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Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 1 of 41

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT,


INC.,

Plaintiff,

v. No. 1:17-cv-01000-CKK

U.S. NATIONAL SECURITY AGENCY, et


al.,

Defendants.

DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT AND


OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Defendant the U.S. National Security Agency (“NSA”) respectfully cross-moves for
summary judgment pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 7. The
reasons for this motion are set forth in the attached Memorandum of Points and Authorities in
Support of Defendants’ Cross-Motion for Summary Judgment and Opposition to Plaintiff’s
Motion for Summary Judgment; Statement of Material Facts as to Which There Is No Genuine
Issue; and the Declaration of Steven E. Thompson. A proposed order is also attached.
Respectfully submitted this 9th day of August, 2018,

CHAD A. READLER
Acting Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Anjali Motgi______________________


ANJALI MOTGI
Trial Attorney (TX Bar 24092864)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20530
(202) 305-0879 (tel.) | (202) 616-8470 (fax)
Anjali.Motgi@usdoj.gov
Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 2 of 41

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT,


INC.,

Plaintiff,

v. No. 1:17-cv-01000-CKK

U.S. NATIONAL SECURITY AGENCY, et


al.,

Defendants.

DEFENDANT’S STATEMENT OF MATERIAL FACTS


AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Civil Rule 7(h)(1), Defendant the U.S. National Security Agency

(“NSA”) respectfully submits the following statement of material facts as to which there is no

genuine issue:

I. Plaintiff’s Freedom of Information Act (“FOIA”) Request to the NSA

1. By fax dated April 21, 2017, Plaintiff the Protect Democracy Project (“PDP” or “Plaintiff”)

submitted a FOIA request to the NSA seeking the following:

a. All records, including but not limited to emails, notes, and


memoranda, reflecting, discussing, or otherwise relating to
communications between [NSA] and the Executive Office of the
President regarding contacts between individuals connected with the
Russian government and individuals connected with the Trump
campaign or the Trump administration, and/or Russian involvement
with, or attempts to influence or interfere with, the national election
of November 2016.

b. All records, including but not limited to emails, notes, and


memoranda, reflecting, discussing, or otherwise relating to talking
points or other communications with the public or the media
regarding contacts between individuals connected with the Russian
government and individuals connected with the Trump campaign or

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the Trump administration, and/or Russian involvement with, or


attempts to influence or interfere with, the national election of
November 2016.

c. All records, including but not limited to emails, notes, and


memoranda, reflecting, discussing, or otherwise relating to
communications between [NSA] and the House Permanent Select
Committee on Intelligence (HPSCI) and/or the Senate Select
Committee on Intelligence (SSCI), and/or Representative Devin
Nunes, Representative Adam Schiff, Senator Richard Burr, Senator
Mark Warner, and/or any other members or staff of HPSCI or SSCI,
regarding contacts between individuals connected with the Russian
government and individuals connected with the Trump campaign or
the Trump administration, and/or Russian involvement with, or
attempts to influence or interfere with, the national election of
November 2016.

d. All calendars, agendas, manifests, schedules, notes, lists of


attendees, or other records reflecting or relating to meetings
regarding contacts between individuals connected with the Russian
government and individuals connected with the Trump campaign or
the Trump administration, and/or Russian involvement with, or
attempts to influence or interfere with, the national election of
November 2016.

e. In addition to the records requested above, we also request records


describing the processing of this request, including records
sufficient to identify search terms used and locations and custodians
searched, and any tracking sheets used to track the processing of this
request. If your agency uses FOIA questionnaires or certifications
completed by individual custodians or components to determine
whether they possess responsive materials or to describe how they
conducted searches, we also request any such records prepared in
connection with the processing of this request.

The timeframe for this request is July 1, 2016 through the date that searches
are conducted for records responsive to this FOIA request.

Declaration of Steven E. Thompson (“Thompson Decl.”) ¶¶ 14-15 & Ex. A.

2. The request also sought a waiver or reduction in fees, on the basis that the information was

likely to contribute to the public understanding of governmental activities. Thompson

Decl. ¶ 16.

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3. By letter dated May 1, 2017, NSA acknowledged receipt of this FOIA request, which it

had assigned Case Number 101419. See Thompson Decl. ¶ 17 & Ex. B; see generally

Compl., ECF No. 1.

4. On May 24, 2017, Plaintiff filed the instant lawsuit. See Thompson Decl. ¶ 18.

5. In August 2017, Plaintiff amended its Complaint, adding as defendants the Department of

Justice (“DOJ”), and the Office of the Director of National Intelligence (“ODNI”), to which

PDP had sent “substantially similar FOIA requests.” See Thompson Decl. ¶ 18. In June

2018, Plaintiff voluntarily dismissed DOJ and ODNI as defendants. See Thompson Decl.

¶ 18; Order, ECF No. 21. At this time, NSA is the only remaining defendant in this action.

6. On October 25, 2017, the parties filed a Joint Status Report, in which they agreed to narrow

Plaintiff’s original FOIA request. See Thompson Decl. ¶ 19; ECF No. 16. The Court

issued a scheduling order for the narrowed request on December 4, 2017. See Thompson

Decl. ¶ 19; Minute Order of December 4, 2017.

7. On December 20, 2017, NSA made its first production of responsive records, producing

one page of responsive material. See Thompson Decl. ¶ 19 & Ex. C.

8. In early 2018, Plaintiff proposed a further narrowing of its FOIA request, seeking the

following records from NSA:

Any memoranda (and, as noted below, associated documents)


written by senior NSA officials documenting a conversation
between White House personnel, including the President, and NSA
senior officials, including Adm. Rogers, in which the White House
asked the NSA to publicly dispute any suggestion of collusion
between Russia and the Trump campaign.

Citing news reports, Plaintiff elaborated that its request was for NSA to:

Promptly locate and process any [such] records documenting or


referencing any such phone call between the President (or senior
advisers) and Adm. Rogers (or senior advisers). This includes, but

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is not limited to, the above-referenced memoranda; any


communications forwarding, responding to, or discussing that
memoranda; or any other document describing any conversations in
which White House officials asked NSA officials to publicly dispute
the suggestion of any collusion between Russia or Russian nationals
and the Trump campaign.

Thompson Decl. ¶ 20.

9. On March 20, 2018, NSA agreed to this third iteration of Plaintiff’s FOIA request

(hereinafter “Amended Request”), and provided a final response to the Amended Request.

In that response, NSA provided a Glomar response, declining to confirm or deny the

existence of responsive records pursuant to Exemption 3 of the FOIA. See Thompson Decl.

¶ 21 & Ex. D.

10. Steven E. Thompson is the Chief of Policy, Information, Performance, and Exports for the

NSA and, as such, he is responsible for oversight of NSA’s Freedom of Information

Act/Privacy Act Office. This office has primary responsibility for responding to requests

for NSA records made pursuant to the FOIA. Thompson Decl. ¶ 1.

11. Mr. Thompson is also a TOP SECRET classification authority pursuant to Executive Order

(“E.O.”) 13,526, which includes intelligence activities, sources, and methods, as well as

covert actions and cryptology. Thompson Decl. ¶ 2.

12. The Thompson Declaration explains that NSA’s response to Plaintiff’s FOIA request,

known as a Glomar response, is proper under Exemption 3 of the FOIA. Thompson Decl.

¶ 26.

13. The Thompson Declaration explains that Exemption 3 permits withholding of information

that is specifically exempted from disclosure by another statute, if the other statute leaves

no discretion as to its applicability. Thompson Decl. ¶ 27.

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14. The Thompson Declaration explains that the existence (or not) of responsive records is

protected by Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605.

This statute protects from disclosure “any information with respect to the activities” of the

National Security Agency. The Thompson Declaration explains that this statutory

protection is very broad, and does not require the agency to demonstrate possible harm to

national security resulting from disclosure. It is also a statutory privilege unique to NSA.

Thompson Decl. ¶¶ 28-29.

15. The Thompson Declaration explains that PDP’s Amended Request seeks documentation

concerning discussions between White House personnel and NSA senior officials on the

topic of Russian involvement with the presidential election of 2016; in other words, the

request seeks documentation of specific discussions among specific individuals at NSA

and the White House, concerning a specific topic. Thompson Decl. ¶ 22.

16. The Thompson Declaration explains that, at a fundamental level, public confirmation or

denial of a specific discussion among senior NSA officials and the White House on a

particular topic would compromise one of NSA’s core functions (provision of information

to government officials) and activities (the nature of its signal intelligence (“SIGINT”)).

Thompson Decl. ¶ 25.

17. First, the Thompson Declaration explains that NSA’s provision of information to senior

government officials would be compromised if NSA were forced to disclose, as a matter

of course, whether or not it advised or spoke to a specific governmental principal during a

particular time frame or on a particular date, concerning a particular topic. Thompson

Decl. ¶ 25.

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18. Second, the Thompson Declaration explains that if an individual – including an adversary

– wanted to confirm a particular national security event, he or she could inquire via FOIA

request as to whether NSA discussed that event with specific members of the U.S.

government during a particular time period. Depending on how such an inquiry was

phrased, and depending on when and how NSA responded, that individual could then

obtain further clues as to the targets of NSA’s intelligence collection, and as to the possible

methods that could have been or are being employed in the collection of foreign

intelligence. Thompson Decl. ¶ 25.

19. The Thompson Declaration explains that this conclusion is underscored by the fact that

NSA is a single-source intelligence agency focusing its intelligence efforts on SIGINT

collection, and one of its primary roles is to provide intelligence information to a variety

of principals within the United States government. Not just any function, but a core

function of the agency would therefore be undermined were it to disclose the existence or

non-existence of responsive records. Thompson Decl. ¶ 30.

20. The Thompson Declaration explains that while NSA can acknowledge that, as part of its

standard activities, it regularly briefs personnel at the White House and others in the

government on intelligence matters, any details concerning those discussions – including

whether or not a particular discussion on a particular topic took place – are protected from

disclosure pursuant to Section 6 of the National Security Agency Act. Thompson Decl.

¶ 31.

21. The Thompson Declaration explains that this concern – exposing critical details concerning

the content or existence of specific discussions between NSA and senior government

officials – encompasses all of Plaintiff’s FOIA request. Thompson Decl. ¶ 31.

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22. The Thompson Declaration explains that, if this type of information could not remain

protected pursuant to NSA’s own statute, NSA could be forced to confirm or deny (for

example), whether senior NSA officials spoke to the Secretary of State in the days leading

up to a treaty signing with a particular country or to the Secretary of Defense in advance

of a specific military operation – thereby confirming the existence or status of those treaties

and operations. Thompson Decl. ¶ 31.

23. The Thompson Declaration also explains that the topic of the conversation or conversations

that Plaintiff hopes to uncover is one about which NSA has specifically and repeated

declined to publicly provide details. Thompson Decl. ¶ 32.

24. The Thompson Declaration explains that the specific official statements of Admiral Rogers

– who is referenced in Plaintiff’s request – also highlight the protected nature of this

information; for Admiral Rogers repeatedly stated publicly that he was “not going to

discuss the specifics of conversations [that he had] with the President of the United States.”

Indeed, Admiral Rogers was asked about the existence or non-existence of materials

similar in description to those which Plaintiff seeks here, and he emphasized that he would

not do so. Thompson Decl. ¶ 35.

25. Thus, the Thompson Declaration explains that NSA’s Glomar response is justified under

Exemption 3 of the FOIA. The Thompson Declaration explains that the National Security

Agency Act was enacted by Congress to protect the fragile nature of NSA’s SIGINT

efforts, which would be jeopardized if NSA confirmed or denied the existence or non-

existence of any records sought by Plaintiff. Thompson Decl. ¶¶ 11, 35.

26. The Thompson Declaration explains that NSA’s Glomar response is not undermined by

media speculation and non-authoritative reports – including those attributed to unnamed or

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anonymous sources – which do not constitute official disclosures or acknowledgements on

behalf of NSA and do not serve to confirm or deny the existence of the information

requested by Plaintiff. Thompson Decl. ¶ 34.

Respectfully submitted this 9th day of August, 2018,

CHAD A. READLER
Acting Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Anjali Motgi__________________


ANJALI MOTGI
Trial Attorney (TX Bar 24092864)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20530
(202) 305-0879 (tel.)
(202) 616-8470 (fax)
Anjali.Motgi@usdoj.gov

Counsel for Defendants

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Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 10 of 41

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT,


INC.,

Plaintiff,

v. No. 1:17-cv-01000-CKK

U.S. NATIONAL SECURITY AGENCY, et


al.,

Defendants.

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES


IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT
AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 11 of 41

TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... 1

BACKGROUND ........................................................................................................................... 1

LEGAL STANDARD.................................................................................................................... 5

ARGUMENT ................................................................................................................................. 6

I. NSA PROPERLY DECLINED TO CONFIRM OR DENY THE EXISTENCE OF


ANY RECORDS RESPONSIVE TO PLAINTIFF’S REQUEST ................................. 7

a. NSA’s Exemption 3 Glomar Response is Proper Because the Information At


Issue is Protected by the National Security Agency Act. ...................................... 7

b. Plaintiff’s Challenges to NSA’s Glomar Response are Meritless. ...................... 13

II. PLAINTIFF’S OTHER ARGUMENTS ARE EQUALLY UNAVAILING................ 18

a. Director Rogers’ Public Statements Do Not Undermine NSA’s Glomar


Response. ............................................................................................................. 18

b. PDP Has Provided No Evidence of Government Wrongdoing or Bad Faith. ..... 21

c. NSA Is Not Withholding In Full and Need Not Segregate Any Materials. ......... 24

CONCLUSION ............................................................................................................................ 26

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Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 12 of 41

TABLE OF AUTHORITIES

Cases Page(s)
Am. Civil Liberties Union v. Cent. Intelligence Agency,
710 F.3d 422 (D.C. Cir. 2013) ................................................................................................ 19
Am. Civil Liberties Union v. Dep’t of Def.,
628 F.3d 612 (D.C. Cir. 2011) .................................................................................................. 7
Am. Civil Liberties Union v. NSA,
467 F.3d 590 (6th Cir. 2006) .................................................................................................. 22
Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983) ........................................................................................ 19, 21
Agility Pub. Warehousing Co. K.S.C., Inc. v. Nat’l Sec. Agency,
113 F. Supp. 3d 313 (D.D.C. 2015) ........................................................................................ 21
Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,
830 F.2d 331 (D.C. Cir. 1987) .................................................................................................. 8
Bartko v. Dep’t of Justice,
62 F. Supp. 3d 134 (D.D.C. 2014) .......................................................................................... 21
Brayton v. Office of the U.S. Trade Representative,
641 F.3d 521 (D.C. Cir. 2011) .................................................................................................. 5
Cent. Intelligence Agency v. Sims
471 U.S. 159 (1985) ................................................................................................................. 8
Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice,
746 F.3d 1082 (D.C. Cir. 2014) .............................................................................................. 19
Ctr. for Nat’l Sec. Studies v. Dep’t of Justice,
331 F.3d 918 (D.C. Cir. 2003) ................................................................................................ 17
Dean v. Dep’t of Justice,
87 F. Supp. 3d 318 (D.D.C. 2015) ............................................................................................ 5
DiBacco v. U.S. Army,
795 F.3d 178 (D.C. Cir. 2015) .................................................................................................. 8
Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency,
678 F.3d 926 (D.C. Cir. 2012) ........................................................................................ passim
Fed. Bureau of Investigations v. Abramson,
456 U.S. 615 (1982) ................................................................................................................. 5
Founding Church of Scientology v. Nat’l Sec. Agency,
610 F.2d 824 (D.C. Cir. 1979) ................................................................................................ 17

ii
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Frugone v. Cent. Intelligence Agency,


169 F.3d 772 (D.C. Cir. 1999) ................................................................................................ 21
Hayden v. Nat’l Sec. Agency,
608 F.2d 1381 (D.C. Cir. 1979) .................................................................................... 9, 15, 25
Int’l Counsel Bureau v. Cent. Intelligence Agency,
774 F. Supp. 2d 262 (D.D.C. 2011) ........................................................................................ 19
James Madison Project v. Dep’t of Justice,
No. 17-cv-00144 (APM), 2018 WL 294530 (D.D.C. 2018), appealed filed Jan. 25, 2018
(D.C. Cir.) ............................................................................................................................... 19
John Doe Agency v. John Doe Corp.,
493 U.S. 146 (1989) ................................................................................................................. 5
Larson v. Dep’t of State,
565 F.3d 857 (D.C. Cir. 2009) .................................................................................. 5, 9, 13, 25
Light v. Dep’t of Justice,
968 F. Supp. 2d 11 (D.D.C. 2013) ............................................................................................ 5
Linder v. Nat’l Sec. Agency,
94 F.3d 693 (D.C. Cir. 1996) .............................................................................................. 8, 22
Military Audit Project v. Casey,
656 F.2d 724 (D.C. Cir. 1981) ................................................................................................ 23
Miller v. Casey,
730 F.2d 773 (D.C. Cir. 1984) .................................................................................................. 5
Moore v. Cent. Intelligence Agency,
666 F.3d 1330 (D.C. Cir. 2011) .............................................................................................. 20

Nat’l Archives & Records Admin. v. Favish,


541 U.S. 157 (2004) ............................................................................................................... 23
Nat’l Sec. Counselors v. Cent. Intelligence Agency,
960 F. Supp. 2d 101 (D.D.C. 2013) ........................................................................................ 15
People for the Am. Way Found. v. Nat’l Sec. Agency,
462 F. Supp. 2d 21 (D.D.C. 2006) ................................................................................ 8, 10, 22
Phillippi v. Cent. Intelligence Agency,
546 F.2d 1009 (D.C. Cir. 1976) ................................................................................................ 6
Pub. Citizen v. Dep’t of State,
11 F.3d 198 (D.C. Cir. 1993) .................................................................................................. 20
Roth v. Dep’t of Justice,
642 F.3d 1161 (D.C. Cir. 2011) ........................................................................................ 22, 23

iii
Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 14 of 41

SafeCard Servs., Inc. v. Sec. & Exchange Comm’n,


926 F.2d 1197 (D.C. Cir. 1991) .............................................................................................. 23
Weissman v. Cent. Intelligence Agency,
565 F.2d 692 (D.C. Cir. 1977) ................................................................................................ 25
Wheeler v. Exec. Office of the U.S. Attys.,
No. 05-1133 (CKK), 2008 WL8451 (D.D.C. Jan. 17, 2008) ................................................. 25
Wolf v. Cent. Intelligence Agency,
473 F.3d 370 (D.C. Cir. 2007) ........................................................................................ passim

Statutes
5 U.S.C. § 552 ............................................................................................................................ 5, 8
50 U.S.C. § 3605 ...................................................................................................................... 8, 15

iv
Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 15 of 41

INTRODUCTION

This action arises from a Freedom of Information Act (“FOIA”) request that Plaintiff

Protect Democracy Project (“PDP”) submitted to the U.S. National Security Agency (“NSA”).

Plaintiff seeks an order requiring Defendants to produce records relating to an alleged internal

memo written by a senior NSA official that contemporaneously documents a conversation between

the President of the United States and Admiral Michael S. Rogers, then-director of NSA.

Complaint ¶ 11, ECF No. 1 (“Compl.”).

NSA has declined to confirm or deny the existence of responsive records – known as a

Glomar response – pursuant to Exemption 3 of the FOIA. Plaintiff has moved for summary

judgment, contending that this Glomar response is improper. See Plaintiff’s Motion for Summary

Judgment, ECF No. 23-1 (“Pl. Mot.”). NSA has now provided a sworn declaration describing in

detail its justifications for the inability to confirm the existence of responsive records without

disclosing statutorily protected information. See Declaration of Steven E. Thompson (“Thompson

Decl.”) (filed simultaneously herein). Because none of the arguments made in Plaintiff’s motion

for summary judgment undermines that justification, NSA is entitled to summary judgment.

BACKGROUND 1

By fax dated April 21, 2017, Plaintiff submitted a FOIA request to the NSA seeking the

following:

a. All records, including but not limited to emails, notes, and


memoranda, reflecting, discussing, or otherwise relating to
communications between the National Security Agency and the
Executive Office of the President regarding contacts between
individuals connected with the Russian government and individuals

1
As will be explained further herein, Defendant does not believe that any of the Factual
Issues discussed at pages 2-8 of Plaintiff’s summary judgment motion are material to the question
of the propriety of NSA’s Glomar response—the sole legal question before the Court. NSA
therefore takes no position as to their accuracy.
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connected with the Trump campaign or the Trump administration,


and/or Russian involvement with, or attempts to influence or
interfere with, the national election of November 2016.

b. All records, including but not limited to emails, notes, and


memoranda, reflecting, discussing, or otherwise relating to talking
points or other communications with the public or the media
regarding contacts between individuals connected with the Russian
government and individuals connected with the Trump campaign or
the Trump administration, and/or Russian involvement with, or
attempts to influence or interfere with, the national election of
November 2016.

c. All records, including but not limited to emails, notes, and


memoranda, reflecting, discussing, or otherwise relating to
communications between the National Security Agency and the
House Permanent Select Committee on Intelligence (HPSCI) and/or
the Senate Select Committee on Intelligence (SSCI), and/or
Representative Devin Nunes, Representative Adam Schiff, Senator
Richard Burr, Senator Mark Warner, and/or any other members or
staff of HPSCI or SSCI, regarding contacts between individuals
connected with the Russian government and individuals connected
with the Trump campaign or the Trump administration, and/or
Russian involvement with, or attempts to influence or interfere with,
the national election of November 2016.

d. All calendars, agendas, manifests, schedules, notes, lists of


attendees, or other records reflecting or relating to meetings
regarding contacts between individuals connected with the Russian
government and individuals connected with the Trump campaign or
the Trump administration, and/or Russian involvement with, or
attempts to influence or interfere with, the national election of
November 2016.

e. In addition to the records requested above, we also request records


describing the processing of this request, including records
sufficient to identify search terms used and locations and custodians
searched, and any tracking sheets used to track the processing of this
request. If your agency uses FOIA questionnaires or certifications
completed by individual custodians or components to determine
whether they possess responsive materials or to describe how they
conducted searches, we also request any such records prepared in
connection with the processing of this request.

The timeframe for this request is July 1, 2016 through the date that searches
are conducted for records responsive to this FOIA request.

2
Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 17 of 41

Thompson Decl. ¶¶ 14-15 & Ex. A (“Original NSA Request”). The request also sought a waiver

or reduction in fees, on the basis that the information was likely to contribute to the public

understanding of governmental activities. Id. ¶ 16.

By letter dated May 1, 2017, NSA acknowledged receipt of this FOIA request, which it

had assigned Case Number 101419. See id. ¶ 17 & Ex. B. On May 24, 2017, Plaintiff filed the

instant lawsuit. See id. ¶ 18. In August 2017, Plaintiff amended its Complaint, adding as

defendants the Department of Justice (“DOJ”), and the Office of the Director of National

Intelligence (“ODNI”), to which PDP had sent “substantially similar FOIA requests.” See id. ¶ 18;

Amended Complaint, ECF No. 12. In June 2018, to permit summary judgment briefing against

NSA to commence, Plaintiff voluntarily dismissed DOJ and ODNI as defendants. See Thompson

Decl. ¶ 18; Joint Status Report of June 19, 2018, ECF No. 20. 2 At this time, NSA is the only

remaining defendant in this action.

On October 25, 2017, the parties filed a Joint Status Report, in which they agreed to narrow

Plaintiff’s original FOIA request. See Thompson Decl. ¶ 19; Joint Status Report of Oct. 25, 2017,

ECF No. 16. The Court issued a scheduling order for the narrowed request on December 4, 2017.

See Thompson Decl. ¶ 19; Minute Order of December 4, 2017. On December 20, 2017, pursuant

to that court-ordered schedule, NSA made its first production of responsive records, producing one

page of responsive material. See Thompson Decl. ¶ 19 & Ex. C.

In early 2018, Plaintiff proposed a further narrowing of its FOIA request, seeking the

following records from NSA:

2
At that time, ODNI had completed all productions of non-exempt responsive records. See
Joint Status Report of April 30, 2018, ¶ 6, ECF No. 19. DOJ had reviewed and determined to be
nonresponsive 13,500 potentially responsive items and had estimated that its production of non-
exempt responsive records would be complete by September 2018. Id. ¶¶ 9-10.
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Any memoranda (and, as noted below, associated documents)


written by senior NSA officials documenting a conversation
between White House personnel, including the President, and NSA
senior officials, including Adm. Rogers, in which the White House
asked the NSA to publicly dispute any suggestion of collusion
between Russia and the Trump campaign.

Citing news reports, Plaintiff elaborated that its request was for NSA to:

Promptly locate and process any [such] records documenting or


referencing any such phone call between the President (or senior
advisers) and Adm. Rogers (or senior advisers). This includes, but
is not limited to, the above-referenced memoranda; any
communications forwarding, responding to, or discussing that
memoranda; or any other document describing any conversations in
which White House officials asked NSA officials to publicly dispute
the suggestion of any collusion between Russia or Russian nationals
and the Trump campaign.

Thompson Decl. ¶ 20. On March 20, 2018, NSA agreed to this third iteration of Plaintiff’s FOIA

request (hereinafter “Amended Request”), and provided, by letter, a final response to the Amended

Request. In that letter, NSA provided a Glomar response, declining to confirm or deny the

existence of responsive records pursuant to Exemption 3 of the FOIA. See Thompson Decl. ¶ 21

& Ex. D.

The Court twice rejected Plaintiff’s efforts to bifurcate briefing on NSA’s Glomar response

from briefing on the responses of the two other agency defendants in this action. See Minute Order

of April 16, 2018; Minute Order of May 15, 2018. After Plaintiff agreed to dismiss ODNI and

DOJ as defendants with prejudice, the parties agreed to and proposed a summary judgment

schedule for NSA. See Joint Status Report of June 19, 2018, ECF No. 20. The Court adopted in

large part that schedule, see Minute Order of June 20, 2018, and PDP filed its motion for summary

judgment on June 25, 2018. See Pl. Mot., ECF No. 23-1. The propriety of NSA’s Glomar response

is the sole issue presented by Plaintiff’s motion for summary judgment, and by this cross-motion

for summary judgment and opposition to Plaintiff’s motion.

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LEGAL STANDARD

“FOIA cases are typically and appropriately decided on motions for summary judgment.”

Dean v. DOJ, 87 F. Supp. 3d 318, 320 (D.D.C. 2015) (citation omitted); accord Brayton v. Office

of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011) (“[T]he vast majority of

FOIA cases can be resolved on summary judgment.”). A court reviews an agency’s response to a

FOIA request de novo. See 5 U.S.C. § 552(a)(4)(B). Generally, “[t]he defendant in a FOIA case

must show that its search for responsive records was adequate, that any exemptions claimed

actually apply, and that any reasonably segregable non-exempt parts of records have been

disclosed after redaction of exempt information.” Light v. DOJ, 968 F. Supp. 2d 11, 23 (D.D.C.

2013) (citation omitted).

FOIA represents a delicate balance “between the right of the public to know and the need

of the Government to keep information in confidence.” John Doe Agency v. John Doe Corp., 493

U.S. 146, 152 (1989) (citation omitted). In drafting the statute, Congress recognized “that

legitimate governmental and private interests could be harmed by release of certain types of

information,” and therefore “provided nine specific exemptions under which disclosure could be

refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982). Although these “exemptions are to be

narrowly construed,” id. at 630, courts must still give them “meaningful reach and application.”

John Doe, 493 U.S. at 152. “An agency that has withheld responsive documents pursuant to a

FOIA exemption can carry its burden to prove the applicability of the claimed exemption by

affidavit.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009). “[S]ummary judgment

is warranted on the basis of agency affidavits when the affidavits describe the justifications for

nondisclosure with reasonably specific detail and are not controverted by either contrary evidence

in the record nor by evidence of agency bad faith.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir.

2007) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). This is not a high bar:
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“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears

‘logical’ or ‘plausible.’” Id. at 374-75 (citation omitted).

In some instances, an agency “may refuse to confirm or deny the existence of records where

to answer . . . would cause harm cognizable under an FOIA exception.” Id. at 374 (citation

omitted). “Such an agency response is known as a Glomar response and is proper if the fact of the

existence or nonexistence of agency records falls within a FOIA exemption.” 3 Id. To justify a

Glomar response, “[t]he agency must demonstrate that acknowledging the mere existence of

responsive records would disclose exempt information.” Elec. Privacy Info. Ctr. (“EPIC”) v. NSA,

678 F.3d 926, 931 (D.C. Cir. 2012) (citing Wolf, 473 F.3d at 374). But in doing so, the agency’s

explanatory burden is not demanding, and the standard is, ultimately, no different than in the

typical FOIA case. Wolf, 473 F.3d at 374-75.

ARGUMENT

Plaintiff has received a final response from NSA and an explanation from NSA as to why

it cannot confirm or deny the existence of records responsive to Plaintiff’s Amended Request. The

Agency’s explanations have now been formalized in a reasonably specific affidavit from an NSA

official, which is entitled to a presumption of good faith. Additionally, none of the arguments

raised in Plaintiff’s motion for summary judgment establishes that NSA’s invocation of Exemption

3 to protect the existence or non-existence of records responsive to Plaintiff’s Amended Request

was unlawful. Defendant is therefore entitled to summary judgment.

3
The term “Glomar” comes from the case of Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir.
1976), in which the D.C. Circuit upheld the CIA’s refusal to confirm or deny the existence of
records in response to a FOIA request relating to a ship called the Hughes Glomar Explorer, which
was a private vessel that was involved in a (then-classified) CIA operation to recover a sunken
Soviet submarine from the floor of the Pacific Ocean.
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I. NSA PROPERLY DECLINED TO CONFIRM OR DENY THE EXISTENCE


OF ANY RECORDS RESPONSIVE TO PLAINTIFF’S REQUEST

When faced with a FOIA request for records, the existence or non-existence of which

would disclose statutorily protected information, agencies routinely refuse to either confirm or

deny the existence of any records—that is, agencies issue a Glomar response. This is true even if

no responsive records exist; to be credible and effective, agencies must use the Glomar response

in all similar cases, regardless of whether responsive records exist, because if agencies were to

invoke a Glomar response only when it actually possessed responsive records, the Glomar

response would be interpreted as an admission that responsive records exist, thereby undermining

its effectiveness.

Plaintiff’s request seeks records pertaining to a communication between former NSA

Director Admiral Rogers or any other NSA official and President Trump or any other White House

official on the subject of Russian collusion with the Trump campaign. See Amended Request. In

this case, both an affirmative and negative response to the question whether responsive records

exist would reveal, at a minimum, statutorily protected information concerning NSA’s core

mission, functions, and activities; for this reason, NSA has invoked its authority to issue a Glomar

response to Plaintiff’s request, pursuant to FOIA Exemption 3 and the National Security Agency

Act.

a. NSA’s Exemption 3 Glomar Response Is Proper Because the Information At Issue


Is Protected By The National Security Agency Act.

FOIA Exemption 3 incorporates into FOIA “the protections of other shield statutes,” Am.

Civil Liberties Union (“ACLU”) v. Dep’t of Def., 628 F.3d 612, 617-18 (D.C. Cir. 2011), by

excluding from the purview of FOIA “‘matters’ that are ‘specifically exempted from disclosure by

statute’ if that statute ‘requires that the matters be withheld from the public in such a manner as to

7
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leave no discretion on the issue’ or ‘establishes particular criteria for withholding or refers to

particular types of matters to be withheld.’” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir.

2015) (quoting 5 U.S.C. § 552(b)(3)). The “purpose of Exemption 3 [is] to assure that Congress,

not the agency, makes the basic nondisclosure decision.” Ass’n of Retired R.R. Workers, Inc. v.

U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987); see also id. (“[T]he policing role assigned

to the courts in a[n Exemption 3] case is reduced.”). Following the Supreme Court’s decision in

Central Intelligence Agency v. Sims, courts apply a two-pronged inquiry when evaluating an

agency’s invocation of Exemption 3. See 471 U.S. 159, 167-68 (1985). First, the court must

determine whether the statute qualifies as an exempting statute under Exemption 3. Second, the

court decides whether the withheld material falls within the scope of that exempting statute. See

id.

Here, the statute on which NSA relies to justify its invocation of Exemption 3 is the

National Security Agency Act of 1959 (“NSA Act”), 50 U.S.C. § 3605, which confers a special

statutory privilege on NSA and “is the broadest of” statutes that have been held to qualify as

Exemption 3 statutes in cases involving NSA. People for the Am. Way Found. v. NSA, 462 F.

Supp. 2d 21, 28 (D.D.C. 2006). Section 6 of the Act 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. As the Thompson Declaration explains, this Act reflects Congress’s “finding that

disclosure of [any] information relating to NSA activities is potentially harmful.” Thompson Decl.

¶ 29. For this reason, courts have strictly construed the statute. See Linder v. NSA, 94 F.3d 693,

696 (D.C. Cir. 1996) (“[T]he plain language of the statute . . . states unequivocally that ‘nothing

in this Act or any other law shall be construed to require the disclosure,’” and this “statutory

8
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language that cannot be confined.” (citation omitted)). Consistent with this strict approach to the

statute, courts have held that the “any other law” language necessarily encompasses the FOIA.

See, e.g., Larson, 565 F.3d at 868 (“Section 6 qualifies as an Exemption 3 statute, and provides

absolute protection. The NSA . . . need only demonstrate that the withheld information relates to

the organization of the NSA or any function or activities of the agency.” (citations omitted));

Hayden v. NSA, 608 F.2d 1381, 1390 (D.C. Cir. 1979). 4

Courts have also held that this provision of the Act is absolute and does not require NSA

to demonstrate specific harm to national security when invoking the statute as a protection from

disclosure, or to demonstrate that the information protected is or should be classified; to invoke

the exemption, NSA must demonstrate only that the information the FOIA requester seeks pertains

to NSA’s functions and activities and therefore falls within the scope of Section 6. See Larson,

565 F.3d at 868; Hayden, 608 F.2d at 1390 (“The factual showing required here for NSA to satisfy

Exemption 3 is by nature less than for Exemption 1. In its affidavits, the Agency must show

specifically and clearly that the requested materials fall into the category of the exemption . . . that

all requested documents concern[] a specific NSA activity . . . [or that] disclosure even of

descriptions and dates of the material would reveal information integrally related to this NSA

activity. . . . A specific showing of potential harm to national security, while necessary for

Exemption 1, is irrelevant to the language of [the statute] . . . [because] Congress has already, in

enacting the statute, decided that disclosure of NSA activities is potentially harmful.”). And,

“[b]ecause Section 6 of the National Security Agency Act is a statute qualifying under Exemption

3, the only question is whether the withheld material satisfies the criteria of the exemption statute,

4
Plaintiff does not dispute that Section 6 of the National Security Agency Act is a valid
“withholding statute” for purposes of FOIA Exemption 3. See Pl. Mot. at 14 n.7.
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i.e., whether acknowledging the existence or nonexistence of the requested material would reveal

a function or an activity of the NSA.” EPIC, 678 F.3d at 931. Importantly, the D.C. Circuit has

previously affirmed the invocation of Exemption 3 alone in support of a Glomar response. See id.

at 932 (holding that, because “NSA’s affidavit describes which functions and activities would be

implicated by disclosure, as well as how acknowledging the existence or nonexistence of requested

records would reveal those functions or activities,” Glomar response under Exemption 3 – relying

on Section 6 of the National Security Agency Act – was proper).

Here, the fact of the existence or non-existence of records responsive to PDP’s request falls

squarely within the unique statutory protections of Section 6. Plaintiff has asked for

documentation concerning an alleged phone call between specific U.S. government principals

(White House officials, including the President) and NSA officials (including, specifically, former

NSA Director Admiral Rogers) on a specific topic. Thompson Decl. ¶ 28. The information thus

directly concerns “[o]ne of NSA’s primary functions” – viz., “to provide intelligence information

to a variety of principals within the United States government.” Id. ¶ 30. The National Security

Agency Act therefore prohibits disclosure of this information, and the Agency’s Glomar response

is proper under Exemption 3. See, e.g., People for the Am. Way Found., 462 F. Supp. 2d at 29-30

(noting that Exemption 3 under Section 6 was proper where NSA has averred that requested

information concerns NSA’s core activities).

As the Thompson Declaration explains, “[w]hile NSA can freely acknowledge that, as part

of its standard activities, it regularly briefs the White House (and other governmental organizations

and officials) on intelligence matters, any details concerning those discussions are protected from

disclosure pursuant to Section 6, to include whether or not specific conversations concerning

specific topics among named individuals have even taken place.” Thompson Decl. ¶ 31. In this

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case, Plaintiff seeks all information concerning an alleged discussion between the White House

and NSA “that centered on a particular topic: Russian governmental activities with respect to the

2016 election.” Id. As Mr. Thompson explains, “[t]o acknowledge that such a discussion did, or

did not, take place is to expose [critical] details concerning the content (or lack thereof) of specific

discussions between NSA and the principals to which it provides regular advice and intelligence.”

Id. The FOIA request here provides context, timing, participants, and topic of a particular alleged

discussion; accordingly, confirming or denying the existence of responsive records would confirm

or deny that a particular conversation took place between the named individuals on the issue and

during the time period specified by the request. Id. The disclosure would reveal “several details

properly protected from disclosure pursuant to Section 6,” including “that NSA possessed

intelligence concerning a specific topic; that the White House reached out to the NSA concerning

that specific intelligence; and the date on which those conversations took place, revealing

additional contextual information concerning such a discussion.” Id. ¶ 32. This revelation could

also “expose particulars concerning NSA’s activities and/or capabilities, the identity of those who

may or may not be potential (or actual) surveillance targets, and/or whether or not the Agency

possesses foreign intelligence on a particular topic.” Id. ¶ 31. Such particulars are plainly

protected by the broad statutory language of Section 6 of the NSA Act “and must remain so in

order to protect NSA’s ongoing role as an intelligence provider to senior governmental officials.”

Id.

Indeed, as Mr. Thompson explains, a well-crafted FOIA request of the same sort as

Plaintiff’s here could be used to confirm the existence or occurrence of a specific intelligence

event; by confirming that a particular cabinet official spoke with an NSA official about a particular

issue in a particular timeframe, a FOIA requester could piece together the existence of intelligence

11
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on that issue and/or the likelihood of future actions taken either by NSA or by the cabinet official

or agency. See id. (noting that, for example, by confirming that an NSA official spoke with the

Secretary of Defense in advance of a specific military operation, a FOIA requester could discover

that particular intelligence influenced that operation). 5 And, in this case, because the intelligence

events identified in Plaintiff’s request pertain to the intelligence community’s efforts to understand

Russian interference in the 2016 presidential election – an effort that NSA has acknowledged

participating in but has declined to publicly disclose its particular contributions thereto – the

disclosure of the existence of responsive records (or lack thereof) would “relate[] to NSA’s

ongoing (and sensitive) activities.” Id. ¶ 32.

If the NSA Act did not protect the existence or non-existence of responsive records here,

the NSA would be forced “to disclose critical information concerning sensitive discussions among

the highest levels of government, including the topics at issue, the individuals involved, and the

date that a specific conversation took place.” Id. ¶ 33. Not only would this pose a very real risk

of revealing what information NSA has or has not been collecting, but it would also have a

significant chilling effect on one of NSA’s core functions. As Mr. Thompson explains, “[c]entral

to NSA’s success in its role of providing sensitive intelligence information at the request of

principals is that those conversations can take place freely, without fear of public disclosure.” Id.

If government principals had to worry that a FOIA request could reveal the date and subject of a

5
See also Thompson Decl. ¶ 25 (“Any individual—including our adversaries—armed with
the knowledge of a given national security event, could inquire with NSA as to whether NSA
discussed that event with specific members of the U.S. government during a particular time period.
Such confirmation, or denial, would disclose whether (or not) for example, NSA had signal
intelligence (“SIGINT”) collection capabilities concerning the topic or region at hand. Such
disclosures might also reveal whether or not specific components of the U.S. government
possessed an interest in a particular topic or event, which in certain circumstances would likely
reveal classified information.).
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conversation they had with senior NSA officials, they might think twice about having such

conversations which “in turn could harm NSA’s ongoing focus on its foreign intelligence targets,”

and would have a negative impact on “the exchange of information among the government.” Id.

Thus, confirming or denying the existence of records of a particular conversation that took

place between senior White House officials and senior NSA officials during a particular timeframe

on the particular subject of “any collusion between Russia or Russian nationals and the Trump

campaign,” id. ¶ 20, as specified by Plaintiff’s Amended Request, would necessarily reveal

information about one of NSA’s core functions and mission—“to provide the foreign intelligence

it is charged with collecting to principals in government, among them the President.” Id. ¶ 8. And,

while no demonstration of harm from disclosure is required by Section 6 of the National Security

Agency Act, see Larson, 565 F.3d at 868, the Thompson Declaration indicates that there would,

in fact, be far-reaching consequences, implicating NSA’s core function and mission, were the

agency compelled to reveal the existence or non-existence of records responsive to Plaintiff’s

request. Thompson Decl. ¶¶ 31-33. Not only would NSA’s ability to carry out one of its core

functions – the provision of intelligence information to government principals – be severely

hindered, but the information at issue “if routinely revealed [] would have potentially far-reaching

implications for national security.” Id. ¶ 25.

b. Plaintiff’s Challenges To NSA’s Glomar Response Are Meritless.

In its summary judgment motion, Plaintiff raises various challenges to NSA’s Glomar

response, none of which has merit—and none of which defeats the well-reasoned justification

offered by the Thompson Declaration.

Plaintiff first contends that the invocation of 50 U.S.C. § 3605 is improper because “the

records sought do not pertain to activities of the NSA, but rather to the inappropriate activities of

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the President.” Pl. Mot. at 11, 14. But that assertion is belied by the scope of both the initial

request and the Amended Request. The former sought five complex categories of records, only

one of which was related to any communications with White House officials or the President. See

Thompson Decl. Ex. A. The Amended Request asks for, not only any memoranda memorializing

the alleged phone call(s), but also “any communications forwarding, responding to, or discussing

that memoranda; or any other document describing any conversations” of a similar sort. See

Amended Request. The request therefore is plainly concerned with the reactions and responses

of NSA officials to the alleged phone call, not to the fact of the alleged phone call itself—or any

other specific activities of the President. That Plaintiff has made assumptions—based on media

speculation relying on unnamed sources—that the content of the call reflected some

“inappropriate” conduct on the part of the White House is irrelevant to what the Amended Request

actually seeks. And, regardless of whether the alleged phone call, if it occurred, involved

“inappropriate” conduct, confirming or denying the existence of records related to such a call

would reveal information about NSA’s core functions and activities.

For similar reasons, PDP’s contention that the existence of responsive records cannot be

relevant because it concerns “domestic, political aspects of the investigation” and NSA is only a

“foreign intelligence organization” is unavailing. See Pl. Mot. at 15. Plaintiff’s argument relies

on a characterization of the responsive records that is inconsistent with their Amended Request; it

is not, by its own terms, limited to “domestic, political aspects” of any investigation. Id. The

“phone call” described in the request would be responsive if it involved foreign intelligence issues,

as would any subsequent memoranda or internal agency correspondence. Nor is it the case that

the Amended Request only concerns “intramural” struggles between the FBI and the White House.

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See id. “FBI” and “FBI investigation” never appear in the Amended Request, and Plaintiff

provides no support for the post hoc narrowing of a FOIA request after processing.

More importantly, however, Plaintiff misunderstands the NSA “activities” and “function”

at issue. The fact of any conversation between senior NSA officials and senior White House

officials would, if disclosed, hinder NSA’s ability to provide advice to senior members of

government—an activity that is indisputably a core aspect of NSA’s mission. See Thompson Decl.

¶ 30. Nor is PDP correct that Section 6 only protects the NSA’s foreign intelligence gathering

activities and therefore does not protect this fact. See Pl. Mot. at 15-16. The statute on its face

sweeps much more broadly than merely intelligence sources and methods. See 50 U.S.C. § 3605

(providing that “nothing in this Act 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” (emphasis added)); Hayden, 608 F.2d at 1389-90. As one court

in this district explains, the NSA Act sweeps even broader than the CIA Act, because the former

applies to “any function of the NSA,” while the latter contains specifically enumerated functions

and activities that are exempt from disclosure; the court therefore held that records pertaining to

CIA’s organizational functions are not protected by the CIA Act, while suggesting that the result

would be different if that Act swept as broadly as the NSA Act. Nat’l Sec. Counselors v. CIA, 960

F. Supp. 2d 101, 177 (D.D.C. 2013). PDP simply points out that the NSA Act has been relied on

to protect NSA records pertaining to foreign intelligence gathering in the past, a fact which does

mean NSA’s Glomar response is not proper here. Plaintiff has not identified any authority

supporting the proposition that courts should not take the broad language of the NSA Act at face

value. Moreover, revealing the existence or non-existence of these types of conversations could

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also reveal information about NSA’s foreign intelligence gathering activities, directly or indirectly.

Thompson Decl. ¶ 25.

The breadth of Section 6’s application is underscored by the fact that no showing of

potential harm to national security is required. Hayden, 608 F.2d at 1390. Yet here, if senior

government officials could not freely communicate with NSA, very real harms might occur. See

Thompson Decl. ¶ 31 (“If this type of information could not remain protected pursuant to NSA’s

own statute, NSA could be forced to confirm or deny whether or not senior NSA officials spoke

to, for example, the Secretary of State in the days leading up to a treaty signing with a particular

country or to the Secretary of Defense in advance of a specific military operation.”). The

information protected by NSA’s Glomar thus lies at the heart of what National Security Agency

Act was intended to protect—the core functions of the Agency.

Plaintiff next argues that NSA’s Glomar response is supported by a rationale that is “too

conclusory,” challenging the letter in which NSA issued its final response to Plaintiff’s Amended

Request as containing too little information. Pl. Mot. at 13. But Plaintiff decided to move for

summary judgment first, 6 before the NSA had an opportunity to support its Glomar response with

a detailed affidavit. And “[i]n Glomar cases, courts may grant summary judgment on the basis of

agency affidavits that contain ‘reasonable specificity of detail rather than merely conclusory

statements, and if they are not called into question by contradictory evidence in the record or by

evidence of agency bad faith. The supporting affidavit must justify the Glomar response based on

‘general exemption review standards established in non-Glomar cases.’” EPIC, 678 F.3d at 931

6
Indeed, so eager was Plaintiff to challenge NSA’s Glomar response that it moved for
summary judgment in April – notwithstanding a December 4, 2017, Court Order that had
established a different schedule for proceedings in this case. See ECF No. 18; Minute Order of
April 16, 2018 (denying Plaintiff’s premature summary judgment motion without prejudice).
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(citations omitted). There is no requirement that such affidavits be provided before summary

judgment briefing commences. And, in any event, the objection to NSA’s letter is moot, given

that the Thompson Declaration clearly satisfies these criteria. It is detailed and specific, lacking

any indicia of bad faith, not inconsistent with any relevant evidence in the record, 7 and tracks the

exemption review standards: “Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (citation omitted). The Thompson

Declaration easily clears this threshold, particularly because “[i]n reviewing an agency’s Glomar

response, this [c]ourt exercises caution when the information requested ‘implicates national

security, a uniquely executive purview.’” Id. (quoting Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d

918, 926-27 (D.C. Cir. 2003)).

Plaintiff points out that other courts have found other Glomar responses insufficiently

supported by those agencies’ affidavits, see Pl. Mot. at 13, but the Court can only decide whether

NSA’s justification for this Glomar response is conclusory by closely examining the affidavit it

has submitted in this case. As the Court of Appeals explained in EPIC:

EPIC’s attempt to liken this case to Founding Church of Scientology


[v. NSA, 610 F.2d 824 (D.C. Cir. 1979)], in which this Court found
the agency's affidavit too conclusory to support the NSA’s rejection
of a FOIA request, see 610 F.2d at 833, is unpersuasive. The
affidavits at issue in the two cases differ substantially in their level
of specificity. In Founding Church of Scientology, the affidavit
summarily stated, without further elucidation, that “disclosure of
specific information which may be related to a specific individual or
organization in the context of the agency’s singular mission would
reveal certain functions and activities of the NSA.” Id. at 831. Here,
by contrast, the NSA's affidavit describes which functions and
activities would be implicated by disclosure, as well as how
acknowledging the existence or nonexistence of requested records
would reveal those functions or activities.

7
For reasons that follow, see infra Section II, the news articles cited in Plaintiff’s motion
do not contradict the Exemption 3 rationale provided by Mr. Thompson.
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EPIC, 678 F.3d at 932. The Court should similarly reject Plaintiff’s attempt to liken this Glomar

response to Founding Church of Scientology and other similar cases. See Pl. Mot. at 14. NSA has

provided a logical, non-conclusory affidavit, which carries its burden to demonstrate that the

Glomar response here was proper.

II. PLAINTIFF’S OTHER ARGUMENTS ARE EQUALLY UNAVAILING.

Beyond directly challenging the rationale behind NSA’s Glomar response in this case,

Plaintiff raises a variety of other arguments intended to establish that an otherwise-proper Glomar

response might nevertheless be overcome here, and contending that the Court should take further

action as to their Amended Request. For the reasons that follow, all of these arguments are

meritless.

a. Director Rogers’ Public Statements Do Not Undermine NSA’s Glomar


Response.

Plaintiff asserts that NSA’s Glomar response is “inconsistent with the public statements of

then-Director Admiral Rogers.” See Pl. Mot. at 17. Plaintiff directs the Court to Director Rogers’

March 20, 2017, testimony at a hearing before the House Permanent Select Committee on

Intelligence, at which he stated that he “think[s] a public discussion and acknowledgement” of

“[t]he investigation” of the intelligence community into Russian interference in the 2016

presidential election “is a good positive first step.” Id. That statement, however, hardly constitutes

an official acknowledgement that might defeat a Glomar response to this specific request. Wolf,

473 F.3d at 378 (holding that official acknowledgment must satisfy three criteria: the information

requested (1) must be as specific as the information previously released; (2) must match the

information previously disclosed; and (3) must have already been made public through an official

and document disclosure). Nor does a broad statement from an agency head about the general

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need for public discussion about an issue have any bearing on an agency’s Glomar response to

protect the existence or non-existence of specific records that may pertain to that issue.

In this case, moreover, the agency head has expressly disclaimed any official

acknowledgement relevant to this FOIA request; that is, Admiral Rogers has specifically declined

to reveal the existence or non-existence of the alleged memoranda and other communications

identified in Plaintiff’s Amended Request. See Thompson Decl. ¶ 35 (noting that “in a June 2017

hearing before the U.S. Senate Select Committee on Intelligence, Admiral Rogers, reflecting the

official position of the Agency, repeatedly stated that he was ‘not going to discuss the specifics of

conversations with the President of the United States,’” and he “declined to confirm or deny [the]

existence” “of materials similar in description to those which Plaintiff seeks here”).

And whatever disclosures Admiral Rogers has made about “the existence of the Russia

investigation” or “his agency’s role in discovering evidence of Russian interference and providing

it to the FBI,” Pl. Mot. at 17-18, these disclosures are not a match for the information protected

by Exemption 3 in this case. In Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d 262 (D.D.C. 2011),

the district court upheld a Glomar response to a request seeking records of four Guantanamo

detainees, notwithstanding “the known interest by the U.S. government in Guantanamo detainees.”

774 F. Supp. 2d at 274. That interest, even if revealed through official sources, like then-CIA

Director Hayden, was not sufficiently “specific information in the public domain that duplicates

the information being withheld.” Id. at 275 (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1130

(D.C. Cir. 1983)). 8 The same is true here; while Admiral Rodgers may have disclosed, in an official

8
PDP’s reliance on ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), is misplaced. In ACLU
v. CIA, the D.C. Circuit determined that various statements of the President and other high-ranking
government officials had publicly disclosed the Government’s interest in drone strikes, such that
the CIA could not issue a Glomar response on the basis that no such interest had been
acknowledged. Yet, ACLU did not alter or undermine the standard of exactitude set forth in Wolf,
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capacity, some information about NSA’s involvement with any investigation into Russian

interference in the 2016 presidential election, those disclosures are not “as specific as” the

information protected by the Glomar here. Wolf, 473 F.3d at 378. In fact, as the Thompson

Declaration explains, though “NSA has publicly acknowledged that [] it contributed to the

production of the Intelligence Community Assessment” about Russian interference with the 2016

election, “NSA has nevertheless repeatedly declined to provide more detailed information

concerning its intelligence collection related to the 2016 election.” Thompson Decl. ¶ 32; see also

Pub. Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993) (“Even if our precedents did not

command the result we reach today, we would be unwilling to fashion a rule that would require an

agency to release all related materials any time it elected to give the public information about a

classified matter. To do so would give the Government a strong disincentive ever to provide its

citizenry with briefings of any kind on sensitive topics.”). 9

Nor do the public statements of other former government officials – including former FBI

Director James Comey and former National Security Adviser Michael Flynn, see Pl. Mot. at 14 –

473 F.3d at 378. In ACLU, the CIA sought to prevent disclosure of whether it had an intelligence
interest in drone strikes, but its official public statements had made clear its interest—meaning that
there was an exact match between what the agency sought to protect and what the disclosures
revealed. Accord Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1092 (D.C.
Cir. 2014). The ACLU court’s citation to the “logical and plausible” language in Wolf did not
change the exacting standards for official acknowledgment, nor could it; the “logical and
plausible” standard constitutes not the official acknowledgment standard, but rather the long-held
standard for upholding FOIA exemptions. Wolf, 473 F.3d at 375; ACLU, 710 F.3d at 427
(“Ultimately, an agency’s justification for invoking a FOIA exemption, whether directly or in the
form of a Glomar response, is sufficient if it appears ‘logical’ or ‘plausible.’”) (citation omitted);
accord James Madison Project v. DOJ, 2018 WL 294530, at *6 (D.D.C. 2018), appealed filed Jan.
25, 2018 (D.C. Cir.) (explaining at length the meaning of the “neither logical nor plausible”
language in ACLU and disclaiming the notion that ACLU altered the legal standard for agency
Exemptions in Glomar cases).
9
While the Glomar at issue in Public Citizen was supported by Exemption 1, the interest
in protecting the integrity of NSA’s core activities and functions is equally as vital, and the official
acknowledgment standard remains the same regardless of the protected interest under FOIA.
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have any bearing on the propriety of NSA’s response to this FOIA request. In addition to the fact

that those statements are not an exact “match” for the information protected by the Glomar here,

they are not official as to NSA. See Moore v. CIA, 666 F.3d 1330, 1333 n.4 (D.C. Cir. 2011)

(explaining that disclosure of the fact of the existence of responsive records by an agency other

than the agency to whom the request was submitted does not constitute an official disclosure); see

also Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (“[W]e do not deem ‘official’ a disclosure

made by someone other than the agency from which the information is being sought.”). Thus,

none of the statements by former NSA Director Admiral Rogers, nor any other official government

statements identified in Plaintiff’s motion, defeat NSA’s otherwise-proper Glomar response here.

b. PDP Has Provided No Evidence of Government Wrongdoing or Bad Faith.

Relatedly, the Washington Post article cited and discussed extensively in Plaintiff’s motion

should have no bearing on the Court’s consideration of NSA’s properly asserted Glomar response

here. Plaintiff wisely does not argue that the article or any of its contents qualifies as an official

acknowledgement under this circuit’s Glomar case law. With good reason; courts have

unambiguously and repeatedly rejected the notion that information obtained from unnamed

sources and reported in the media qualify as official disclosures for purposes of the FOIA. See,

e.g., Agility Pub. Warehousing Co. K.S.C., v. NSA, 113 F. Supp. 3d 313, 330 n.8 (D.D.C. 2015)

(“Nor may a statement by an anonymous agency insider be deemed an ‘official acknowledgement’

because an anonymous leak is presumptively an unofficial and unsanctioned act.”); Bartko v. DOJ,

62 F. Supp. 3d 134, 143-44 (D.D.C. 2014) (distinguishing between public discussion of a matter,

including “in the popular press,” and “a statement to the media made by a person authorized to

speak for the agency” at the time the statement was made, and concluding that only the latter

suffices as an official acknowledgement.); Afshar, 702 F.2d at 1130-31 (explaining that official

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acknowledgements cannot arise from “[u]nofficial leaks and public surmise”); Wolf, 473 F.3d at

378 (“An agency’s official acknowledgment of information by prior disclosure . . . cannot be based

on mere public speculation, no matter how widespread.”).

Instead, Plaintiff points to the Washington Post story and other news articles to allege that

NSA’s Glomar response is inappropriately being used to shield supposed government

wrongdoing—specifically, wrongdoing of the President. But an allegation of government

wrongdoing is both unsupported by the record and, ultimately, immaterial; courts in this district

have affirmed invocations of Section 6 of the NSA Act where NSA’s core functions and activities

are at issue, regardless of whether the underlying documents deal with issues subject to legal

challenge. In People for the American Way Foundation, the court upheld NSA’s invocation of

Section 6 to protect information relating to a program whose legality was in question; at that time,

at least one court had held the program to be illegal and unconstitutional. 10 462 F. Supp. 2d at

30-31. Nevertheless, the court held that whether the program “is ultimately determined to be

unlawful, its potential illegality cannot be used . . . to evade the ‘unequivocal’ language of Section

6, which ‘prohibits the disclosure of information relating [to] the NSA’s functions and activities.’”

Id. at 31 (quoting Linder, 94 F.3d at 696). Thus, even if a requester alleges that government

wrongdoing might be exposed through the disclosure of the requested records, where their

disclosure – or, as here, the disclosure of the fact of their existence or non-existence – implicates

NSA’s functions and activities, Section 6 protects that information. And here, PDP has made a far

more tenuous showing of any government wrongdoing than the requester in People for the

10
Ultimately, the court’s decision holding that the NSA program was unconstitutional was
reversed by the Sixth Circuit, and no subsequent court has ruled that the program is
unconstitutional. See Am. Civil Liberties Union v. NSA, 467 F.3d 590 (6th Cir. 2006).
22
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American Way Foundation, who was able to rely on a previous district court holding that the

underlying government activity was unconstitutional. 11

Nor has Plaintiff presented evidence to the Court demonstrating that NSA has acted in bad

faith, such that its Glomar response and supporting declaration ought to be discredited. The

“presumption of good faith” typically afforded agency declarations “cannot be rebutted by purely

speculative claims about the existence and discoverability of other documents.” SafeCard Servs.,

Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted). The Washington Post story

– which cites an unnamed source – does not raise Plaintiff’s claims of the existence of responsive

records above the level of speculative. And it is agency wrongdoing that would undermine the

presumption of good faith accorded to that agency’s declaration, not any speculation about

wrongdoing by the President. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

11
Plaintiff also cites, in support of its government-wrongdoing argument, Roth v. DOJ, 642
F.3d 1161 (D.C. Cir. 2011), but that case is inapposite. There, FBI’s Glomar response relied on
Exemptions 7(C) and 6, which “exempt certain government documents from disclosure to protect
the privacy interests of third parties.” Id. at 1172. Both of those exemptions, however, involve a
balancing test, requiring courts to weigh the privacy interests of third parties that would be
compromised by disclosure against the public interest in release of the requested information, and
that public interest may include government impropriety. Id. at 1174. These exemptions are
therefore qualitatively different from Exemption 3 and the National Security Agency Act, both of
which speak in absolute terms to the protection of qualifying information and do not permit any
balancing of a countervailing public interest.
Yet even under the Exemption 7(C) balancing test, where “the asserted public interest is
the revealing of government misconduct, the Supreme Court[] . . . requires that the FOIA requester
‘establish more than a bare suspicion’ of misconduct. . . . Instead, ‘the requester must produce
evidence that would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.’” Id. at 1178 (citing Nat’l Archives & Records Admin v. Favish,
541 U.S. 157, 174 (2004)). Even if Exemption 3 and the NSA Act permitted a balancing of the
public interest against the harms of disclosure – which they do not – PDP would need to present
evidence of government wrongdoing; mere speculation would not suffice to defeat an otherwise
proper withholding. And the Washington Post story on which Plaintiff so heavily relies simply
cannot bear the burden of that showing. Plaintiff does no more than make a conclusory allegation,
and the article does not raise Plaintiff’s claim of government wrongdoing above the level of rank
speculation about either what occurred or how it would qualify as wrongdoing.
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Thus, PDP’s reliance on the speculation of unnamed sources in the Washington Post cannot defeat

NSA’s otherwise proper Glomar response.

c. NSA Is Not Withholding In Full and Need Not Segregate Any Materials.

Plaintiff contends that “Glomar may not be invoked merely because an agency believes

that a document might ultimately be exempt from disclosure under FOIA.” Pl. Mot. at 12. This

is true; a Glomar response is appropriate only where the fact of the existence or non-existence of

records responsive to the FOIA request is protected from disclosure by one of the FOIA’s

exemptions. See Wolf, 473 F.3d at 374. That fact is precisely what NSA has protected by invoking

the Glomar here: Because the existence or non-existence of responsive records would necessarily

reveal the existence or non-existence of communications between NSA officials and White House

officials concerning NSA activities, and because those communications are core functions and

activities central to the Agency’s mission, they are protected under the National Security Agency

Act and, in turn, FOIA’s Exemption 3. If records did exist, they might also be subject to Exemption

3 and/or other Exemptions of the FOIA. But NSA has taken no position on that issue, which is

not before the Court.

Lastly, PDP asserts that NSA “must, at a minimum, release any portions of the

document(s),” Pl. Mot. at 19, that might be responsive, and suggests that it should therefore redact

only some portions of responsive documents; oddly, PDP then appends a copy of a record released

by NSA in response to its original FOIA request, apparently to demonstrate that NSA knows how

to redact exempt materials where appropriate. But Plaintiff’s suggestion that NSA should conduct

a segregability analysis when it has asserted a Glomar response covering the entirety of PDP’s

Amended Request has been roundly rejected by courts in this circuit. In EPIC, the Court of

Appeals rejected an argument “that Section 552(b) [of the FOIA] requires NSA to search for

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responsive documents and conduct a segregability analysis prior to issuing a Glomar response,”

noting that the Court of Appeals “rejected a similar argument in Wolf, and EPIC is no more

persuasive.” 678 F.3d at 934. The Wolf court had explained that the requester’s argument

“misunderstands the nature of a Glomar response, which narrows the FOIA issue to the existence

of records vel non,” at which point “there are no relevant documents for the court to examine other

than the affidavits which explain the Agency’s refusal.” Wolf, 473 F.3d at 374 n.4 (citation

omitted); EPIC, 678 F.3d at 934.

For the same reason, the Court should reject Plaintiff’s invitation to review hypothetical

records in camera; indeed, neither Plaintiff nor this Court presently knows whether any responsive

records exist for in camera review. See Pl. Mot. at 20. “Although district courts possess broad

discretion regarding whether to conduct in camera review,” the D.C. Circuit has “made clear that

when the agency meets its burden by means of affidavits, in camera review is neither necessary

nor appropriate.” Larson, 565 F.3d at 870 (citing Hayden, 608 F.2d at 1387). In camera review

is “particularly a last resort in ‘national security’ situations” like this case. Weissman v. CIA, 565

F.2d 692, 697 (D.C. Cir. 1977); Larson, 565 F.3d at 870. Here, Plaintiff had not succeeded in

undermining NSA’s detailed and well-reasoned declaration and, in any event, there is nothing for

the Court to review in camera at this time. Cf. Larson, 565 F.3d at 870 (explaining that the district

court appropriately declined to conduct in camera review of records withheld in full and a

supplemental declaration that NSA proposed to submit ex parte). If this Court remains dissatisfied

with NSA’s justification for its Glomar response, the appropriate remedy would be to remand for

the agency to provide additional information in support of the Glomar. See, e.g., Wheeler v. Exec.

Office of the U.S. Attys., No. 05-1133 (CKK), 2008 WL 178451 (D.D.C. Jan. 17, 2008).

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Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 40 of 41

CONCLUSION

For the foregoing reasons, the Court should deny Plaintiff’s motion for summary judgment

and grant Defendant’s cross-motion for summary judgment.

Respectfully submitted this 9th day of August, 2018,

CHAD A. READLER
Acting Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Anjali Motgi_______________ ___


ANJALI MOTGI (TX Bar 24092864)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20530
(202) 305-0879 (tel.)
(202) 616-8470 (fax)
Anjali.Motgi@usdoj.gov

Counsel for Defendant

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Case 1:17-cv-01000-CKK Document 24 Filed 08/09/18 Page 41 of 41

CERTIFICATE OF SERVICE

I hereby certify that on August 9, 2018, a copy of the foregoing pleading was filed

electronically via the Court’s ECF system which sent notification of such filing to counsel of

record for all parties.

/s/ Anjali Motgi _


ANJALI MOTGI
Texas Bar # 24092864
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
(202) 305-0879 (tel.)
(202) 616-8470 (fax)
anjali.motgi@usdoj.gov

Counsel for Defendant

27

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