Wu v. National Geospatial-Intelligence Agency

Filing 42

MEMORANDUM OF DECISION denying 37 Motion for Summary Judgment; granting 38 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 3/8/17. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTINE M. WU,
Plaintiff,
v.
NATIONAL GEOSPATIAL
INTELLIGENCE AGENCY,
Defendant.

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No. 3:14cv1603 (DJS)

MEMORANDUM OF DECISION
The plaintiff, Christine M. Wu (“Wu”), filed this action against the defendant, National
Geospatial Intelligence Agency (“NGA”), in connection with a Freedom of Information Act
(“FOIA”) request Wu had made of NGA. In her Complaint, Wu claims that NGA violated her
rights to information, “including intelligence surveillance,” under FOIA. (Doc. # 1, at 2). Both
parties have filed a motion for summary judgment. For the reasons stated below, Wu’s motion
for summary judgment is denied and NGA’s motion for summary judgment is granted.
A. FACTS
Before reciting the facts which the Court finds to be undisputed, the Court wishes to
address an issue concerning Wu’s filings relating to the motions for summary judgment. The
Rules of the United States District Court for the District of Connecticut contain specific
requirements pertaining to papers filed in support of or in opposition to a motion for summary
judgment. A motion for summary judgment must include a “‘Local Rule 56(a)1 Statement,’
which sets forth in separately numbered paragraphs meeting the requirements of Local Rule
56(a)3 a concise statement of each material fact as to which the moving party contends there is
no genuine issue to be tried.” L. Civ. R. 56(a)1. Papers opposing a motion for summary

judgment must include a “‘Local Rule 56(a)2 Statement,’ which states in separately numbered
paragraphs meeting the requirements of Local Rule 56(a)3 and corresponding to the paragraphs
contained in the moving party's Local Rule 56(a)1 Statement whether each of the facts asserted
by the moving party is admitted or denied.” L. Civ. R. 56(a)2.
Each statement of material fact in a Local Rule 56(a)1 Statement, and each denial of a
fact in a Local Rule 56(a)2 Statement, “must be followed by a specific citation to (1) the affidavit
of a witness competent to testify as to the facts at trial and/or (2) evidence that would be
admissible at trial. . . . The ‘specific citation’ obligation of this Local Rule requires counsel and
pro se parties to cite to specific paragraphs when citing affidavits . . . and to cite to specific pages
when citing to deposition or other transcripts or to documents longer than a single page in
length.” L. Civ. R. 56(a)3. Failure to provide this specific citation “may result in the Court
deeming certain facts that are supported by the evidence admitted . . . .” Id.
NGA’s filings in support of its motion for summary judgment included a Notice to Pro Se
Party Opposing Motion for Summary Judgment (“Notice”)(Doc. # 38-3). This Notice, which is
required to be provided to a party proceeding pro se, i.e., representing oneself without the
assistance of an attorney, specifically informed Wu that she was required to file the papers
required by Rule 56 or run the risk of having the defendant’s motion granted and having her
claims dismissed without further notice if the defendant’s motion shows that it is entitled to
judgment as a matter of law. Attached to the Notice were copies of both the federal and local
rules pertaining to motions for summary judgment.
Wu’s motion for summary judgment did not include a Local Rule 56(a)1 Statement and
her opposition to NGA’s motion did not include a Local Rule 56(a)2 Statement. After Wu filed
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her opposition to its motion, NGA filed a reply in which it pointed out that Wu had failed to file
a Local Rule 56(a)2 Statement and that Local Rule 56, a copy of which had been sent to Wu,
provides in part that “failure to provide specific citations to evidence in the record as required by
this Local Rule may result in the Court deeming certain facts that are supported by the evidence
admitted . . . .” L. Civ. R. 56(a)3. Wu thereafter filed a response to NGA’s reply. Wu’s response
includes a section with the following heading: “Plaintiff did in fact respond to defendant’s Local
Rule 56(a)1 Statement with plaintiff’s response. Defendant quoted Local Rule 56(a)2 which was
to oppose a motion for summary judgment. It does not apply in the argument, because defendant
‘filed’ a summary judgment.” (Doc. # 41, at 1). Wu’s response did not include a Local Rule
56(a)2 Statement.
The Court is well aware that “the submissions of a pro se litigant must be construed
liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Federal
Bureau of Prisons, 470 F.3d 471, 474 (2d. Cir. 2006) (internal quotation marks omitted).
However, “pro se parties are not excused from abiding by the Federal Rules of Civil Procedure.”
Collins v. Experian Credit Reporting Service, No. 3:04CV1905 (MRK), 2006 U.S. Dist. LEXIS
72020, at *3 (D. Conn. Oct. 3, 2006); see McNeil v. United States, 508 U.S. 106, 113 (1993)
(“we have never suggested that procedural rules in ordinary civil litigation should be interpreted
so as to excuse mistakes by those who proceed without counsel”). In this case Wu was advised
on two separate occasions of the need to comply with Local Rule 56 and specifically of the need
to file a Local Rule 56(a)2 Statement in conformance with the requirements of that rule. She
failed to file either a Local Rule 56(a)1 Statement in support of her motion or a Local Rule
56(a)2 Statement in opposition to NGA’s motion. Accordingly, to the extent that NGA’s factual
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assertions are properly supported by the evidence the Court will deem those assertions admitted.
See L. Civ. R. 56(a)3 (“failure to provide specific citations to evidence in the record as required
by this Local Rule may result in the Court deeming certain facts that are supported by the
evidence admitted in accordance with Rule 56(a)1”).
NGA, which is an agency within the Department of Defense, provides geospatialintelligence, i.e., exploitation and analysis of imagery and geospatial information to describe,
assess and visually depict physical objects on the Earth. NGA has limited authority to collect
domestic imagery and does not collect or process any domestic imagery unless it receives an
approved request for collection from an arm of the U.S. government. On March 11, 2014, Wu
submitted the following FOIA request to NGA via email:
Wanted to know if images were produced for, near, or around
the location: 39 Glenbrook Rd., Stamford, CT, via any of your
systems. This would be through an authorized account from the
US Army, accessing your systems that could produce images at
close range (via satellite), and/or heat images of around/inside
dwellings.
Want to know when that was done, frequency, from Dec. 2012
to date. Please check all your image producing systems.

(Doc. # 38-4, at 6). In an email response dated March 12, 2014, NGA acknowledged receipt of
Wu’s FOIA request and informed her that “NGA has a significant number of pending FOIA
requests that prevents a response determination from being made within 20 workdays.” (Id. at
13).
In a follow-up email sent on August 1, 2014, Wu inquired about the status of her request.
NGA sent the following response on that same day:
NGA provides timely, relevant, and accurate geospatial intelligence
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in support of national security. We are not obligated to create records,
only search for government records within this agency.
Based on your request and inquiry of activity at your home address,
neither this agency or any other agency would be authorized to do
so. We have closed your case number based on this email to
your attention.
(Id. at 5). On September 9, 2014, Wu asked for a contact address and information
concerning “an appeal for your agency’s unwillingness to comply with Federally mandated FOIA
request.” (Id. at 4). The record does not reflect any response to this request. On October 29, 2014,
Wu filed the Complaint in this action. NGA was served with the Complaint on September 14,
2015.1
On November 17, 2014, the NGA FOIA Office contacted the NGA Analysis Directorate
(“Directorate”) and requested that the Directorate “search for any documentation that NGA had
collected images at or near the vicinity of 39 Glenbrook Road, Stamford Connecticut between
December 2012 and March 11, 2014.” (Doc. # 38-5, at 5, ¶ 9). With the exception of a few
restricted databases, the Directorate has access to all of NGA’s imagery libraries. The
Directorate’s FOIA Officer2 searched the NGA imagery libraries to which he had access and
“which in most likelihood would have contained the information requested by Ms. Wu, [but]
found no imagery or records.” (Id.). In his detailed affidavit, the FOIA Officer identified the
various NGA libraries included in his search, as well as the techniques utilized in the search. The

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A delay in service on the defendant NGA resulted from the Court not sending the proper
paperwork for service to the plaintiff.
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NGA redacted the name of the Directorate Officer whose affidavit was filed in support
of the motion for summary judgment pursuant to 10 U.S.C. § 424. That statute provides in part
that, “Except as required by the President . . . no provision of law shall be construed to require
the disclosure of . . . the name . . . of any . . . person [within the National Geospatial-Intelligence
Agency].”
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affidavit includes the Officer’s conclusion that “[b]ased upon my search of NGA imagery
libraries, I determined there are no images at or near the vicinity of 39 Glenbrook Road,
Stamford, Connecticut.” (Id. at 6, ¶ 11).
NGA’s Source Directorate is responsible for fulfilling approved requests for domestic
imagery. In response to a request from the NGA Office of General Counsel, NGA Source
Directorate analysts searched NGA libraries for any images produced at or near the vicinity of 39
Glenbrook Road, Stamford, Connecticut between December 2012 and March 2014. An affidavit
from the Director of the Source Directorate identifies the libraries searched and indicates that
those were the libraries that the analysts “determined were likely to contain the records requested
in this FOIA request, if such records existed.” (Doc. # 38-6, at 5, ¶ 8). The affidavit also
describes in detail the search process utilized by the analysts. In the end, “[n]o images were
found by virtue of searching the NGA libraries for images produced by NTM [National
Technical Means].” (Id.).
In addition to imagery collected on national platforms, NGA also maintains licenses with
commercial imagery providers. While NGA is allowed to access the commercial imagery
pursuant to these licensing agreements, NGA does not own this imagery and is prohibited by the
terms of the licensing agreements from releasing this imagery to anyone outside the United States
government unless such release would support a United States government purpose. A search of
commercial platforms by Source Directorate analysts revealed eight commercial imagery records
that had been requested by the United States Coast Guard and included the coordinates for the
address of 39 Glenbrook Road, Stamford, Connecticut. In his affidavit, the Director of the Source
Directorate stated that although NGA had the ability to access these images under the terms of
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the licensing agreement, to the best of his knowledge NGA had not done so.
B. SUMMARY JUDGMENT STANDARD
A motion for summary judgment may be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A “material fact” is one whose resolution will affect the ultimate
determination of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute concerning a material fact is genuine “if evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. The Court “accept[s] as true facts that [are]
undisputed by the parties, and resolve[s] disputed facts in favor of the non-moving plaintiff
where there [is] evidence to support [its] allegations.” Sousa v. Roque, 578 F.3d 164, 166 n.1 (2d
Cir. 2009). “Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
Summary judgment is appropriate if, after discovery, the nonmoving party “failed to
make a sufficient showing on an essential element of her case with respect to which she has the
burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The burden is on the
moving party to demonstrate the absence of any material factual issue genuinely in dispute.”
American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351
(2d Cir. 1981) (internal quotation marks omitted).
“In order to prevail on a motion for summary judgment in a FOIA case, the defending
agency has the burden of showing that its search was adequate and that any withheld documents
fall within an exemption to the FOIA.” Carney v. U.S. Department of Justice, 19 F.3d 807, 812,
(2d Cir. 1994). The agency can satisfy its burden by means of “reasonably detailed affidavit[s],
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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.” Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (internal quotation marks omitted). Such
affidavits “are accorded a presumption of good faith.” Long v. OPM, 692 F.3d 185, 191 (2d Cir.
2012). In order to rebut this presumption, a plaintiff cannot rely on speculative claims, but “must
make a showing of bad faith on the part of the agency sufficient to impugn the agency’s
affidavits or declarations.” Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d
Cir. 1999) (internal quotation marks omitted).
C. DISCUSSION
NGA’s motion is based on its contention that it “conducted a thorough and reasonable
search for records responsive to Wu’s FOIA request and properly informed Wu that no
responsive records exist.” (Doc. # 38-1, at 6). Wu’s motion does not articulate a legal basis upon
which she claims that she is entitled to judgment as a matter of law. Rather, her motion “stat[es]
recommendations for the corrections” of what she describes as a “pervasive FOIA failure by the
government agencies to address requests.” (Doc. # 37, at 2, 1). “I only ask that [NGA] fulfill
their obligations [to] the law and country by fulfilling FOIA requests without fail, and be
corrected if they don’t.” (Id. at 2).
As previously indicated, it is NGA’s burden to show that it conducted an adequate search
for the requested documents, and NGA can meet that burden by means of reasonably detailed
affidavits. The Court has reviewed the affidavits of the NGA Analysis Directorate’s FOIA
Officer and the Director of the Source Directorate and finds that these documents constitute
“reasonably detailed affidavit[s], setting forth the search terms and the type of search performed,
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and averring that all files likely to contain responsive materials (if such records exist) were
searched.” Valencia-Lucena, 180 F.3d at 326 (internal quotation marks omitted). The affidavit
from the Analysis Directorate’s FOIA Officer identifies the five NGA “enterprise image
libraries” that were searched, which, according to the affidavit, would most likely “have
contained the information requested by Ms. Wu . . . .” (Doc. # 38-5, at 4-5, ¶¶ 8, 9). The FOIA
Officer also explains in detail the search terms and methods utilized in the search and attests that
“[b]ased upon my search of NGA imagery libraries, I determined there are no images at or near
the vicinity of 39 Glenbrook Road, Stamford, Connecticut.” (Id. at 5-6).
The affidavit from the Director of the Source Directorate likewise explains in detail the
methods and procedures utilized by analysts within the Source Directorate in the search for any
images responsive to Wu’s FOIA request. “The libraries searched were those which Source
Throughput analysts determined were likely to contain the records requested in this FOIA
request, if such records existed. No images were found by virtue of searching the NGA libraries
for images produced by NTM [National Technical Means].” (Doc. #38-6, at 5, ¶ 8). That
affidavit goes on to explain that NGA also has licenses with commercial imagery providers, and
that, pursuant to the terms of the license agreements with these providers, NGA is allowed to
access the commercial imagery but cannot provide these images to a third party in response to a
FOIA request. The search undertaken by Source Directorate analysts extended to commercial
imagery and revealed the existence of eight commercial images “that contain the derived
coordinates for 39 Glenbrook Road, Stamford Connecticut.” (Id. at 6, ¶ 10). Those commercial
images had been requested by the U.S. Coast Guard for specific purposes related to that agency.
The Director of the Source Directorate attests that these eight commercial images “are not our
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records; nor, to the best of my knowledge, did NGA access these records.” (Id.).
The Court concludes that NGA satisfied its burden of showing that it conducted an
adequate search for the records requested by Wu. The agency’s affidavits are entitled to a
presumption of good faith and Wu has not made “a showing of bad faith on the part of the
agency sufficient to impugn the agency’s affidavits or declarations.” Grand Central Partnership,
Inc., 166 F.3d at 489 (internal quotation marks omitted). In her opposition to NGA’s motion, Wu
posits the theory that while “[i]t was highly likely that the government did not directly or openly
authorize [instances where image-yielding equipment had zoomed in on her address], . . . rouge
[sic] employees could have used the equipment[] they have access to for unlawful or
questionable purposes.” (Doc. #39, at 6, ¶ 9). The presumption of good faith accorded to agency
affidavits “cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” Robert v. Department of Justice, 439 F. App’x 32, 33 (2d
Cir. 2011) (summary order) (internal quotation marks omitted). Wu’s theory about rogue
employees within NGA does not rise above the level of a purely speculative claim. For that
reason, she has failed to rebut the good faith presumption accorded the agency’s affidavits.
Wu’s specific FOIA request was for “images . . . produced for, near, or around the
location: 39 Glenbrook Rd, Stamford, CT, via any of your systems. This would be through an
authorized account3 from the US Army, accessing your systems that could produce images at
close range . . . .” (Doc. #38-4, at 6). NGA searches that the Court has found to be adequate did
not reveal “images . . . produced for, near, or around the location: 39 Glenbrook Rd, Stamford,
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Wu’s contention regarding the unauthorized use of imaging equipment by rogue
employees, discussed above, is contrary to the express language of her request for images
produced “through an authorized account from the US Army.”
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CT via any of [NGA’s] systems.” (Id.). NGA’s search went beyond the specifics of Wu’s request,
i.e., images produced via NGA’s systems through an authorized account from the US Army, and
extended to commercial images that NGA is authorized to access under the terms of license
agreements with commercial imagery providers. That extended search revealed the existence of
eight commercial images that were not NGA images and, to the best of the Director’s knowledge,
had not been accessed by NGA. Under the terms of the license agreements, “NGA cannot
provide the [commercial] images to a third party in response to a FOIA request.” (Doc. #38-6, at
6).
Wu has repeatedly and consistently expressed her view that delays in response and
failures to respond to her FOIA inquiries were intended to discourage her from pursuing her
request. She characterizes this as “a central argument made by the Plaintiff in the complaint.”
(Doc. #39, at 3, ¶ 4). “Defendants’ conduct in responding to [Wu’s] FOIA request . . . cannot be
described as a model of due diligence.” Government Accountability Project v. U.S. Department
of Health and Human Services, 568 F. Supp. 2d 55, 64 (D.D.C. 2008). It was not until after Wu
had filed this action that the searches addressed in the agency’s affidavits were undertaken.
“Nevertheless, so long as [NGA] arrived at its belated determination after an adequate search,
and did not act in bad faith, it is entitled to summary judgment under FOIA. Put simply, the only
relief FOIA makes available to plaintiff is an order directing [NGA] to release responsive records
that were improperly withheld; if none exist, plaintiff has no claim.” Flores v. Department of
Justice, No. 15-CV-2627 (JMA), 2016 U.S. Dist. LEXIS 138858, at *30-31 (E.D.N.Y. Oct. 4,
2016) (citation omitted). “While the Court sympathizes with plaintiff’s frustration concerning
defendant’s delayed and piecemeal response to [her] FOIA Request, plaintiff has now received
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an adequate response, and may not continue this litigation purely to vent [her] disappointment
with the [process and] results.” Id. at *47-48.
CONCLUSION
For the reasons stated above, the plaintiff Wu’s motion for summary judgment (Doc. #
37) is DENIED and the defendant NGA’s motion for summary judgment (Doc. #38) is
GRANTED.
The Clerk is directed to enter Judgment in favor of the defendant against the plaintiff and
close this case.

SO ORDERED this 8th

day of March, 2017.

/s/ DJS
Dominic J. Squatrito
United States District Judge

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