquiry” on this score is “whether ‘the agency is able to determine precisely what records are being requested.’ ” Tereshchuk v. Bureau of Prisons,
The CIA cites a number of FOIA requests that were held not to reasonably describe the records sought. But in most of those cases, the reviewing agency’s task was anything but ministerial. In Sack v. CIA,
The CIA insists that Shapiro’s request does not reasonably describe the relevant records because it would not “enable[ ] a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort.” Dale v. IRS,
But as the D.C. Circuit has noted, “the number.of records requested appears to be irrelevant to the determination of whether they have been ‘reasonably described.’” Yeager,
Whether Shapiro’s request would require the CIA to expend an unreasonable amount of effort cannot be determined from his request alone, “on its face.” CIA’s Reply Supp. Mot. Dismiss 4. Although an agency need not comply with unreasonably burdensome FOIA requests, it “bears the burden to ‘provide [a] sufficient explanation as to why such a search
The CIA has done nothing of the sort here. In fact, it has overtly declined to file such a declaration, simply asserting in its legal briefing that the documents Shapiro requests could not be “locate[d] ... with a reasonable amount of effort.” CIA’s Reply Supp. Mot. Dismiss 2, 4. Because the scope of Shapiro’s request is clear, this is plainly an argument that a satisfactory response would be too burdensome. But as the case law teaches, “[t]his Court will not find a search unduly burdensome on conclusory statements alone.” Hall v. CIA,
The CIA worries that “[a]gency employees could not with certainty determine that an office, database, or archival file series does not contain a record that ‘mentions’ Mandela.” CIA’s Reply Supp. Mot. Dismiss 5. FOIA does not require perfection, however. “There is no requirement that an agency search every record system” in the face of likely futility. Oglesby v. U.S. Dep’t of Army,
B. The NSA’s Motion for Summary Judgment and Shapiro’s Cross-Motion
i. The Scope of Shapiro’s FOIA Request
Before addressing the sufficiency of the NSA’s Glomar response, the Court will resolve a preliminary disagreement as to what records were encompassed within Shapiro’s request. The NSA takes the position that Shapiro’s request sought only
“intelligence records
on Mr. Mandela or records that would otherwise be used for an
intelligence
purpose.” NSA’s Combined Reply Supp. Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J. (“NSA’s Reply”) 9 (emphases added). Accordingly, the agency justified its Glomar response only with respect to such records. The NSA further accuses Shapiro of using his cross-motion for summary judgment to “seek[ ] a new
Shapiro has the better view. The operative text of his request to the NSA, as distinguished from any illustrative commentary included in the request, was identical to that submitted to the CIA: “I request disclosure of any and all records that were prepared, received, transmitted, collected and/or maintained by the [agencies] mentioning the deceased individual Rolihlahla Mandela (aka Nelson Mandela, aka Madiba, aka Tata).” Compl. Ex. 3, at 1; Ex. 4, at 1. As discussed above, this is plainly a request for “any and all” records in the NSA’s possession that “mention[ ]” Nelson Mandela or his three listed aliases. The Court will assess the adequacy of the NSA’s Glomar response accordingly,
ii. The Sufficiency of the NSA’s Glomar Response
Recipients of FOIA requests “may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[] FOIA exception.” Wolf v. CIA,
Exemption One protects records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The NSA points to “Classified National Security Information,” Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), as authorizing its Glomar response here.
Exemption Three specifies that generally applicable FOIA obligations do not apply to information that is “specifically exempted from disclosure by [federal] statute,” if that statute either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). The NSA rounds out its belt-and-suspenders approach by citing three alleged statutory privileges. First, the National Security Agency Act of 1959 (as amended) provides that “nothing in this chapter or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof.” 50 U.S.C. § 3605(a). Second, another federal statute criminalizes the unauthorized disclosure of any classified information “concerning the communication intelligence activities of the United States or any foreign government” or “obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes.” 18 U.S.C. § 798(a)(3)-(4). And third, the Director of National Intelligence is statutorily authorized to “protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(l).
The NSA appended to its motion a declaration from David J. Sherman, the agency’s Associate Director for Policy and Records. See Decl. of David J. Sherman, NSA’s Mot. Summ. J. Ex. 1 (“Sherman Deck”). Sherman sought to illustrate the
“[W]hen a Glomar response touches upon issues of national security”&emdash; as is the case here&emdash;“courts must give agency decisions substantial deference,” Competitive Enter. Inst, v. NSA,
For part Shapiro’s FOIA request, that test is easily satisfied. The Court must accord substantial weight to the Sherman Declaration, which provides “specific detail” for why the information withheld&emdash;whether the NSA possesses in- telligence-related records mentioning Mandela&emdash;“logically falls within the claimed exemption.” ACLU I,
But Shapiro’s request was not so cab-ined. He explicitly sought “any and all records ... mentioning” Mandela. Compl. Ex. 4, at 1. Likely anticipating the Court’s interpretation today, the NSA expressed its “willing[ness] ... to address” a hypothetical FOIA request “seeking non-intelligence records” that mention Mandela, even “without the need for Plaintiff to file a new FOIA request.” NSA’s Reply 9 n.6. Because the agency misinterpreted Shapiro’s original request, the Court finds that the NSA is statutorily obligated to address his outstanding request for all records in the NSA’s possession that do not reveal whether Nelson Mandela was a SIGINT target or of SIGINT interest to the NSA.
iii. Whether the NSA Has Already Acknowledged the Information Subject to Its Gbmar Response
Finally, Shapiro argues that the NSA’s Glomar response — -as far as it went — was improper because the agency has already “officially acknowledged the existence of responsive records”: ones “demonstrating] ... the NSA’s foreign intelligence interest in Mr. Mandela.” Pl.’s Opp’n 10-11. Upon review of these documents, the Court disagrees. It will therefore grant in part the NSA’s motion for summary judgment and deny Shapiro’s cross-motion.
Shapiro is correct that an agency may not invoke a FOIA exemption when it has already “ma[de] an ‘official and documented’ disclosure of the information being sought.” Frugone v. CIA,
Shapiro cites (and attaches) six sets of previously released documents that, “[t]aken collectively,” he says, “demonstrate that acknowledging the NSA’s foreign intelligence interest in Mr. Mandela would not reveal anything that has not already been revealed,” Pl.’s Reply 10:
(1) documents released by the Department of Defense as part of this FOIA suit, including “memoranda sent to the director of the [NSA] describing in some detail Mr. Mandela’s activities,” Pl.’s Reply 7; id. Ex. 1;
(2) the Intellipedia entry for Mandela, released by the Office of Naval Intelligence in response to another of Shapiro’s FOIA requests, Pl.’s Reply 8; id. Ex. 2;
(3) “a document posted on the NSA’s own website containing] a brief synopsis of a meeting between Mr. Mandela and then-South African President de Klerk,” Pl.’s Reply 8;
(4) “numerous ‘National Intelligence Daily’ documents discussing Mandela,” which “bear[ ] the seal of the National Security Agency,” Id.; id. Exs. 3-9;
(5) “a Special National Intelligence Estimate ... prepared by the CIA with contributions from the NSA,” which “reveals extensive interest in Mandela by the United States intelligence community,” Pl.’s Reply 9; id. Ex. 10; and
(6) an official “history of the Joint Chiefs of Staff ... demonstrating] United States intelligence agencies’ surveillance of the South African government,” Pl.’s Reply 10; id. Ex. 11.
These documents may well demonstrate that the NSA was, at some level, “interested” in Nelson Mandela’s activities as a prominent dissident and high-ranking political leader. But they do not divulge whether the NSA “has or has not targeted Nelson Mandela or considered him to be of SIGINT interest.” NSA’s Reply 11. Shapiro “bears the burden” of “establishing],” Pub. Citizen,
In sum, based on the previously disclosed documents Shapiro has adduced, the Court declines to hold that the precise fact of whether Nelson Mandela was a SIGINT target or otherwise of SIGINT interest has been officially acknowledged. Neither the NSA nor a parent entity has “made admissions that would waive [the agency’s] right to assert a Glomar response here.” Competitive Enter. Inst.,
IV. Conclusion
For the foregoing reasons, the Court will deny the CIA’s motion to dismiss, grant in part the NSA’s motion for summary judgment, and deny Shapiro’s cross-motion for summary judgment. 7 A separate Order accompanies this Memorandum Opinion.
Notes
. Cryptolog, one of the NSA's “longest-lived technical publications,” was “designed for the interchange of ideas on technical subjects in what was originally referred to as the Operations side of NSA.” The National Security Agency's Release of All Issues of Its Technical Periodical, “Cryptolog”, National Security Agency, https ://www.nsa. gov/public_info/_ files/cryptologs/faqs_for_ciyptolog_release.pdf (last visited Mar. 15, 2016).
. For example, if a document from 1998 referred simply to "the current President of South Africa,” that record would "mention[]” Mandela, even if it did not use his name, because its allusion to him would be immediately apparent and unmistakable.
. See, e.g., Freedom Watch v. CIA,
. It iis therefore unnecessary to address the NSA’s three other suggested bases for the applicability of Exemptions One and Three.
. The "official acknowledgment” principle also applies where past disclosures have been "made by an authorized representative of the agency’s parent” entity, but not by "another, unrelated agency.” ACLU II,
. Most references to Mandela were fairly prosaic and reportorial. See, e.g., Pl.’s Opp’n Ex. 1, at 12 (“South African President Mandela recently toured the Persian Gulf states in which South Africa has recently opened diplomatic missions.”); id. Ex. 6, at 2 ("A poll of white South Africans last month indicates that whites’ esteem for Mandela has decreased since his release from prison.”); id. Ex. 8, at 3 ("Mandela heads for Europe tomorrow to visit France, the UK, West Germany, Italy, Belgium, Ireland, and Switzerland.”). Those containing some element of assessment or prediction were not self-evidently facilitated by the NSA’s SIGINT program. See, e.g., id. Ex. 10, at 12 (”[G]iven the immense domestic and international popularity of Mandela, he poses a real threat to the government and it is unlikely, in our judgment, that he will be released over the next two years.”).
. Because neither the CIA nor the NSA has begun processing Shapiro’s request, the Court need not address his other allegations — that those agencies violated FOIA by failing to grant his requests for expedited processing and a fee waiver. Compl. ¶¶ 54, 57.