OPINION & ORDER
KATHERINE B. FORREST, District Judge:
In this action, the newspaper the New York Times and one of its reporters, Charlie Savage (collectively, the "New York Times" or "Times") challenge three redactions to two documents produced by the National Security Agency (the "NSA" or "Agency") in response to a Freedom of Information Act ("FOIA") request. The parties have cross-moved for summary judgment as to the propriety of these redactions. (ECF Nos. 15 & 19.) For the reasons stated below, the NSA's motion is GRANTED and the New York Times' motion is DENIED.
I. FACTUAL BACKGROUND
On January 12, 2015, the New York Times submitted a FOIA request to the NSA pursuant to 5 U.S.C. § 552. (ECF No. 1 ¶¶ 1, 8.) The Times sought "copies of — and declassification review of, as necessary — all NSA Inspector General Reports related to" three topics: "the agency's content collection activities under the FISA Amendments Act section 702 and the predecessor law, the Protect America Act;" "bulk phone records collection activities under Section 215 of the Patriot Act (the `FISA Business Records' program);" and "bulk Internet metadata collected under the FISA pen register/trap and trace provision (the `FISA PR/TT' program)." (
After the Agency answered the complaint (ECF No. 8), the parties jointly agreed to a schedule under which the NSA would process and release all non-exempt responsive documents in three batches, on
The Reports at Issue
The remaining conflict between the Times and the Agency concerns three redactions in two NSA Inspector General Reports. The first report is five pages long and titled "Report on the Special Study of NSA's Purge of Pen Register and Trap and Trace Bulk Metadata" (the "PR/TT Report"). (ECF No. 21 Exh. B.) The "Overview" section of the Report explains that it summarizes the Office of the NSA Inspector General's "special study of the Agency's processes to destroy Pen Register and Trap and Trace (PR/TT) bulk metadata from its declared systems, databases, and backups before the authority expired on 9 December 2011."
The redaction the New York Times challenges is found on the first and second pages of the Report, in a section titled "Background." This section explains that between July 2004 and December 2011 the NSA, "with the assistance of certain U.S. telecommunications service providers, collected, processed, and analyzed metadata from Internet communications to obtain foreign intelligence information." (
The second report relevant to the instant motion is forty-six pages long and titled "Report on the Special Study: Assessment of Management Controls Over FAA § 702" (the "§ 702 Controls Report"). (ECF No. 21 Exh. C.) A cover sheet explains that the Report summarizes the Office of the NSA Inspector General's "special study of management controls that ensure compliance with Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA § 702) and the Targeting and Minimization Procedures associated with the 2011 Certifications."
The second redaction at issue in the § 702 Controls Report comes on the twentieth page, in the section titled "FINDINGS AND RECOMMENDATIONS." (
The Sherman Declaration
In support of its motion for summary judgment, the NSA submitted a declaration from David J. Sherman, the Agency's Associated Director for Policy and Records and the official responsible for processing FOIA requests for NSA records. (ECF No. 17 ¶ 1.) Sherman is "a TOP SECRET original classification authority (`OCA') pursuant to Section 1.3 of Executive Order (`E.O.') 13526." (
Sherman's declaration sets out the NSA's reasoning for the challenged redactions.
The declaration then addresses the specific redactions at issue in this litigation. As to the PR/TT Report, Sherman explains that while one of the four operational limitations identified by the Signals Intelligence Directorate had been previously disclosed and was thus not redacted, the remaining three were currently and properly classified at the Top Secret level, meaning their release could reasonably be expected to cause exceptionally grave damage to the national security. (
According to Sherman, disclosure of these limitations would reveal the capabilities and limitations of the PR/TT program, thereby providing the country's adversaries with insight into both the likelihood that prior communications were collected and the efficacy of particular countermeasures to protect current communications. (
As to the § 702 Controls Report, the declaration first states that the redacted information on page one "pertains to the number and categories of certifications made pursuant to Section 702 of the FAA." (
As to the redacted recommendation information on page twenty of the § 702 Controls Report, Sherman attests that "[t]his information consists of technical aspects and procedures of NSA's collections under Section 702 of the FAA," and is currently and properly classified Top Secret. (
II. LEGAL PRINCIPLES
Summary Judgment Standard
Summary judgment is warranted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). FOIA litigation is typically resolved on summary judgment.
FOIA Exemption 1
The FOIA statute operates generally as a requirement that agencies disclose information upon request.
The current standard for classification is set forth in Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Section 1.1 of that order lists four requirements for the classification of national security information: (1) "an original classification authority" must classify the information; (2) the information must be "owned by, produced by or for, or ... under the control of the United States Government;" (3) the information must "fall within one or more of [eight] categories of information" listed elsewhere in the order; and (4) the original classification authority must "determine that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security," which damage the authority can identify and describe. "Original classification authorities" include government officials delegated this authority in accordance with procedures and limitations set forth in E.O. 13526.
Even where a FOIA exemption applies, the withholding must be narrow, such that "[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt." 5 U.S.C. § 552(b). This provision does not require disclosure of non-exempt material rendered meaningless by surrounding deletions,
FOIA Exemption 1 is, like the other exemptions, to be construed narrowly.
As discussed above, the New York Times challenges three separate redactions in the two Inspector General reports at issue. The Court addresses each of the redactions independently and then addresses the Times' argument that the Court should conduct
The Redaction in the PR/TT Report
Associate Director Sherman provided a detailed explanation for the challenged redaction of three operational limitations in the PR/TT Report. He specifically affirmed that the information is currently and properly classified Top Secret, and explained that the withheld portion of the report includes details about the National Security Agency's capabilities and limitations which, if revealed, would tend to inform adversaries about both the likelihood that specific communications were captured in the past and the efficacy of certain countermeasures. Sherman's declaration also states that the withheld information includes operational details about the technical means and analytic methods by which the NSA collected metadata, and that revealing these details would, among other things, both reveal the government's knowledge of specific tradecraft practiced by adversaries and assist adversaries' efforts to develop their own metadata collections programs targeting the United States.
The Sherman declaration thus contains a detailed, logical, and plausible explanation for why the challenged redaction in the
First, the Times points out that the PR/TT program that is at issue in the report was discontinued nearly five years ago; indeed, the focus of the Report is the Agency's purge of recorded bulk metadata following the expiration of the relevant authority. However, the fact that the specific program at issue is no longer operational does not answer the question of whether the redacted information is properly classified. The Sherman declaration specifically notes that the NSA remains authorized to acquire certain other metadata pursuant to different programs. It is certainly logical to limit information about the capabilities and vulnerabilities of a discontinued program where doing so could reveal the capabilities and vulnerabilities of ongoing programs.
The Times also argues that the NSA's disclosures to date on topics similar to the withheld limitations cut against the claims of harm in the Sherman declaration. It points out that the undisclosed portions of the PR/TT Report indicate that the program was not meeting expectations and that the Agency could meet certain of the goals of the PR/TT program through alternative means. These points do not, however, undercut the explanation the Agency has offered. The Sherman declaration does not describe the harms that would follow from any disclosure of the Agency's bulk metadata program, but instead focuses on the specific operational and historical details contained in the three redacted limitations. The entire statutory structure of FOIA and its exemptions anticipates a line-drawing exercise and the disclosures to date are not of the kind that would suggest no identifiable harm could come from further disclosure.
The final point of discrete dispute as to the redactions in the PR/TT Report relates to the level of generality of the redacted limitations, which can be imperfectly inferred by reference to the non-redacted third limitation. The New York Times argues that this limitation is at a sufficiently high level of generality to suggest that disclosure of the other limitations would not convey actionable information. The NSA disputes the characterization. The passage reads, in its entirety:
Taking this non-redacted passage as imperfectly representative of the level of detail contained in the redacted passage, they are not so general that the harm anticipated in the Sherman declaration becomes illogical or implausible. The disclosed
As a result of the above, the Court concludes that the NSA's explanation for its continued redaction of three operational limitations in the PR/TT Report is logical, plausible, and contains the requisite reasonable detail to carry the Agency's burden of proving the applicability of FOIA Exemption 1.
The First Redaction in the § 702 Controls Report
Associate Director Sherman's declaration also provided a detailed and logical explanation for the NSA's decision to withhold the paragraph on the first page of the § 702 Controls Report. This information, according to Sherman, "pertains to the number and categories of certifications made pursuant to Section 702 of the FAA." The NSA explains that revealing such information would reveal important details about the scope and limitation of the Agency's § 702 program which would both provide insight as to the likelihood that prior communications were intercepted and as to potential manners of tailoring future communications in order to evade searches under this ongoing authority.
The New York Times challenges the adequacy of this explanation on multiple grounds. It argues that a list of the number and categories of § 702 certifications is too inexact to pose the threat Sherman identifies, analogizing the disclosure of such information to "the FBI report[ing] on the number of wiretap applications and the types of investigations in which they were used." (ECF No. 20 at 17.) The NSA persuasively responds that, in fact, publicizing the fact that the FBI did not use wiretaps to investigate particular forms of crime would in fact pose a threat, and that the same logic applies to the categories of § 702 certifications at issue. Similarly, the number of targets investigated under § 702 authority, both at any one time and in trends over time, could logically and plausibly inform adversaries of the likelihood that past communications had been, and future communications would be, targeted.
Another challenge the Times advances is to the breadth of the redaction. The Times argues that it is unlikely that the entire redacted paragraph only contains the number and category of certifications. In the Court's view, there is little basis for this hypothesis. The PR/TT and § 702 Controls Reports are more consistent with a good faith effort to disclose non-classified information. Although certain sections (like the finding and recommendation discussed below) are redacted almost in their entirety, the more prevalent pattern is the redaction of particular sentences and words, rather than entire paragraphs. In light of that practice on the Agency's part, the Court does not agree that there is a credible basis to believe that the redacted paragraph contains more than Sherman indicates in his declaration.
The New York Times pursues a related argument when it suggests that there is reason to suspect that the redacted paragraph contains the NSA's legal analysis of § 702, and as such constitutes "working law."
As a result of the above, the Court concludes that the NSA's explanation for its continued redaction of a paragraph on page one of the § 702 Controls Report is logical, plausible, and contains the requisite reasonable detail to carry the Agency's burden of proving the applicability of FOIA Exemption 1.
The Second Redaction in the § 702 Controls Report
With regard to the final challenged redaction, on page 20 of the § 702 Controls Report, Associate Director Sherman's declaration presents an explanation for the Agency's view that the information is currently and properly classified Top Secret. According to Sherman, the redacted information in Recommendation 3 consists of technical aspects and procedures of NSA's collections under § 702. The declaration further states that the redacted information contains "granular detail" which, if disclosed, would publicize the sophistication of the NSA's efforts and aid adversaries' efforts to evade collection.
The New York Times argues that the proffered explanation for the redaction is inadequate in light of two related facts: first, that the redacted recommendation is one of eleven, all the others of which have been at least partially, if not entirely, disclosed; and second, that the challenged redaction is effectively total, rather than segregating out some limited information which could be disclosed. In the Times' view, the Sherman declarations explanations relating to Recommendation 3 were too vague and conclusory and failed to address the questions raised by these observations of the redaction's context.
As the Times recognizes, the same facts can be subject to competing interpretations. The redaction of only one of eleven recommendations could be evidence of a judicious application or redactions or could raise questions as to why the eleventh was so much more dangerous to disclose than the other ten. Sherman's declaration offers an answer: only this recommendation contains granular technical details about improving collection procedures and methods. That explanation is entitled to a presumption of good faith, and the Times does not proffer any evidence that contradicts it.
The explanation that Recommendation 3 is categorically different from the other ten recommendations in the § 702 Controls Report is also bolstered by the redactions to Finding 2, which Recommendation 3 addresses. As is the case for the other ten recommendations, a majority of each of the other five findings is disclosed. As is the case for Recommendation 3, Finding 2 is almost entirely redacted. Redaction of both the problem and the attempt to fix it is consistent with Sherman's statement that Recommendation 3 concerns technical
As a result of the above, the Court concludes that the NSA's explanation for its continued redaction of Recommendation 3 on page 20 of the § 702 Controls Report is logical, plausible, and contains the requisite reasonable detail to carry the Agency's burden of proving the applicability of FOIA Exemption 1.
In Camera Review
Finally, the New York Times argues that rather than granting summary judgment to the NSA on the basis of the Sherman declaration and the non-redacted portions of the two reports, the Court should conduct an
In this Circuit, if a supporting affidavit or declaration submitted by an agency to explain withheld information is sufficiently specific, logical, and plausible, "the district court should be able to rule on the appropriateness of the redactions without conducting an
In this case, there is no evidence that contradicts Associate Director Sherman's declaration. Nor does the declaration confine itself to boilerplate recitations of the statutory requirements; instead, it is quite detailed. There is also no evidence from which one could infer bad faith on the part of the Agency; to the contrary, the Agency has turned over documents which have led to published stories, have turned over supplemental documents following discussions with the Times after the initial disclosures, and is not even alleged to have conducted an inadequate search for records.
The Sherman declaration articulated a reasonably detailed explanation for the redactions which was both logical and plausible. It did so in a way that served its functional purpose by permitting the New York Times to meaningfully, and fairly specifically, challenge the proffered explanations. As the Times put it in its briefing, "the court's task in cases involving national security is to consider both whether the affidavits are sufficiently detailed and whether the explanation offered for any given redaction is `logical and plausible.'" (ECF No. 20 at 11.) Under the facts of this case, that task can be, and properly is, carried out without
For the reasons stated above, the National Security Agency's motion for summary judgment is GRANTED and the New York Times Company and Charlie Savage's motion for summary judgment is DENIED. The Clerk of Court is directed