Government Declarations in Snowden Damage Assessment FOIA Case

Case 1:14-cv-00197-TSC Document 13-3 Filed 02/09/15 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, ) ) Case No. 1:14-cv-00197-TSC

Plaintiff, ) )

v. ) ) UNITED STATES ) DEPARTMENT OF DEFENSE, )

) Defendant. )

____________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

JOYCE R. BRANDA Acting Assistant Attorney General RONALD C. MACHEN United States Attorney ELIZABETH J. SHAPIRO Deputy Branch Director STEVEN Y. BRESSLER Senior Counsel U.S. Department of Justice, Civil Division Ben Franklin Station, P.O. Box 833 Washington, D.C. 20044 Counsel for Defendant


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TABLE OF CONTENTS

PAGE TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 ARGUMENT .................................................................................................................................. 4

I. Statutory Standards ................................................................................................................. 4

A. The Freedom of Information Act .......................................................................................4

B. Special Considerations in National Security Cases ...........................................................6

II. Defendant is Entitled to Summary Judgment. ..................................................................... 8

A. Defendant has Properly Withheld Classified National Security Information Pursuant to FOIA Exemption 1.........................................................................................8

1. Information Was Classified by an Original Classification Authority. ...........................9

2. Information Was Produced By the United States Government. ....................................9

3. The DIA Has Properly Withheld Classified Information Pertaining to

Military Plans, Operations, and Systems Pursuant to Section 1.4(a) of Executive Order 13,526. ................................................................................................9

4. The DIA Has Properly Withheld Foreign Government Information

Pursuant to Section 1.4(b) of Executive Order 13,526. ...............................................10

5. DIA Has Properly Withheld Information Pertaining to Intelligence Sources and Methods That is Classified Pursuant to Section 1.4(c) of Executive Order 13,526. ..............................................................................................10

6. DIA Properly Withheld Information Relating to the United States

Foreign Relations or Foreign Activities That is Classified Pursuant to Section 1.4(d) of Executive Order 13,526. ..................................................................11


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7. DIA Has Properly Withheld Information Pertaining to Scientific and Technical Matters Related to National Security That is Properly Classified Pursuant to Section 1.4(e) of Executive Order 13,526. ..............................12

8. DIA Has Properly Withheld Information Pertaining to National

Security Vulnerabilities That is Properly Classified Pursuant to Section 1.4(g) of Executive Order 13,526. ..................................................................13

9. DIA Has Properly Withheld Information Pertaining to Weapons of

Mass Destruction That is Properly Classified Pursuant to Section 1.4(h) of Executive Order 13,526. ...............................................................................14

B. Defendant Properly Withheld Information Pursuant to FOIA Exemption 3 ..................14

C. Defendant Properly Withheld Information Subject to the Deliberative

Process Privilege Pursuant to Exemption 5. ...................................................................18

D. Defendant Properly Withheld Individuals Personal Information Pursuant to FOIA Exemption 6. .....................................................................................................20

E. Defendant has Released All Non-Exempt, Reasonably Segregable Portions

of the Responsive Documents. ........................................................................................22

F. Defendants Search for Responsive Records Satisfies FOIA. ........................................23

G. Plaintiffs Claim as to the Timeliness of Defendants Response is Moot. ......................25 CONCLUSION ............................................................................................................................. 26


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TABLE OF AUTHORITIES CASES PAGE(S) ACLU v. Dep't of Defense,

628 F.3d 612 (D.C. Cir. 2011) .................................................................................................. 17 ACLU v. Dep't of Justice,

265 F. Supp. 2d 20 (D.D.C. 2003) .............................................................................................. 7 ACLU v. FBI,

429 F. Supp. 2d 179 (D.D.C. 2006) .......................................................................................... 12 Assassination Archives & Research Ctr. v. CIA,

334 F.3d 55 (D.C. Cir. 2003) .................................................................................................... 18 Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,

830 F.2d 331 (D.C. Cir. 1987) .............................................................................................. 6, 15 Baez v. Dep't of Justice,

647 F.2d 1328 (D.C. Cir. 1980) ................................................................................................ 22 Baker & Hostetler LLP v. Dep't of Commerce,

473 F.3d 312 (D.C. Cir. 2006) ................................................................................................ 4, 5 Carter v. Dept of Commerce, 830 F.2d 388 (D.C. Cir. 1987) ................................................................................................. 21 CIA v. Sims,

471 U.S. 159 (1985) ........................................................................................................ 4, 15, 17 Coastal States Gas Corp. v. Dep't of Energy,

617 F.2d 854 (D.C. Cir. 1980) .................................................................................................. 19 Ctr. for Nat'l Sec. Studies v. Dep't of Justice,

331 F.3d 918 (D.C. Cir. 2003) ...................................................................................... 4, 6, 7, 11 Dep't of Defense v. Fed. Labor Relations Auth.,

510 U.S. 487 (1994) .................................................................................................................. 21 Dep't of Interior v. Klamath Water Users Protective Ass'n,

532 U.S. 1 (2001) ...................................................................................................................... 19


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Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) ............................................................................................................ 20, 22

Fitzgibbon v. CIA,

911 F.2d 755 (D.C. Cir. 1990) .......................................................................................... 7, 9, 11 Frugone v. CIA,

169 F.3d 772 (D.C. Cir. 1999) ................................................................................................ 7, 9 Goland v. CIA,

607 F.2d 339 (D.C. Cir. 1978) .................................................................................................. 16 Ground Saucer Watch v. CIA,

692 F.2d 770 (D.C. Cir. 1981) .............................................................................................. 5, 24 Hayden v. NSA,,

608 F.2d 1381 (D.C. Cir. 1979) ................................................................................................ 18 Heggestad v. Dep't of Justice,

182 F. Supp. 2d 1 (D.D.C. 2000) .............................................................................................. 19 In re Sealed Case,

121 F.3d 729 (D.C. Cir. 1997) .................................................................................................. 18 John Doe Agency v. John Doe Corp.,

493 U.S. 146 (1989) ................................................................................................................ 4, 5 Johnson v. Exec. Office for U.S. Attorneys,

310 F.3d 771 (D.C. Cir. 2002) ............................................................................................ 23, 24 Judicial Watch v. Dep't of Justice,

306 F. Supp. 2d 58 (D.D.C. 2004) ............................................................................................ 12 Kidd v. Dep't of Justice,

362 F. Supp. 2d 291 (D.D.C. 2005) .......................................................................................... 25 King v. Dep't of Justice,

830 F.2d 210 (D.C. Cir. 1987) ............................................................................................ 6, 7, 8 Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980) .................................................................................................................... 6 Krikorian v. Dept of State, 984 F.2d 461 (D.C. Cir. 1993) .................................................................................................. 17


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Larson v. Dep't of State, 565 F.3d 857 (D.C. Cir. 2009) ........................................................................................... passim

Larson v. Dep't of State,

Civ. No. 02-1937 (PLF), 2005 WL 3276303 (D.D.C. Aug. 10, 2005) ..................................... 16 Lesar v. Dep't of Justice,

636 F.2d 472 (D.C. Cir. 1980) .................................................................................................. 22 Loving v. Dep't of,

Def., 496 F. Supp. 2d 101 (D.D.C. 2007) ................................................................................. 23 Mapother v. Dep't of Justice,

3 F.3d 1533 (D.C. Cir. 1993) .................................................................................................... 18 Maynard v. CIA,

986 F.2d 547 (1st Cir. 1993) ....................................................................................................... 5 Mead Data v. Dep't of the Air Force,

566 F.2d 242 (D.C. Cir. 1977) .................................................................................................. 23 Meeropol v. Meese,

790 F.2d 942 (D.C. Cir. 1986) .................................................................................................. 24 Military Audit Project v. Casey,

656 F.2d 724 (D.C. Cir. 1981) .................................................................................................... 6 Miller v. Dep't of Justice,

562 F. Supp. 2d 82 (D.D.C. 2008) ............................................................................................ 16 Minier v. CIA,

88 F.3d 796 (9th Cir. 1996) ........................................................................................................ 5 Nation Magazine v. U.S. Customs Serv.,

71 F.3d 885 (D.C. Cir. 1995) ...................................................................................................... 4 Nat'l Sec. Archive Fund, Inc. v. CIA,

402 F. Supp. 2d 211 (D.D.C. 2005) .................................................................................... 22, 23 NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975) .................................................................................................................. 18 Oglesby v. Dep't of Army,

920 F.2d 57 (D.C. Cir. 1990) ............................................................................................ 4, 5, 24


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Painting & Drywall Work Preservation Fund, Inc. v. HUD, 936 F.2d 1300 (D.C. Cir. 1991) .......................................................................................... 20, 21

Perry v. Block,

684 F.2d 121 (D.C. Cir. 1982) ............................................................................................ 24, 25 Public Citizen, Inc. v. Office of Management & Budget,

598 F.3d 865 (D.C. Cir. 2009) .................................................................................................. 20 Ray v. Turner,

587 F.2d 1187 (D.C. Cir. 1978) .................................................................................................. 7 Reed v. NLRB,

927 F.2d 1249 (D.C. Cir. 1991) ................................................................................................ 21 Reliant Energy Power Generation, Inc. v. FERC,

520 F. Supp. 2d 194 (D.D.C. 2007) ............................................................................................ 6 Roberts v. Dep't of Justice,

No. 92-1707, 1995 WL 356320 (D.D.C. Jan. 29, 1993) ........................................................... 25 Russell v. Dep't of the Air Force,

682 F.2d 1045 (D.C. Cir. 1982) .......................................................................................... 18, 19 Sack v. CIA, --- F.Supp.2d ----, Civ. No. 12-244 (EGS), 2014 WL 3375568 (D.D.C. July 10, 2014) ................................................ 17 SafeCard Servs., Inc. v. SEC,

926 F.2d 1197 (D.C. Cir. 1991) ................................................................................................ 24 Schoenman v. FBI,

763 F. Supp. 2d. 173 (D.D.C. 2011) ......................................................................................... 23 Schrecker v. Dep't of Justice,

349 F.3d 657 (D.C. Cir. 2003) .................................................................................................. 24 Steinberg v. Dep't of Justice,

23 F.3d 548 (D.C. Cir. 1994) ...................................................................................................... 5 Tax Analysts v. IRS,

294 F.3d 71 (D.C. Cir. 2002) .................................................................................................... 18 Tex. Indep. Producers Legal Action Ass'n v. IRS,

605 F. Supp. 538 (D.D.C. 1984) ............................................................................................... 24 Tijerina v. Walters,

821 F.2d 789 (D.C. Cir. 1987) .................................................................................................. 25


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Valencia-Lucena v. U.S. Coast Guard,

180 F.3d 321 (D.C. Cir. 1999) .................................................................................................... 5 Voinche v. FBI,

940 F. Supp. 323 (D.D.C. 1996) ............................................................................................... 22 W. Ctr. for Journalism v. IRS,

116 F. Supp. 2d 1 (D.D.C. 2000) .............................................................................................. 25 Weisberg v. Dep't of Justice,

705 F.2d 1344 (D.C. Cir. 1983) .................................................................................................. 5 Weisberg v. Dep't of Justice,

745 F.2d 1476 (D.C. Cir. 1984) ...................................................................................... 5, 24, 25 Wilbur v. CIA,

355 F.3d 675 (D.C. Cir. 2004) .................................................................................................... 5 Wilson v. DEA,

414 F. Supp. 2d 5 (D.D.C. 2006) ................................................................................................ 5 Wolf v. CIA,

473 F.3d 370 (D.C. Cir. 2007) .................................................................................................... 8 Zadvydas v. Davis,

533 U.S. 678 (2001) .................................................................................................................... 7 STATUTES 5 U.S.C. 552 ........................................................................................................................ passim 10 U.S.C. 424 ............................................................................................................................. 16 50 U.S.C. 403-1(i)(1) ..................................................................................................... 16, 17, 18 50 U.S.C. 403-3(c)(7) ................................................................................................................ 17 Pub. L. No. 111-83, tit. V, 564, 123 Stat. 2184 (2009) ............................................................. 15 REGULATIONS 32 C.F.R. Part 385........................................................................................................................... 1 EXECUTIVE ORDERS E.O. 13,526 ............................................................................................................................ passim


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LEGISLATIVE MATERIALS H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423........................ 4


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PRELIMINARY STATEMENT

Plaintiff in this Freedom of Information Act case, Jason Leopold, requested of the

Defense Intelligence Agency (DIA) a component of defendant the United States Department

of Defense a copy of a report prepared by DIA assessing the damage done by unauthorized

disclosures of classified information in 2013 by former National Security Agency contractor

Edward Snowden. Plaintiff also requested any DIA records referencing that damage assessment.

In response, the DIA located 112 responsive documents. As explained in the agencys Vaughn

declarations and index (submitted as attachments to defendants Motion), DIA released to

plaintiff those portions of the responsive records that are not exempt from FOIA disclosure

pursuant to 5 U.S.C. 552(b). The DIA appropriately redacted material that is classified

pursuant to Executive Order and therefore subject to FOIA Exemption 1, material that is

properly withheld pursuant to the operation of other statutes and therefore subject to FOIA

Exemption 3, material that is protected by the deliberative process privilege and therefore subject

to FOIA Exemption 5, and material that would unduly invade the privacy of individuals and is

therefore subject to FOIA Exemption 6.

As explained in the sworn testimony of DIA officials, the agency has released all non-

exempt portions of the responsive records to plaintiff. The Court should, accordingly, grant

summary judgment to defendant.

BACKGROUND

The DIA is a component of the United States Department of Defense. See Declaration of

Alesia Williams, 4. Its mission is to collect, analyze, and provide intelligence on the military

capabilities of foreign military forces to the Secretary of Defense, the Joint Chiefs of Staff, and

other DOD components. Id. Because of its mission to collect, analyze, and provide foreign


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intelligence, most DIA records are classified in the interests of national security in accordance

with Executive Order 13,526. Id.

On January 31, 2014, plaintiff submitted a FOIA request to DIA for records pertaining to

a report described in Foreign Policy regarding the assessment of the potential impact to the DOD

from the compromise of leaked information by former NSA contractor, Edward Snowden. See

Williams Decl., 5 & Exh. A; Compl. 21, Answer 21. Plaintiff requested all records that

were prepared, received, transmitted, collected, and/or maintained by DIA mentioning or

referring to this referenced report. Williams Decl., 5 & Exh. A. Plaintiff, claiming the

requested records were urgently needed and that he was primarily engaged in disseminating

information to inform the public about the federal governments activities, also requested

expedited treatment of his request. Id.

On February 4, 2014, DIAs FOIA office wrote to plaintiff to confirm receipt of the

FOIA request and informing plaintiff that DIA had denied his request for expedited processing

pursuant to Section C1.5.4.3 of the Defense FOIA Regulation 5400.7-R. Williams Decl. 6 &

Exh. B. DIA also informed Mr. Leopold of a substantial delay in processing FOIA requests and

indicated to Mr. Leopold that his request would be processed in the order that it was received.

Id. One week later, on February 11, 2014, plaintiff filed his Complaint in this action. Williams

Decl. 7; Compl.

Upon review of plaintiffs FOIA request, the DIA FOIA office determined that DIAs

Directorate for Operations (DO) was the only Directorate or portion of the agency that could

reasonably be expected to maintain records related to the report mentioned in Mr. Leopolds

FOIA request. Williams Decl. 8. DO contained a Task Force created to evaluate the damage

done to national security from the Snowden disclosures which prepared the Damage Assessment


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plaintiff requested. The Task Forces work and files, including any records referencing the

Damage Assessment, are required to be kept in the Task Forces filing system, segregated from

other records. Id.

The Chief of the Task Force directed a search for responsive records and assigned the

Task Force records officer and technical lead to conduct the search. Id. 9. The records officer

examined the Task Forces compartmented system of records and located 112 documents

responsive to plaintiffs FOIA request. Williams Decl. 10. Following a review, on May 21,

2014, DIA released through counsel one document (the Damage Assessment itself) to plaintiff in

part. Id. 11. On August 7, 2014, DIA provided plaintiff, through counsel, a further response

explaining that it was withholding 109 in full pursuant to FOIA. Williams Decl. 12 & Exh. C.

Then on November 7, 2014, DIA informed plaintiff, through counsel, that the final two

responsive documents had also been withheld in full in full pursuant to FOIA. Williams Decl.

13 & Exh. D.

DIA subsequently re-reviewed all 112 responsive records to ensure it had released to

plaintiff all segregable, non-exempt information. Williams Decl. 14. Following that further

thorough consideration, on February 9, 2015, DIA provided plaintiff, through counsel, a

supplemental response to his FOIA request that released portions of many of the documents that

had been previously withheld in full. Id. The agency released a small amount of information,

such as document section headings, that could be segregated from the exempt portions of the

documents. Id.


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ARGUMENT

I. Statutory Standards

A. The Freedom of Information Act

FOIAs basic purpose reflects a general philosophy of full agency disclosure unless

information is exempted under clearly delineated statutory language. John Doe Agency v. John

Doe Corp., 493 U.S. 146, 152 (1989) (citation and internal quotation marks omitted). Congress

recognized, however, that public disclosure is not always in the public interest. CIA v. Sims,

471 U.S. 159, 16667 (1985). Accordingly, in passing FOIA, Congress sought to reach a

workable balance between the right of the public to know and the need of the Government to

keep information in confidence to the extent necessary without permitting indiscriminate

secrecy. John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 (1966),

reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As the D.C. Circuit has recognized, FOIA

represents a balance struck by Congress between the publics right to know and the

governments legitimate interest in keeping certain information confidential. Ctr. for Natl Sec.

Studies v. Dept of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493

U.S. at 152).

When conducting a search for records responsive to a FOIA request, an agency must

make a good faith effort to conduct a search for the requested records, using methods which can

be reasonably expected to produce the information requested. Nation Magazine v. U.S.

Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. Dept of Army, 920 F.2d

57, 68 (D.C. Cir. 1990)). An agency may establish the adequacy of its search by submitting

reasonably detailed, nonconclusory affidavits describing its efforts, Baker & Hostetler LLP v.

Dept of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006), including by setting forth the search


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terms and the type of search performed, and averring that all files likely to contain responsive

materials (if such records exist) were searched, Valencia-Lucena v. U.S. Coast Guard, 180 F.3d

321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d at 68). The Court must evaluate not

whether there might exist any other documents possibly responsive to the request, but rather

whether the search for those documents was adequate. Steinberg v. Dept of Justice, 23 F.3d

548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dept of Justice, 745 F.2d 1476, 1485 (D.C. Cir.

1984)). Accordingly, an agencys failure to turn up a particular document, or mere speculation

that as yet uncovered documents might exist, does not undermine the determination that the

agency conducted an adequate search for the requested records. Wilbur v. CIA, 355 F.3d 675,

678 (D.C. Cir. 2004) (per curiam). In evaluating the adequacy of a search, courts recognize that

[a]gency affidavits enjoy a presumption of good faith, which will withstand purely speculative

claims about the existence and discoverability of other documents. Ground Saucer Watch v.

CIA, 692 F.2d 770, 771 (D.C. Cir. 1981); see Baker & Hostetler, 473 F.3d at 318; Goland v.

CIA, 607 F.2d 339, 35253 (D.C. Cir. 1978). Accordingly, a plaintiff bears an evidentiary

burden to present evidence rebutting the agencys initial showing of a good faith search. See

Wilson v. DEA, 414 F. Supp. 2d 5, 12 (D.D.C. 2006) (citing Maynard v. CIA, 986 F.2d 547, 560

(1st Cir. 1993); Weisberg v. Dept of Justice, 705 F.2d 1344, 1351-52 (D.C. Cir. 1983)).

FOIA mandates disclosure of agency records unless the requested information falls

within one of nine enumerated exemptions. See 5 U.S.C. 552(b). A district court only has

jurisdiction to compel an agency to disclose improperly withheld agency records, i.e., records

that do not fall within an exemption. Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also

5 U.S.C. 552(a)(4)(B) (providing the district court with jurisdiction only to enjoin the agency

from withholding agency records and to order the production of any agency records improperly


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withheld from the complainant); Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 150 (1980) (Under 5 U.S.C. 552(a)(4)(B)[,] federal jurisdiction is dependent upon a

showing that an agency has (1) improperly (2) withheld (3) agency records.). FOIAs

statutory exemptions are intended to have meaningful reach and application, John Doe Agency,

493 U.S. at 152.

Most FOIA actions are resolved on summary judgment. Reliant Energy Power

Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007). The government bears the

burden of proving that any withheld information falls within the exemptions it invokes. See 5

U.S.C. 552(a)(4)(B); King v. Dept of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A court

may grant summary judgment to the government based entirely on the basis of information set

forth in agency affidavits or declarations which describe the documents and the justifications

for nondisclosure with reasonably specific detail, demonstrate that the information withheld

logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981).

B. Special Considerations in National Security Cases

Defendants have invoked Exemption 1 as one basis for declining to confirm or deny the

existence of certain information and records. Information withheld on the basis of Exemption 1

often implicat[es] national security, a uniquely executive purview. Ctr. for Natl Sec. Studies

v. Dept of Justice, 331 F.3d 918, 92627 (D.C. Cir. 2003). While courts review de novo an

agencys withholding of information pursuant to a FOIA request, de novo review in FOIA cases

is not everywhere alike. Assn of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331,

336 (D.C. Cir. 1987). Although de novo review calls for an objective, independent judicial


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determination, courts nonetheless defer to an agencys determination in the national security

context, acknowledging that the executive ha[s] unique insights into what adverse [e]ffects

might occur as a result of public disclosure of a particular classified record. Ray v. Turner, 587

F.2d 1187, 1194 (D.C. Cir. 1978) (internal quotation marks omitted). Courts have specifically

recognized the propriety of deference to the executive in the context of FOIA claims which

implicate national security. Ctr. for Natl Sec. Studies, 331 F.3d at 927 (citing Zadvydas v.

Davis, 533 U.S. 678, 696 (2001)).

Accordingly, courts have consistently deferred to executive affidavits predicting harm to

the national security, and have found it unwise to undertake searching judicial review. Ctr. for

Natl Sec. Studies, 331 F.3d at 927; see Larson v. Dept of State, 565 F.3d 857, 865 (D.C. Cir.

2009) (Today we reaffirm our deferential posture in FOIA cases regarding the uniquely

executive purview of national security.). [I]n the national security context, therefore, the

reviewing court must give substantial weight to agency declarations. ACLU v. Dept of

Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (quoting King, 830 F.2d at 217); see Frugone v.

CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (stating that because courts have little expertise in

either international diplomacy or counterintelligence operations, we are in no position to dismiss

the CIAs facially reasonable concerns about the harm that disclosure could cause to national

security); Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court

erred in perform[ing] its own calculus as to whether or not harm to the national security or to

intelligence sources and methods would result from disclosure). In according such deference,

a reviewing court must take into account . . . that any affidavit or other agency statement of

threatened harm to national security will always be speculative to some extent, in the sense that it


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describes a potential future harm. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (citation and

internal quotation marks omitted).

II. Defendant is Entitled to Summary Judgment.

As explained below, the Court should grant summary judgment for defendant because the

withheld material is exempt from disclosure under FOIA Exemptions 1, 3, 5, and 6, 5 U.S.C.

552(b)(1), (3), (5), & (6).

A. Defendant has Properly Withheld Classified National Security Information Pursuant to FOIA Exemption 1.

Exemption 1 protects from disclosure records that are (A) specifically authorized under

criteria established by an Executive order to be kept secret in the interest of national defense or

foreign policy, and (B) are in fact properly classified pursuant to such Executive order. 5

U.S.C. 552(b)(1). The current Executive Order, E.O. 13,526, governs the classification of

national security information.

An agency establishes that it has properly withheld information under Exemption 1 if it

demonstrates that it has met the classification requirements of E.O. 13,526. Section 1.1 of the

Executive Order sets forth four requirements for the classification of national security

information: (1) an original classification authority classifies the information; (2) the U.S.

Government owns, produces, or controls the information; (3) the information is within one of

eight protected categories listed in section 1.4 of the Order; and (4) the original classification

authority determines that the unauthorized disclosure of the information reasonably could be

expected to result in a specified level of damage to the national security, and the original

classification authority is able to identify or describe the damages. E.O. 13,526 1.1(a). As

noted, the Court must accord substantial weight to agency affidavits concerning classified

information, King, 830 F.2d at 217, and must defer to the expertise of agencies involved in


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national security and foreign policy, particularly to those agencies articulations and predictive

judgments of potential harm to national security, see Larson, 565 F.3d at 865; Frugone, 169 F.3d

at 775; Fitzgibbon, 911 F.2d at 766. Here, the DIA has met both the procedural and substantive

requirements of the Executive Order, and so the classified portions of records responsive to

plaintiffs FOIA request are properly subject to Exemption 1.

1. Information Was Classified by an Original Classification Authority.

David Leatherwood, the Director for Operations for the DIA, has affirmed that he is

authorized to classify and declassify national security information. Leatherwood Decl. 1, 2.

He has personally reviewed the 112 documents at issue and determined that an original

classification authority properly classified the withheld information consistent with the

requirements of E.O. 13,526, and that the information remains properly classified. Id. 7.

2. Information Was Produced By the United States Government.

Director Leatherwood confirms that the information in the responsive documents was

produced by, and remains under the control of, the United States Government. Id. 4.

3. The DIA Has Properly Withheld Classified Information Pertaining to Military Plans, Operations, and Systems Pursuant to Section 1.4(a) of Executive Order 13,526.

Section 1.4(a) of Executive Order 13,526 permits the classification of information

concerning military plans, weapon systems, or operations. See Miller v. Dept of Justice, 562

F. Supp. 2d 82, 101 (D.D.C. 2008). DIA determined that one responsive record includes data

related to the effectiveness of current United States military operations, as well as the impact that

the leaks may have on the governments ability to conduct current and future military operations,

if such information is made public. Leatherwood Decl. 9. Disclosure of the effectiveness of

current United States military plans and operations would allow foreign governments and


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potential adversaries to re-evaluate current and future foreign operations and either modify those

operations, or develop new military plans capable of circumventing or defeating the military

plans and operations of the United States. Thus, as Director Leatherwood testifies, its release

could reasonably be expected to cause exceptionally grave damage to national security, and it is

properly classified Top Secret. Id. It is therefore properly withheld pursuant to FOIA

Exemption 1. 5 U.S.C. 552(b)(1).

4. The DIA Has Properly Withheld Foreign Government Information Pursuant to Section 1.4(b) of Executive Order 13,526.

Section 1.4(b) of the Executive Order protects foreign government information. That

includes information provided to the United States Government by a foreign government or

governments . . . with the expectation that the information, the source of the information, or both,

are to be held in confidence. E .O. 13526, 6.1(s)(1). Thirteen of the withheld documents

contain such information. Leatherwood Decl. 10. As Director Leatherwood explains:

Foreign governments provide critical assistance to DIA operations under the condition that their assistance is kept secret. Like the revelation of information revealing individual human sources, disclosing the fact of a clandestine foreign liaison relationship would suggest to all other foreign liaison services and foreign government officials that the DIA is unable or unwilling to observe an agreement of absolute secrecy. This perception could reasonably be expected to cause liaison services and government officials to limit their provision of information to, or cooperation with, the DIA, or even to end the relationship altogether, thus causing the United States Government to lose valuable foreign intelligence. Moreover, this perception could discourage foreign governments from entering into any kind of relationship with the DIA.

Leatherwood Decl. 11. As Director Leatherwood also attests, releasing this information could

therefore be reasonably expected to cause exceptionally grave damage to national security, and

so he has determined it remains properly classified Top Secret. Id. 12. It is therefore properly

subject to FOIA Exemption 1. 5 U.S.C. 552(b)(1).


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5. DIA Has Properly Withheld Information Pertaining to Intelligence Sources and Methods That is Classified Pursuant to Section 1.4(c) of Executive Order 13,526.

Section 1.4(c) of E.O. 13526 permits the classification of intelligence activities

(including covert action), intelligence sources or methods, or cryptology, recognizing that the

disclosure of such information could cause harm to national security. DIA has withheld such

information from all 112 responsive documents. Leatherwood Decl. 13, 15. As Director

Leatherwood testifies, [r]elease of this information would impair the intelligence collection

mission of the intelligence community and would provide adversaries enough knowledge

about specific collection techniques to potentially allow adversaries to develop countermeasures

to resist these techniques. Id. 15. This would render the intelligence sources and methods

useless, and thus could reasonably be expected to cause exceptionally grave damage to national

security. Id. The withheld information therefore remains currently and properly classified Top

Secret, and is subject to FOIA Exemption 1. Id.; 5 U.S.C. 552(b)(1). See also Larson, 565

F.3d at 863; Ctr. for Natl Sec. Studies, 331 F.3d at 928 (things that did not make sense to the

District Judge would make all too much sense to a foreign counter-intelligence specialist who

could learn much about this nations intelligence gathering capabilities from what these

documents revealed about sources and methods); Fitzgibbon v. CIA, 911 F.2d 755, 763 (D.C.

Cir. 1990) (each individual piece of intelligence information, much like a piece of jigsaw

puzzle, may aid in piecing together other bits of information even when the individual piece is

not of obvious importance itself) (citations omitted).


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6. DIA Properly Withheld Information Relating to the United States Foreign Relations or Foreign Activities That is Classified Pursuant to Section 1.4(d) of Executive Order 13,526.

Section 1.4(d) of Executive Order 13, 526 recognizes that the release of certain

information would impair U.S. government relations with foreign governments, and thus permits

the classification of certain information relating to foreign relations or foreign activities of the

United States, including confidential sources. Such information is contained in all the

responsive records except one (document V-9), and concerns both confidential sources and

sensitive aspects of U.S. foreign relations. Leatherwood Decl. 16. This includes confidential

information about the United States intelligence relationships and agreements with foreign

countries. Id. 17-18. As Director Leatherwood explains, disclosure of this information could

reasonably be expected to damage our relations with governments whose cooperation is

important to U.S. security and would hinder DIAs ability to collect and share intelligence.

Id. Director Leatherwood has determined that disclosure of this information could reasonably be

expected to cause serious or, in some cases, exceptionally grave damage to national security. Id.

18. It is therefore properly classified and subject to FOIA exemption 1. 5 U.S.C. 552(b)(1);

see, e.g., Krikorian v. Dept of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993) (upholding State

Departments withholding of telegrams containing communications from foreign government

officials given the Departments view that release would jeopardize reciprocal confidentiality

and damage national security); ACLU v. FBI, 429 F. Supp. 2d 179, 188 (D.D.C. 2006)

(upholding FBIs withholding of information to prevent the identification of ... cooperating

foreign governments); Judicial Watch v. Dept of Justice, 306 F. Supp. 2d 58, 66 (D.D.C. 2004)

(upholding Exemption 1 withholding of communications where disclosure could adversely

affect the persons involved, inhibit the willingness of corporate and foreign government officials


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to discuss frankly with U.S. Government officials matters affecting our national interests, and

damage relations with the Dominican Republic).

7. DIA Has Properly Withheld Information Pertaining to Scientific and Technical Matters Related to National Security That is Properly Classified Pursuant to Section 1.4(e) of Executive Order 13,526.

Section 1.4(e) of Executive Order 13,526 permits the classification of scientific,

technological, or economic matters relating to the national security. DIA withheld such

information from two responsive records. Leatherwood Decl. 19. The information concerns

scientific and technological capabilities of foreign governments and the United States ability to

assess these capabilities, and it speaks to the United States ability to counter these capabilities

in the event they pose a threat to national security, especially those capabilities that involve

potential aid to transnational terrorism. Id. As Director Leatherwood explains, [r]elease of

this information would indicate to our adversaries the extent to which the United States

recognizes the strengths and/or weaknesses [of] foreign government capabilities and that could

allow those adversaries to either seek to rectify any identified weaknesses, or engage in

countermeasures in order to reduce the ineffectiveness of said capabilities. Id. Because

disclosure of the information could reasonably be expected to cause exceptionally grave damage

to national security, id., it is properly classified Top Secret and subject to FOIA Exemption 1. 5

U.S.C. 552(b)(1).

8. DIA Has Properly Withheld Information Pertaining to National Security Vulnerabilities That is Properly Classified Pursuant to Section 1.4(g) of Executive Order 13,526.

Section 1.4(g) of Executive Order 13,526 permits the classification of information

pertaining to vulnerabilities or capabilities of systems, installations, infrastructures, projects,

plans, or protection services relating to the national security. DIA has withheld in six


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documents information that concerns the vulnerabilities of U.S. systems and installations, both

domestic and overseas, and the security measures in place to protect them from acts of

terrorism. Leatherwood Decl. 20. As Director Leatherwood testifies:

Disclosure of this information could reasonably be expected to enable foreign governments, persons, or entities to undertake measures that would expose these vulnerabilities. This could, in turn, be reasonably expected to cause exceptionally grave damage to national security because release of the classified information would indicate to our adversaries the strengths and/or weaknesses of our systems. Our adversaries could, in turn, either seek to exploit any identified weaknesses, or engage in countermeasures in order to reduce the effectiveness of said systems.

Id. The withheld information is thus properly classified Top Secret and subject to FOIA

Exemption 1. 5 U.S.C. 552(b)(1).

9. DIA Has Properly Withheld Information Pertaining to Weapons of Mass Destruction That is Properly Classified Pursuant to Section 1.4(h) of Executive Order 13,526.

Section 1.4(h) of the Executive Order permits the classification of information pertaining

to the development, production, or use of weapons of mass destruction. Such information has

been withheld in two documents, and concerns the United States ability to assess and counter

foreign nuclear programs, as well as other issues related to national security concerns involving

weapons of mass destruction. Leatherwood Decl. 21. As Director Leatherwood explains,

[r]elease of this information would indicate to our adversaries the extent to which the United

States recognizes the strengths and/or weaknesses of foreign nuclear programs and/or abilities,

and would permit those adversaries to either seek to rectify any identified weaknesses, or

engage in countermeasures in order to reduce the United States ability to effectively monitor

these foreign nuclear programs and/or abilities. Id. Director Leatherwood has determined

release of this information concerning weapons of mass destruction could reasonably be


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expected to cause exceptionally grave damage to national security. Id. It is, therefore, properly

classified Top Secret and subject to FOIA Exemption 1. 5 U.S.C. 552(b)(1).

B. Defendant Properly Withheld Information Pursuant to FOIA Exemption 3

Defendant has also withheld information pursuant to FOIA Exemption 3, including

information also withheld as classified pursuant to Exemption 1. As this Circuit has recognized,

agencies may invoke the exemptions independently and courts may uphold agency action under

one exemption without considering the applicability of the other. Larson, 565 F.3d at 862-63.

Exemption 3 protects from disclosure information that is protected by a separate statute,

provided that such statute requires that the matters be withheld from the public in such a manner

as to leave no discretion on the issue, or establishes particular criteria for withholding or refers

to particular types of matters to be withheld. 5 U.S.C. 552(b)(3).1 The purpose of

Exemption 3 [is] to assure that Congress, not the agency, makes the basic nondisclosure

decision. Assn of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir.

1987).

Courts apply a two-pronged inquiry when evaluating an agencys invocation of

Exemption 3. See Sims, 471 U.S. at 167-68. First, the court must determine whether the statute

identified by the agency qualifies as an exempting statute under Exemption 3. Second, the court

should consider whether the withheld material falls within the scope of the exempting statute.

See id. As the D.C. Circuit has recognized, Exemption 3 presents considerations distinct and

apart from the other eight exemptions. Assn of Retired R.R. Workers, 830 F.2d at 336. [I]ts

1 The relevant section of the FOIA statute setting forth Exemption 3 was amended five years ago to specify that statutes enacted after the date of enactment of the OPEN FOIA Act of 2009 must specifically cite to the appropriate section of FOIA to qualify as withholding statutes pursuant to Exemption 3. See 5 U.S.C. 552(b)(3)(B) (added by OPEN FOIA Act of 2009, Pub. L. No. 111-83, tit. V, 564, 123 Stat. 2184 (2009)). Here, the statutes invoked by government were enacted well before the date of that amendment.


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applicability depends less on the detailed factual contents of specific documents; the sole issue

for decision is the existence of a relevant statute and the inclusion of withheld material within the

statutes coverage. Id. (quoting Goland, 607 F.2d at 350). DIA has withheld information

pursuant to two Exemption 3 statutes here.

First, DIA invokes 10 U.S.C. 424 as an Exemption 3 statute. The statute provides that:

(a) Exemption from disclosure.--Except as required by the President or as provided in subsection (c), no provision of law shall be construed to require the disclosure of--

(1) the organization or any function of an organization of the Department of Defense named in subsection (b); or (2) the number of persons employed by or assigned or detailed to any such organization or the name, official title, occupational series, grade, or salary of any such person.

10 U.S.C. 424. DIA is among three organizations listed in 10 U.S.C. 424(b), and the statute

plainly qualifies as Exemption 3 authority. See, e.g., Miller v. Dept of Justice, 562 F. Supp. 2d

82, 112 (D.D.C. 2008) (applying 10 U.S.C. 424 to Exemption 3 and upholding withholding of

documents); Larson v. Dept of State, Civ. No. 02-1937 (PLF), 2005 WL 3276303, at * 15

(D.D.C. Aug. 10, 2005) (same). DIA determined that information contained within some of the

responsive records here is exempt under 424. DIA thus properly withheld the names, office

affiliations, contact information, and titles of DIA personnel, as well as functions of DIA, given

that the release of such information would identify DIA employees, and would also reveal part

of the Agencys organizational structure, as well as sensitive DIA functions. Williams Decl.

18.

DIA also invokes Section 102A(i)(1) of the National Security Act of 1947, as amended,

as justification for its protection of information pertaining to intelligence sources and methods.

Williams Decl. 19. That provision states that the Director of National Intelligence shall

protect intelligence sources and methods from unauthorized disclosure. 50 U.S.C. 403-


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1(i)(1).2 That statute qualifies as a withholding statute under FOIA Exemption 3, see, e.g.,

ACLU v. Dept of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011), and the Supreme Court has

recognized the wide-ranging authority provided by the National Security Act, entrusting the

agency to weigh the variety of complex and subtle factors in determining whether disclosure of

information may lead to an unacceptable risk of compromising the Agencys intelligence-

gathering process. Sims, 471 U.S. at 180. Indeed, rather than place any limit on the scope of

the National Security Act, Congress simply and pointedly protected all sources of intelligence

that provide, or are engaged to provide, information the Agency needs to perform its statutory

duties with respect to foreign intelligence. Id. at 169-70. For the same reasons, DIA must

invoke the protective shield of the National Security Act to protect information pertaining to

intelligence sources and methods in all the responsive records. See Williams Decl. 20; accord

Leatherwood Decl. 13-15.

Notably, the mandate to withhold information pursuant to the National Security Act is

broader than the authority to withhold information pursuant to FOIA exemption 1 and Executive

Order 13,526. Cf. Gardels, 689 F.2d at 1107 (noting that the executive order governing

classification of documents was not designed to incorporate into its coverage the CIAs full

statutory power to protect all of its intelligence sources and methods). This is because, unlike

section 1.1(a)(4) of E.O. 13,526, the National Security Act does not require NSA to determine

that the disclosure of the information would be expected to result in damage to the national 2 While the text of the statute speaks of the Director of National Intelligence or, prior to 2004, of the Director of Central Intelligence, see 50 U.S.C. 403-3(c)(7) (2001) the Government has long taken the position that any member of the intelligence community may assert the National Security Act to protect intelligence sources and methods, and courts have regularly upheld other agencies assertions of that Act in support of Exemption 3 withholdings, including those of DIA. See, e.g., Sack v. CIA, --- F.Supp.2d ----, Civ. No. 12-244 (EGS), 2014 WL 3375568, *11-*12 (D.D.C. July 10, 2014) (DIA); Larson v. Dept of State, 565 F.3d 857, 86869 (D.C. Cir. 2009) (National Security Agency); Krikorian v. Dept of State, 984 F.2d 461, 46566 (D.C. Cir. 1993) (Department of State); Schoenman v. FBI, 763 F. Supp. 2d 173, 193 n.12 (D.D.C. 2011) (DOJ on behalf of FBI).


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security. Compare 50 U.S.C. 403-1(i)(1), with E.O. 13,526 1.1(a)(4); see also

Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 n.3 (D.C. Cir. 2003) (Because

we conclude that the Agency easily establishes that the records . . . are exempt from disclosure

under Exemption 3, we do not consider the applicability of Exemption 1.). Congress has

already made that determination by enacting these statutes. See Hayden v. NSA, 608 F.2d 1381,

1390 (D.C. Cir. 1979).

C. Defendant Properly Withheld Information Subject to the Deliberative Process Privilege Pursuant to Exemption 5.

Defendant withheld information in some records pursuant to FOIA Exemption 5, which

protects from disclosure inter-agency or intra-agency memorandums or letters which would not

be available by law to a party . . . in litigation with the agency. 5 U.S.C. 552(b)(5). Records

are exempt from disclosure if they would be normally privileged in the civil discovery context.

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Exemption 5 thus incorporates the

protections that are available to an agency in civil litigation, including the deliberative process

privilege. See Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).

The deliberative process privilege applies to decisionmaking of executive officials

generally, and protects documents containing deliberations that are part of the process by which

government decisions are formulated. In re Sealed Case, 121 F.3d 729, 737, 745 (D.C. Cir.

1997). The purpose of the deliberative process privilege is to prevent injury to the quality of

agency decisions, Sears, Roebuck & Co., 421 U.S. at 151, by encouraging full and frank

discussion of legal and policy matters within the government, preventing premature disclosure of

proposed policies, and avoiding public confusion that may result from disclosure of rationales

that were not ultimately grounds for agency action. See Mapother v. Dept of Justice, 3 F.3d

1533, 1537 (D.C. Cir. 1993); Russell v. Dept of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir.


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1982) (en banc). The deliberative process privilege rests on the obvious realization that officials

will not communicate candidly among themselves if each remark is a potential item of discovery

and front page news, and its object is to enhance the quality of agency decision by protecting

open and frank discussion among those who make them within the Government. See Dept of

Interior v. Klamath Water Users Prot. Assn, 532 U.S. 1, 8-9 (2001) (internal citations and

quotations omitted).

The deliberative process privilege shields government materials that are (1) predecisional

and (2) deliberative. See Tax Analysts, 117 F.3d at 616. A document is predecisional if it was

generated before the adoption of an agency policy and it is deliberative if it reflects the give-

and-take of the consultative process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d

854, 866 (D.C. Cir. 1980). To show that a document is predecisional, the agency need not

identify a specific final agency decision; rather, it is sufficient to establish what deliberative

process is involved, and the role played by the documents in issue in the course of that process.

Heggestad v. Dept of Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States, 617

F.2d at 868). The privilege therefore applies broadly to recommendations, draft documents,

proposals, suggestions, and other subjective documents which reflect the personal opinions of the

writer rather than the policy of the agency. Coastal States, 617 F.2d at 866.

DIA has withheld deliberative process privileged information from 111 of the 112

responsive documents all but the damage assessment itself. Williams Decl. 22. As Ms.

Williams testifies:

All 111 records were created in an attempt to assess the impact of the unauthorized disclosure of the classified information by former NSA contractor, Edward Snowden, and supply a recommendation on any future action that may necessary to remedy any damage that may have occurred as a result of Snowdens actions. These documents contain recommendations and comments regarding the impact assessment which were originated from employees working within various


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components of DIA and other government employees working as part of the DOD Information Review Take Force. Accordingly, these documents are predecisional because they were created prior to any decision or decisions on actions to remedy damage resulting from the leaks by Edward Snowden. They are deliberative because, as noted, they contain discussions and recommendations regarding immediate action to be taken to alleviate the effects of sensitive information already made available to the public, as well as potential action to be taken to alleviate any possible damage that future release of sensitive information may have. Release of this information would expose the Governments decision making process in such a way that would discourage future discussion and undermine the United States ability to rectify or mitigate any damage caused by the disclosure of sensitive information.

Id. Thus, because these documents reflect internal deliberations on the advisability of a[]

particular course of action, they are deliberative and exempt from FOIA disclosure. Public

Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 875 (D.C. Cir. 2009); see 5 U.S.C.

552(b)(5).

D. Defendant Properly Withheld Individuals Personal Information Pursuant to FOIA Exemption 6.

FOIA Exemption 6 protects personnel and medical files and similar files the disclosure

of which would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C.

552(b)(6). The Supreme Court has adopted a broad construction of the privacy interests

protected by Exemption 6. In Dept of Justice v. Reporters Committee for Freedom of the Press,

489 U.S. 749, 763 (1989), the Court rejected a cramped notion of personal privacy under the

FOIAs exemptions and instead emphasized that privacy encompass[es] the individuals control

of information concerning his or her person. More specifically, the Court noted that [p]rivacy

is the claim of individuals . . . to determine for themselves when, how, and to what extent

information about them is communicated to others. Id. at 764 n.16 (citation omitted). Privacy

is of particular importance in the FOIA context because a disclosure required by the FOIA is a

disclosure to the public at large. See Painting & Drywall Work Preservation Fund, Inc. v. HUD,


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936 F.2d 1300, 1302 (D.C. Cir. 1991) (finding that if information must be released to one

requester, it must be released to all, regardless of the uses to which it might be put).

Exemption 6 requires an agency to balance the individuals right to privacy against the

publics interest in disclosure. See Rose, 425 U.S. at 372. The agency must determine whether

disclosure of the information threatens a protectable privacy interest; if so, the agency must

weigh that privacy interest against the public interest in disclosure, if any. See Reed v. NLRB,

927 F.2d 1249, 1251 (D.C. Cir. 1991). The only relevant public interest to be weighed in this

balance is the extent to which disclosure would serve the core purpose of FOIA, which is

contribut[ing] significantly to public understanding of the operations or activities of the

government. Dept of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)

(emphasis as in Fed. Labor Relations Auth.; internal citation and quotation marks omitted).

Plaintiff bears the burden of demonstrating that the release of the withheld documents would

serve this interest. See Carter v. Dept of Commerce, 830 F.2d 388, 391-92 nn. 8 & 13 (D.C.

Cir. 1987).

Pursuant to this exemption, DIA withheld point of contact information of DIA

employees and employees of other government agencies including the names, phone numbers,

and email addresses of personnel within the Intelligence Community. Williams Decl. 23. The

agency also withheld personal information relating to individuals and their families. Id. DIA

staff weighed the privacy interest of the individual employees against the public interest in

disclosure of this personal information. Id. Thus, the DIA found that there is no public interest

in the limited information subject to Exemption 6, but significant privacy interests of the affected

individuals, who are associated with the Intelligence Community or a particular incident within


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an intelligence agency, and therefore, could be expected to face unwanted contact or harassment

if their personal information is disclosed. Id.

The reviewing officials struck an appropriate balance in weighing these interests. The

general nature of intelligence personnels work implicates a strong privacy interest, as it is well-

established that government officials have a legitimate interest in preserving the secrecy of

matters that conceivably could subject them to annoyance or harassment in either their official or

private lives. Baez v. Dept of Justice, 647 F.2d 1328, 1339 (D.C. Cir. 1980); Lesar v. Dept of

Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (same). This interest is only stronger for personnel

involved in foreign intelligence operations, when disclosure of identities could have

consequences far graver than annoyance and harassment. Furthermore, no meaningful public

interest is served by disclosing information about private citizens that is accumulated in various

governmental files but that reveals little or nothing about an agencys own conduct. Reporters

Comm., 489 U.S. at 773. For example, in Voinche v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996),

the FBI relied on Exemption 6 to withhold certain information that would have identified certain

special agents of the FBI and other federal employees. Finding no reason to believe that the

public [would] obtain a better understanding of the workings of various agencies by learning the

identities of the individuals to whom the information pertained, the court held that the release of

the information would serve no articulable public interest. Id. This Court should similarly

uphold the application of Exemption 6 here to protect the privacy interests of Intelligence

Community employees.

E. Defendant has Released All Non-Exempt, Reasonably Segregable Portions of the Responsive Documents.

FOIA provides that [a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions which are exempt under this


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subsection. 5 U.S.C. 552(b)(9). This provision does not require disclosure of records in

which the non-exempt information that remains is meaningless. See, e.g., Natl Sec. Archive

Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220-21 (D.D.C. 2005) (concluding that no reasonably

segregable information exists because the non-exempt information would produce only

incomplete, fragmented, unintelligible sentences composed of isolated, meaningless words.).

The question of segregability is by necessity subjective and context-specific, turning upon the

nature of the document in question and the information contained therein. An agency need not,

for instance, commit significant time and resources to the separation of disjointed words,

phrases, or even sentences which taken separately or together have minimal or no information

content. Schoenman v. FBI, 763 F. Supp. 2d. 173, 202 (D.D.C. 2011) (quoting Mead Data v.

Dept of the Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977)).

The Government has reviewed the withheld material and disclosed all non-exempt

information that reasonably could be disclosed. See Williams Decl. 24-25, Leatherwood

Decl. 22-23. Accordingly, defendant has produced all reasonably segregable portion[s] of

the responsive records. 5 U.S.C. 552(b). See, e.g., Loving v. Dept of Def., 496 F. Supp. 2d

101, 110 (D.D.C. 2007) (holding that governments declaration and supporting material are

sufficient to satisfy its burden to show with reasonable specificity why the document cannot be

further segregated, where declaration averred that agency had released to plaintiff all material

that could be reasonably segregated) (quoting Johnson v. Exec. Office for U.S. Attorneys, 310

F.3d 771, 776 (D.C. Cir. 2002)).

F. Defendants Search for Responsive Records Satisfies FOIA.

Defendant is also entitled to summary judgment on the adequacy of its search for any

records responsive to plaintiffs request. As noted, an agency can show that it discharged its


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obligations under FOIA and is entitled to summary judgment by submitting declarations that

demonstrate that it has conducted a search reasonably calculated to uncover all relevant

documents. Weisberg, 745 F.2d at 1485 (citations and internal quotations omitted). There is

no requirement that an agency search every record system. Oglesby, 920 F.2d at 68. Moreover,

a failure to uncover a responsive document does not render the search inadequate; the issue to

be resolved is not whether there might exist any . . . documents possibly responsive to the

request, but rather whether the search for those documents was adequate. Weisberg, 745 F.2d at

1485 (citation omitted); see also Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986)

(search is not presumed unreasonable simply because it fails to produce all relevant material);

Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (agency need not demonstrate that all

responsive documents were found and that no other relevant documents could possibly exist).

Conducting a reasonable search is a process that requires both systemic and case-specific

exercises of discretion and administrative judgment and expertise and is hardly an area in

which the courts should attempt to micro manage the executive branch. Schrecker v. Dept of

Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (quoting Johnson v. Exec. Office for U.S. Attorneys,

310 F.3d 771, 776 (D.C. Cir. 2002)).

In evaluating the adequacy of a search, courts accord agency affidavits a presumption of

good faith which 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 and internal quotation marks omitted); see also Ground Saucer Watch, Inc. v.

CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (same). Declarations should be sufficiently detailed,

but [t]he standard . . . is not meticulous documentation [of] the details of an epic search. Tex.

Indep. Producers Legal Action Assn v. IRS, 605 F. Supp. 538, 547 (D.D.C. 1984) (quoting


-25-

Perry, 684 F.2d at 127), affd in part, revd in part on other grounds, 802 F.2d 1483 (D.C. Cir.

1986). To establish the sufficiency of its search, the agencys affidavits therefore need only

explain the scope and method of the search in reasonable detail. Kidd v. Dept of Justice,

362 F. Supp. 2d 291, 295 (D.D.C. 2005) (quoting Perry, 684 F.2d at 127). The agency is not

required to search every record system, but need only search those systems in which it believes

responsive records are likely to be located. See W. Ctr. for Journalism v. IRS, 116 F. Supp. 2d 1,

9 (D.D.C. 2000); Roberts v. Dept of Justice, No. 92-1707, 1995 WL 356320, at *1 (D.D.C. Jan.

29, 1993).

The description of defendants search for responsive records in Ms. Williams declaration

plainly meets these standards. As Ms. Williams explains, all records responsive to plaintiffs

FOIA request the damage assessment itself and any records referencing the damage assessment

were required to be maintained in, and therefore could reasonably be expected to be found only

in, the compartmented files of the Directorate of Operations Task Force. Williams Decl. 8-

10. The Task Forces records officer and technical lead conducted a thorough search of those

records for the damage assessment, which he located, and any records referencing the damage

assessment, of which he located 111. Id. 10. The records officer examined all of the Task

Forces files to ensure he uncovered every document responsive to plaintiffs request. Id.

Defendants search for responsive records was reasonable and adequate under FOIA.

Defendant is, therefore, entitled to summary judgment on the adequacy of its search. See, e.g.,

Weisberg, 745 F.2d at 1485.

G. Plaintiffs Claim as to the Timeliness of Defendants Response is Moot.

Plaintiffs Complaint includes allegations that defendant failed to comply with the time

limits of the FOIA. See Compl. 22, 24, 27-28. When, as here, a requester alleges that an


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agency has failed to issue a timely response, and the agency later responds and produces the

nonexempt records, claims regarding the timeliness of the response are moot. See Tijerina v.

Walters, 821 F.2d 789, 799 (D.C. Cir. 1987); Perry, 684 F.2d 121, 125 (D.C. Cir. 1982). Since

Defendants have responded to plaintiffs request, any claims concerning the timeliness of that

response are, accordingly, moot. Id.

CONCLUSION

For all of the foregoing reasons, the Court should grant defendants Motion for Summary

Judgment.

Dated February 9, 2014 Respectfully submitted,

JOYCE R. BRANDA Acting Assistant Attorney General RONALD C. MACHEN United States Attorney ELIZABETH J. SHAPIRO Deputy Branch Director /s/ Steven Y. Bressler STEVEN Y. BRESSLER Senior Counsel U.S. Department of Justice, Civil Division Ben Franklin Station, P.O. Box 833 Washington, D.C. 20044 (202) 305-0167 [email protected] Counsel for Defendant


Government Declarations in Snowden Damage Assessment FOIA Case

Documents

tsc document

defendant case

tsc plaintiff

united states district

department of justice

bressler senior counsel

summary judgment joyce

support of defendants