Nsa Vice Snowden Emails_redacted

8/11/2019 Nsa Vice Snowden Emails_redacted

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, )) Case No. 1:14-cv-0919-KBJ

Plaintiff, ))

v. )

)NATIONAL SECURITY AGENCY, )

)

Defendant. )____________________________________)

DEFENDANTS STATEMENT OF MATERIAL FACTS

AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to LCvR 7(h), defendant, the National Security Agency (NSA), submits this

Statement of Material Facts as to Which There is No Genuine Dispute.

1. Plaintiff submitted a FOIA request to the NSA on April 8, 2014, seeking

disclosure of any and all emails written by former NSA contractor Edward Snowden in which

Mr. Snowden contacted agency officials through email to raise concerns about NSA programs.

SeeCompl. 12, Answer 12.

2. On June 23, 2014, the NSA responded to plaintiffs request by informing him

that, inter alia, his request has been processed under the provisions of the FOIA. A thorough

search of our files was conducted, but there are no documents indicating that Mr. Snowden

contacted agency officials to raise concerns about NSA programs. Answer 14; see also

Declaration of David J. Sherman 8.

3. As a courtesy, the NSA also provided plaintiff with an email Mr. Snowden had

sent to the NSA Office of General Counsel asking about the hierarchy of legal authorities

governing NSA activities. Sherman Decl. 8.

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4. That email did not raise concerns about NSA programs.Id.; see alsoCompl.

12, Answer 12.

5.

Following unauthorized disclosures of classified information in June 2013, NSA

conducted a comprehensive investigation. Sherman Decl. 11.

6.

This investigation included searches of any records where emails by Mr. Snowden

raising concerns about NSA programs would be expected to be found within the agency. Id.

16.

7.

This investigation was conducted after Mr. Snowden had severed his contractor

relationship with the NSA. Id. 17.

8.

As part of its comprehensive investigation, NSA searched all of Mr. Snowdens

email available on NSAs classified and unclassified systems, including sent and received email

from his inbox as well as email restored from back-up tapes. Sherman Decl. 11.

9.

Any email written by Mr. Snowden to raise concerns about NSA programs

through official channels most likely would have been located in Mr. Snowdens email

account or back-up tapes of his emails. Id. 16.

10. The NSA also conducted additional searches in the agencys Office of General

Counsel, Office of the Inspector General, Office of the Director of Compliance, Signals

Intelligence Directorate Office of Oversight and Compliance, the NSA/CSS Threat Operations

Center where Mr. Snowden had worked in Hawaii, and NSA Associate Directorate for Security

and Counterintelligence (ADS&CI) for any emails by Mr. Snowden that raised concerns about

NSA programs. Id. 12-15.

11.

The Office of General Counsel directed its staff to each search their individual

emails for email to or from Mr. Snowden. Id. 12.

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12. The Office of Inspector General conducted an advanced search of its records of

complaints and grievances seeking any contact from anyone with the last name Snowden. Id.

13.

The Office of the Director of Compliance staff searched their official email,

contacts, and correspondence for any contacts from Mr. Snowden. Id.

14.

The Signals Intelligence Directorate Office of Oversight and Compliance

personnel searched their official email accounts for any emails containing Mr. Snowdens name.

Id. 13.

15.

The NSA/CSS Threat Operations Center personnel also searched their email

records for any email from Mr. Snowden. Id. 14.

16.

The NSA Associate Directorate for Security and Counterintelligence

(ADS&CI) searched in several ways for emails from Mr. Snowden raising concerns about

NSA programs, including by reviewing notes of interviews of NSA affiliates who responded to a

June 10, 2013 message to everyone in the agency with an NSA email account asking anyone

who had contact with Mr. Snowden to report those contacts to ADS&CI. Id. 15.

17.

These multiple searches did not identify any email by Mr. Snowden responsive to

plaintiffs request, that is, in which he raised concerns about NSA programs. Id. 12-15.

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Dated September 12, 2014 Respectfully submitted,

STUART F. DELERY

Assistant Attorney General

RONALD C. MACHENUnited States Attorney

ELIZABETH J. SHAPIRO

Deputy Branch Director

/s/ Steven Y. Bressler

STEVEN Y. BRESSLER

Senior CounselU.S. Department of Justice, Civil Division

Ben Franklin Station, P.O. Box 833

Washington, D.C. 20044(202) [email protected]

Counsel for Defendant

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Plaintiff, ))

v. )


)

Defendant. )____________________________________)

MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff in this Freedom of Information Act (FOIA) case, Jason Leopold, requested

that defendant, the National Security Agency (NSA), disclose to him any and all emails

written by former NSA contractor Edward Snowden in which Mr. Snowden contacted agency

officials through email to raise concerns about NSA programs. SeeComplaint 12. The NSA

responded to plaintiffs request by informing him that it conducted a thorough search of its files

but found no responsive records. SeeAnswer 14.

Plaintiff challenges the sufficiency of the NSAs search for responsive documents. Any

such challenge is meritless, however. As set forth in the accompanying declaration of a senior

NSA official, David J. Sherman, the NSA conducted an extensive search reasonably calculated

to uncover any responsive records. Indeed, the NSA searched not only all of Mr. Snowdens

emails, including on back-up tapes, but also searched the files of every office that would have

received a responsive email, if one existed. The NSAs search more than meets the requirements

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of FOIA, and the Court should, accordingly, grant defendants motion and enter summary

judgment for the NSA.

BACKGROUND

Plaintiff submitted a FOIA request to the NSA on April 8, 2014, seeking disclosure of

any and all emails written by former NSA contractor Edward Snowden in which Mr. Snowden

contacted agency officials through email to raise concerns about NSA programs. SeeCompl.

12 (quoting Apr. 8, 2014 FOIA req.), Answer 12. On June 23, 2014, the NSA responded to

plaintiffs request by informing him that, inter alia, his request has been processed under the

provisions of the FOIA. A thorough search of our files was conducted, but there are no

documents indicating that Mr. Snowden contacted agency officials to raise concerns about NSA

programs. Answer 14; see alsoDeclaration of David J. Sherman 8. As a courtesy, the NSA

also provided plaintiff with an email Mr. Snowden had sent to the NSA Office of General

Counsel asking about the hierarchy of legal authorities governing NSA activities. Sherman Decl.

8; Exh. D to Sherman Decl. at 2. Because that email did not raise concerns about NSA

programs, it was not responsive to plaintiffs FOIA request. Id.; see alsoCompl. 12 (quoting

April 8, 2014 FOIA req.), Answer 14. Plaintiff had filed his Complaint initiating this civil

action on May 29, 2014, prior to receiving the NSAs response. See generallyCompl.; see also

Compl. 14; Sherman Decl. 7.

ARGUMENT

I. Standard of Review

The Freedom of Information Act, 5 U.S.C. 552, requires agencies to release documents

responsive to a properly submitted request, except for those documents (or portions of

documents) subject to any of the statutory exemptions to the general disclosure obligation. See5

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U.S.C. 552(a)(3), (b)(1)-(b)(9). When a requester challenges the adequacy of an agencys

search, [i]n order to obtain summary judgment, the agency must show that it made a good faith

effort to conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested. Oglesby v. Dept of the Army, 920 F.2d 57, 68

(D.C. Cir. 1990). The Court may then grant summary judgment based on information provided

in [a] reasonably detailed affidavit, setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such records exist)

were searched. ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)

(quoting Oglesby, 920 F.2d at 68) (alteration in original);Meeropol v. Meese, 790 F.2d 942, 952

(D.C. Cir. 1986);Riccardi v. Dept of Justice, --- F. Supp. 2d ----, Civ. No. 12-1887-KBJ, 2014

WL 1254616, *3 (D.D.C. Mar. 27, 2014). Such agency affidavits attesting to a reasonable

search are afforded a presumption of good faith, and can be rebutted only with evidence that

the agency's search was not made in good faith. Riccardi, 2014 WL 1254616 at *3 (citations

omitted).

Reasonableness, not perfection, is therefore the Courts guiding principle in determining

the adequacy of a FOIA search. Id.; Campbell v. Dept of Justice, 164 F.3d 20, 27 (D.C. Cir.

1998). Where, as here, an agency does not locate records responsive to a FOIA request and the

requester challenges the search, the agency is entitled to summary judgment when it shows by

affidavit that its search was reasonable. SeeOglesby, 920 F.2d at 68;Riccardi, 2014 WL

1254616 at *4; Concepcin v. FBI, 606 F. Supp. 2d 14, 30 (D.D.C. 2009).

II. The NSA is Entitled to Summary Judgment Because it Conducted a

Reasonable Search for Responsive Records

A senior NSA official, David J. Sherman, provides a detailed description of NSAs

search for responsive records in his attached declaration. As explained below and demonstrated

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by Mr. Shermans testimony, NSAs search was reasonable and meets the requirements of FOIA.

The Court should, accordingly, enter summary judgment for defendant.

As noted, an agency can show that it discharged its 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 v. Dept of Justice,

745 F.2d 1476, 1485 (D.C. Cir. 1984) (internal quotations and citations 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

(internal citation omitted); see also Meeropol, 790 F.2d at 952-53 (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) (quotingJohnson 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) (internal quotation and citation omitted); see also Ground Saucer Watch, Inc. v. CIA,

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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

Perry, 684 F.2d at 127). 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. 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 NSAs search for responsive records here, and Mr. Shermans declaration describing

that search, easily meet these standards. Following the unauthorized disclosures of classified

information in June 2013, NSA conducted a comprehensive investigation. Sherman Decl.

11. As Mr. Sherman explains, this investigation included searches of any records where emails

by Mr. Snowden raising concerns about NSA programs would be expected to be found within

the agency. Moreover, it was conducted after Mr. Snowden had severed his contractor

relationship with the NSA. Id. 17; cf.Houghton v. Dept of State, 881 F. Supp. 2d 37 (D.D.C.

2012) (search was adequate where, inter alia, agency relied on fact that certain responsive emails

would have been uncovered by prior searches, if they existed);Roman v. NSA, 2012 WL 569747,

*6 (E.D.N.Y. Feb. 22, 2012) (in responding to new FOIA request on a topic, agency properly

relied on result of similar search conducted in response to earlier, more detailed FOIA request).

As part of its comprehensive investigation, NSA searched all of Mr. Snowdens email

available on NSAs classified and unclassified systems. Sherman Decl. 11. This included the

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sent, received, and deleted email, from Mr. Snowdens email account as well as email restored

from back-up tapes. Id. Any email written by Mr. Snowden to raise concerns about NSA

programs through official channels most likely would have been located in Mr. Snowdens

email account or back-up tapes of his emails. Id. 16. Nonetheless, the NSA went beyond

searching Mr. Snowdens sent, received, and deleted emails to also conduct searches in the

agencys Office of General Counsel, Office of the Inspector General, and Office of the Director

of Compliance for any emails by Mr. Snowden that raised concerns about NSA programs. Id.

12. The Office of General Counsel directed its staff to each search their individual emails for

email to or from Mr. Snowden. Id. The Office of Inspector General conducted an advanced

search of its records of complaints and grievances seeking any contact from anyone with the last

name Snowden. Id. And the Compliance staff searched their official email, contacts, and

correspondence for any contacts from Mr. Snowden. Id. These searches did not identify any

email by Mr. Snowden responsive to plaintiffs request, that is, in which he raised concerns

about NSA programs. Id.

The NSA searched other offices records, as well. Because the unauthorized disclosures

involved signals intelligence information, the Signals Intelligence Directorate Office of

Oversight and Compliance was also tasked to perform a search. Id. 13. Its personnel searched

their official email accounts using Mr. Snowdens name, but did not identify any email written

by Mr. Snowden in which he contacted agency officials to raise concerns about NSA programs.

Id. Likewise, the NSA/CSS Threat Operations Center where Mr. Snowden had worked in

Hawaii was tasked to search for any emails by Mr. Snowden raising concerns about NSA

programs. Id. 14. They also searched their email records for any email from Mr. Snowden, but

found none raising concerns about NSA programs. Id.

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Finally, the NSA Associate Directorate for Security and Counterintelligence

(ADS&CI) searched in several ways for emails from Mr. Snowden raising concerns about

NSA programs. Id. 15. Among other things, they reviewed notes of interviews of NSA

affiliates who responded to a June 10, 2013 message to everyone in the agency with an NSA

email account asking anyone who had contact with Mr. Snowden to report those contacts to

ADS&CI. Id. ADS&CI did not find any email, or indication of an email, written by Mr.

Snowden responsive to plaintiffs request. Id.

As Mr. Sherman has described in detail, the NSA thus searched Mr. Snowdens NSA

email account and its back-up tapes of that account where any email responsive to plaintiffs

FOIA request would likely be found. Id. 16. The NSA also searched the files of all offices

where such an email would have been received. Seeid. Accordingly, as set forth above and in

more detail in Mr. Shermans declaration filed herewith, the NSA made a good faith effort to

search for the records requested, and its methods were reasonably expected to produce the

information requested, Kidd, 362 F. Supp. 2d at 294 (internal quotations and citation omitted).

Mr. Shermans declaration provides in reasonable detail the scope and method of the search

conducted by the agency and it therefore suffice[s] to demonstrate compliance with FOIA.

SeePerry, 684 F.2d at 127.

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CONCLUSION

Accordingly, for all of the foregoing reasons, the Court should grant the NSAs Motion

for Summary Judgment and enter judgment for defendant.


STUART F. DELERY


RONALD C. MACHEN

United States Attorney

ELIZABETH J. SHAPIRO

Deputy Branch Director


STEVEN Y. BRESSLER

Senior Counsel

U.S. Department of Justice, Civil DivisionBen Franklin Station, P.O. Box 833

Washington, D.C. 20044

(202) [email protected]


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Plaintiff, ))

v. )


)

Defendant. )____________________________________)

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Defendant, the National Security Agency (NSA), respectfully moves this Court to enter

summary judgment in this action for defendant pursuant to Federal Rule of Civil Procedure 56

and for the reasons set forth in the accompanying Memorandum of Points and Authorities.


STUART F. DELERY


RONALD C. MACHEN

United States Attorney

ELIZABETH J. SHAPIRODeputy Branch Director


STEVEN Y. BRESSLER

Senior Counsel

U.S. Department of Justice, Civil DivisionBen Franklin Station, P.O. Box 833

Washington, D.C. 20044

(202) [email protected]


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Plaintiff, ))

v. )


)

Defendant. )____________________________________)

[PROPOSED] ORDER

Upon consideration of the motion by defendant, the National Security Agency (NSA),

for summary judgment in this action, the memoranda in support and opposition, and the entire

record herein, it is hereby ORDERED that defendants Motion is GRANTED. This case is

dismissed with prejudice. The Clerk is directed to enter judgment for defendant on a separate

paper pursuant to Fed. R. Civ. P. 58.

Dated ______________________

Hon. Ketanji Brown JacksonUnited States District Judge

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Nsa Vice Snowden Emails_redacted

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