Electronic Frontier Foundation v. National Security Agency et al

Filing 41

ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT by Judge Richard Seeborg denying 34 Motion for Summary Judgment; granting 32 Motion for Summary Judgment.(cl, COURT STAFF) (Filed on 3/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELECTRONIC FRONTIER
FOUNDATION,
Plaintiff,

United States District Court
Northern District of California

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Case No. 14-cv-03010-RS
ORDER RE CROSS MOTIONS FOR
SUMMARY JUDGMENT

v.
NATIONAL SECURITY AGENCY, et al.,
Defendants.

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I. INTRODUCTION

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Plaintiff Electronic Frontier Foundation (“EFF”) brought this action under the Freedom of

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Information Act, 5 U.S.C. § 552 (2012) (“FOIA”) to obtain documents relating to the National

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Security Agency’s development and implementation of the so-called “Vulnerabilities Equity

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Process”—a set of protocols and principles used by the government in deciding whether and when

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to disclose computer security flaws. By the time the parties presented their cross-motions for

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summary judgment, only a single document remained in dispute. That document is entitled,

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“Commercial and Government Information Technology and Industrial Control Product or System

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Vulnerabilities Equities Policy and Process” (“the VEP Document”). It was produced by the

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government to EFF in this litigation, with certain redactions. Although the government lifted

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some of the redactions during the course of this motion practice, EFF contends the remaining

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redactions should also be removed.

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At EFF’s urging, the Court has reviewed the VEP Document in camera.1 For the reasons

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set out below, the remaining redactions protect information that is exempt from disclosure under

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FOIA. Accordingly, the government’s motion for summary judgment will be granted, and EFF’s

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cross-motion denied.

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II. LEGAL STANDARD

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“FOIA ‘was enacted to facilitate public access to Government documents.’” Lahr v. Nat’l

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Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quoting U.S. Dep’t of State v. Ray, 502

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U.S. 164, 173 (1991)). Congress designed FOIA “to pierce the veil of administrative secrecy and

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open agency action to the light of public scrutiny.” Ray, 502 U.S. at 173 (internal quotation marks

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United States District Court
Northern District of California

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omitted). Consequently, there is a “strong presumption in favor of disclosure,” id., and

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“exemptions should be interpreted narrowly,” Lahr, 569 F.3d at 973 (internal quotation marks

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omitted).
“Summary judgment is the procedural vehicle by which nearly all FOIA cases are

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resolved.” Los Angeles Times Commc’ns, LLC v. Dep’t of the Army, 442 F.Supp.2d 880, 893

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(C.D.Cal.2006). The usual summary judgment standard does not extend to FOIA cases because

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the facts are rarely in dispute and courts generally need not resolve whether there is a genuine

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issue of material fact. Minier v. Cent. Intel. Agency, 88 F.3d 796, 800 (9th Cir.1996).
In cases such as this, the task of the court is to determine whether any requested documents

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(or portions thereof) that have been withheld fall within the claimed exemptions, based on a

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Vaughn index, the accompanying declarations, and in some instances an in camera review.

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EFF argued that in camera review was particularly appropriate and necessary in this instance
because, in its view, the government’s declarations should be viewed with distrust, given the
overbreadth of the original redactions to the VEP document. Whether or not the government may
have initially made some redactions without an adequate basis to do so, there is no indication of
bad faith or even of recklessness, and the process by which the government reconsiders its
position in light of a FOIA plaintiff’s arguments is one that should not be penalized. Accordingly,
while in camera review of the VEP document ultimately appeared appropriate under all the
circumstances, it was not motivated by any specific distrust of the government’s declarations.

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CASE NO.

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14-cv-03010-RS

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Schiffer v. F.B.I., 78 F.3d 1405, 1409 (9th Cir. 1996). The court must also examine whether the

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government has satisfied its burden of establishing that “all reasonable segregable portions of the

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document[s] have been segregated and disclosed.” Pac. Fisheries, Inc. v. United States, 539 F.3d

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1143, 1148 (9th Cir. 2008); 5 U.S.C. § 522(a)(4)(B), (b). In this instance, prior to the hearing the

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court had reviewed in camera a partially-classified declaration describing the grounds on which

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redactions had been made to the VEP document. At EFF’s urging, and without objection from the

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government, the court subsequently conducted an in camera review of the complete classified

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VEP document.

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III. DISCUSSION

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United States District Court
Northern District of California

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A. Exemptions 1 and 3

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Much of the redacted material in the VEP document has been withheld under Exemptions

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1 and or 3 of FOIA, 5 U.S.C. § 522(b)(1) and (3), which relate to classified information and other

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sensitive intelligence materials. The issue in this case is not whether the withheld information

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ordinarily would fall within the scope of these exemptions, but whether the government has lost

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the right to claim the exemptions as the result of prior official public disclosures of the same basic

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information.

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When information has been “officially acknowledged,” its disclosure may be compelled

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even over the government’s otherwise valid exemption claim. Fitzgibbon v. C.I.A., 911 F.2d 755,

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765 (D.C. Cir. 1990). To be “officially acknowledged,” however, the information requested must

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(1) be as specific as the information previously released, (2) “match” the information previously

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disclosed, and (3) have been made public through an official and documented disclosure. Id.

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Here, EFF (like most FOIA plaintiffs) is operating at the disadvantage of not knowing with

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certainty what information lies beneath the redactions in the VEP document. Based on context,

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EFF has constructed an argument that the withheld information likely matches and is of equivalent

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specificity to certain prior official disclosures. Although EFF’s speculation was not necessarily

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unreasonable given what it could view in the VEP document, in camera review of the classified

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CASE NO.

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declaration, subsequently confirmed by in camera review of the entire VEP document itself,

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established that the redacted information has not been previously “officially acknowledged” or

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disclosed such that the exemptions may no longer be claimed.2

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B. Exemption 5

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FOIA does not require the government to disclose “inter-agency or intra-agency

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memorandums or letters which would not be available by law to a party other than an agency in

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litigation with the agency.” 5 U.S.C. § 522(b)(5). “Exemption 5 shields those documents, and

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only those documents, normally privileged in the civil discovery context,” including documents

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covered by attorney-client and deliberative-process privileges. Lahr, 569 F.3d at 979 (internal

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Northern District of California

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quotation marks omitted) (deliberative-process privilege); see also NLRB v. Sears, Roebuck &

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Co., 421 U.S. 132, 154 (1975) (attorney-client privilege).
The applicability of Exemption 5 is in dispute as to two categories of information. First,

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the government has redacted “header” information on the VEP document. EFF argues that even if

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the header information reflects or includes pre-decisional recommendations, upon adoption of the

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VEP document, it is no longer protected. See N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132,

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161 (1975) (“[I]f an agency chooses expressly to adopt or incorporate by reference an intra-agency

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memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that

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memorandum may be withheld only on the ground that it falls within the coverage of some

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exemption other than Exemption 5.”). EFF is not wrong to consider the header as roughly

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analogous to a separate pre-decisional memorandum containing recommendations regarding the

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VEP document. As such, however, it does not lose its protection merely because the VEP

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document was adopted as a final policy. As stated in Sears:

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Plaintiffs correctly observe the test does not require “absolute identity” between the withheld
information and the prior official public disclosure. See New York Times Co. v. Dep’t of Justice,
756 F.3d. 100, 120 (2d Cir. 2014). Nevertheless, the differences in detail and substance here go
beyond what would preclude continued reliance on the exemptions under New York Times.

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Exemption 5, properly construed, calls for disclosure of all opinions
and interpretations which embody the agency’s effective law and
policy, and the withholding of all papers which reflect the agency’s
group thinking in the process of working out its policy and
determining what its law shall be.
421 U.S. at 153 (quotation marks and citations omitted).

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The header here is not an embodiment of the Vulnerabilities Equity Process, but a

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reflection of the “group thinking” involved in “working out” what that policy would be—a policy

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then expressed and embodied in the balance of the VEP document. Had the contents of the header

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been stated on a separate cover memo stapled to the VEP document as it circulated prior to

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adoption, there would be no dispute that Exemption 5 applied. The fact that it was printed on the

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United States District Court
Northern District of California

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top of each page instead does not change the substance of the analysis.
Finally, EFF argues the government may not withhold the names of “small government

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components” mentioned in the VEP document. Although the question is close, under the

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particular circumstances here, the government’s contention that disclosure of those names would

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implicate the deliberate process is persuasive. See, Wolfe v. Dep’t of Health & Human Servs., 839

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F.2d 768, 774 (D.C. Cir. 1988) (“In some circumstances, even material that could be characterized

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as ‘factual’ would so expose the deliberative process that it must be covered by the privilege.”)

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IV. CONCLUSION

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In light of the foregoing discussion, the government’s motion for summary judgment is

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granted, and EFF’s cross-motion is denied. Within 20 days the government shall submit a

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proposed final judgment, approved as to form by EFF.

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IT IS SO ORDERED.

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Dated: March 17, 2016
______________________________________
RICHARD SEEBORG
United States District Judge

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CASE NO.

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14-cv-03010-RS