Bahrampour v. National Security Agency et al

Filing 60

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/7/2024. (c/m 2/7/2024 ah8s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*

AFSHIN BAHRAMPOUR,

*

Plaintiff,
v.

*

NATIONAL SECURITY AGENCY,
et al.,

*

Defendant.

Civil Action No. GLR-21-2412

*

***
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant National Security Agency’s
(“NSA”) Motion for Summary Judgment (ECF No. 47). The Motion is ripe for disposition,
and no hearing is necessary. See Local Rule 105.6 (D.Md. 2023). For the reasons set forth
below, the Court will grant the Motion.
I.

BACKGROUND

This action concerns two Freedom of Information Act (“FOIA”) requests to NSA
from self-represented Plaintiff Afshin Bahrampour. (See 2d Am. Compl. [“Compl.”] at 2–
3, ECF No. 32). Bahrampour submitted the first request (“Request 1”) on January 8, 2021.
(Req. 1 at 21–23, ECF No. 47-2). 1 He asked for “any records, books, files, electronic
surveillance (ELSUR) files, warrants, FISC warrants, information, reports, books,
electronic files or Zestso (sic) information in any medium in your control or possession or

The NSA filed multiple exhibits in one document attached to its Motion. (ECF No.
47-2). Citations to exhibit page numbers refer to the pagination assigned by the Court’s
Case Management/Electronic Case Files (“CM/ECF”) system in that document.
1

any records repository concerning relating to or relevant to the following; #1 myself,
Afshin Bahrampour, Date of Birth 5-26-1969.” (Id. at 21).
On March 17, 2021, NSA responded and explained that under Executive Order
13526, as well as 18 U.S.C. § 798, 50 U.S.C. § 3024(i), and 50 U.S.C. § 3605, “we are not
able to confirm or deny the existence of intelligence records on any and all individuals who
request them.” (Mar. 17, 2021 Letter at 26–28, ECF No. 47-2). NSA further explained that
it could not respond to Bahrampour’s request because of security concerns:
Were we to [respond] in your case, we would have to do so for
every other requester. This would enable, for example, a
terrorist or other adversary to file a FOIA request with us in
order to determine whether he or she was under surveillance or
had evaded it. This in turn would allow that individual to better
assess whether they could successfully act to damage the
national security of the United States. For such reasons we can
neither confirm nor deny the existence or non-existence of the
records you requested.
(Id. at 26). This response is a standard response called a Glomar response. (Id. at 26–27).
Bahrampour appealed the decision on March 24, 2021. (Req. 1 Appeal at 30, ECF
No. 47-2). He requested a Vaughn index, 2 a declassification review of responsive materials,
and the release of all segregable unclassified information. (Id. at 31–32). On April 16, 2021,
NSA denied the appeal. (Apr. 16, 2021 Letter at 36, ECF No. 47-2).

A Vaughn index is a document that agencies prepare in FOIA litigation to justify
each withholding, as set forth by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). National
Archives,
FOIA
Resources,
https://www.archives.gov/ogis/resources#:~:text=A%20Vaughn%20Index%20is%20a,19
73)%2C%20cert. (last visited Jan. 25, 2024).
2

2

On March 14, 2022, Bahrampour submitted a second FOIA request (“Request 2”).
(Req. 2 at 39–40, ECF No. 47-2). He asked for:
#1 Biological effects of electromagnetic [r]adiation;
#2 Any environmental impact statements or supplemental
environmental impact statements concerning effects of
continuously exposing humans to electromagnetic [r]adiation;
#3 Any communication systems or [d]evices which employ the
microwave [a]uditory effect or microwave pulses;
#4 Electronic Brain Link or E.M.F. [b]rain stimulation or
[r]emote [n]eural monitoring [d]evices or tools/systems;
#5 Any G.P.S. targeting for [n]on-lethal systems.
(Id.). On April 5, 2022, NSA replied to Request 2 and informed Bahrampour that it had
located some responsive material, but that it “require[d] review prior to release.” (Apr. 5,
2022 Letter at 44, ECF No. 47-2). NSA further informed Bahrampour that his request was
in the backlog queue and that the agency processes requests in the order that they are
received. (Id.).
Linda M. Kiyosaki, the NSA’s Chief of Enterprise Guidance Services, explains in
her Affidavit that the material found in its search was responsive to the first prong of
Bahrampour’s request, but it originated with another agency, the Defense Intelligence
Agency (“DIA”). (Kiyosaki Aff. ¶ 36, ECF No. 47-2). Because NSA did not originate the
materials, it was “unable to make a determination as to releasability” so it “referred the
material to DIA for its review and direct response” to Bahrampour. (Id.).
Bahrampour filed this action on September 20, 2021. (ECF No. 1). He subsequently
filed amended Complaints on December 16, 2021, (ECF No. 4), and September 26, 2022,
(ECF No. 32). After he filed suit, NSA’s counsel reviewed Request 2 in March 2022 to
ensure that it had been processed correctly. (Kiyosaki Aff. ¶ 37). NSA concluded that
3

Request 2 was “extraordinarily broad.” (Id.). Bahrampour prefaced the terms of Request 2
by asking for materials “relating to or relevant to any of the following,” making it difficult
to discern what documents might be responsive. (See id. ¶ 38). On November 14, 2022,
NSA sent Bahrampour a letter asking him to narrow his request. (Nov. 14, 2022 Letter at
47–48, ECF No. 47-2). NSA explained that Request 2 did not “reasonably describe” the
documents sought as required by 5 U.S.C. § 552(a)(3), nor did it contain temporal limits.
(Id. at 47). For example, Request 2 broadly asked for documents relating to electromagnetic
radiation, without specifying whether it referred to the entire electromagnetic spectrum or
a certain biological effect of radiation in particular. (Id. at 47–48).
On November 20, 2022, Bahrampour responded and limited his request in the
following ways: (1) a temporal restriction “to the last 50 years” or from 1970 to 2022; (2)
he sought only information about manmade electromagnetic radiation; (3) he split the first
prong of his request into eleven sub-parts aimed at different parts of the electromagnetic
spectrum; and (4) he sought information relating to the United States Navy’s “Strategic
Communications platform” as well as environmental impact statements (“EIS”) relating to
radiation. (Nov. 20, 2022 Letter at 50–54, ECF No. 47-2). On December 8, 2022, NSA,
through the United States Attorney’s Office, wrote to Bahrampour to explain that his
request was still very broad because it implicated the entire manmade electromagnetic
spectrum over a fifty-year period. (Dec. 8, 2022 Letter at 58, ECF No. 47-2). NSA asked
whether he could narrow his request by further limiting the temporal range, whether he
meant to direct Request 2 to the Navy, and whether he could better describe the documents
sought—such as EIS related to human research conducted by NSA. (Id.).
4

The parties exchanged a total of twelve letters attempting to narrow Bahrampour’s
request. (Kiyosaki Aff. ¶ 49). NSA informed him that “[s]tudying the biological effects of
electromagnetic radiation and its environmental impact do not fall within the primary
mission set of NSA as it endeavors to collect and disseminate foreign intelligence
information.” (Jan. 10, 2023 Letter at 65, ECF No. 47-2). It further asked Bahrampour to
“more precisely identify the records you seek[]” to “enable a search of NSA’s records.”
(Id. at 65–66). Bahrampour eventually limited the temporal range to the past ten years, and
he requested EIS related to “the biological effects of electromagnetic radiation,” (Feb. 14,
2022 Letter at 68–69, ECF No. 47-2), as well as a list of NSA “components” or projects
pertaining to electromagnetic radiation. (Mar. 14, 2023 Letter at 77, ECF No. 47-2). NSA
responded that his request remained overbroad and that the information concerning alleged
components or projects was protected from disclosure by 50 U.S.C. § 3605. (Mar. 31, 2023
Letter at 82–83, ECF No. 47-2).
When the parties were unable to satisfactorily narrow Request 2, they ceased
communicating, (Kiyomaki Aff. ¶ 48), and NSA filed the instant Motion for Summary
Judgment on August 14, 2023, (ECF No. 47). Bahrampour filed an Opposition on
November 13, 2023, (ECF No. 58), in which he incorporated by reference arguments he
made in an earlier filing, (ECF No. 19). NSA filed a Reply on November 27, 2023, (ECF
No. 59).

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II.
A.

DISCUSSION

Standard of Review
Federal courts commonly resolve FOIA cases by summary judgment. Wickwire

Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004) (internal citation
omitted).

Under Federal

Rule

of

Civil

Procedure

56(a),

the

Court

grants summary judgment if the moving party demonstrates that there is no genuine issue
as to any material fact, and that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing
the Motion, the Court views the facts in the light most favorable to the nonmoving party,
with all justifiable inferences drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The Court may rely only on facts supported in the record, not simply
assertions in the pleadings. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003). A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. A dispute of material fact is “genuine” only if
sufficient evidence favoring the nonmoving party exists for the trier of fact to return a
verdict for that party. Id. at 248–49.
FOIA requires federal agencies to disclose agency records unless they may be
withheld pursuant to one of nine enumerated exemptions listed in § 552(b). When a
plaintiff asserts a civil claim that an agency failed to disclose information as required by
FOIA, courts “shall determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B). The Court
reviews the record evidence to determine: (1) the reasonableness of the agency’s search for
responsive records, and (2) that any redacted or withheld records fall under one of FOIA’s
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disclosure exemptions. Rein v. U.S. Patent & Trademark Off., 553 F.3d 353, 362 (4th Cir.
2009). The agency has the burden of establishing these two requirements. See Carney v.
U.S. Dep’t of Just., 19 F.3d 807, 812 (2d Cir. 1994). This burden may be met through
affidavits explaining the manner in which the search was conducted. See id. “An agency’s
affidavits must be relatively detailed and nonconclusory in order to support a FOIA
exemption.” Heily v. U.S. Dep’t of Com., 69 F.App’x 171, 173 (4th Cir. 2003). The Court
“is entitled to accept the credibility of such affidavits, so long as it has no reason to question
the good faith of the agency.” See Bowers v. U.S. Dep’t of Just., 930 F.2d 350, 357 (4th
Cir. 1991) (quoting Spannaus v. Dep’t of Just., 813 F.2d 1285, 1289 (4th Cir. 1987)).
To prevail over the presumption of credibility, a “requestor must demonstrate a
material issue by producing evidence, through affidavits or other appropriate means,
contradicting the adequacy of the search or suggesting bad faith.” Heily, 69 F.App’x at
173. Thus, the plaintiff’s belief “that there are other documents he is entitled to . . . is
inadequate to withstand a motion for summary judgment” without additional evidence.
Goldner v. Soc. Sec. Admin., 293 F.Supp.3d 540, 544 (D.Md. 2017) (quoting Heily, 69
F.App’x at 174). When deciding whether the parties have met their burdens, the district
court must consider the record in the light most favorable to the nonmoving party. Heily,
69 F.App’x at 173.
B.

Analysis
1.

Request 1

Bahrampour alleges that NSA withheld records responsive to Request 1, which
asked for “any” intelligence records on himself. (Req. 1 at 21). NSA argues that it properly
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withheld any responsive documents under 5 U.S.C. § 552(b)(1) (commonly referred to as
“FOIA Exemption 1”) and 5 U.S.C. § 552(b)(3) (“FOIA Exemption 3”). (Mem. Supp. Mot.
Summ. J. [“Mot.”] at 19, ECF No. 47-1). The Court agrees with NSA.
FOIA Exemption 1 provides that an agency need not make documents available to
the public 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)(A); see Al
Fayed v. U.S., 210 F.3d 421, 423 (4th Cir. 2000). At issue here is Executive Order No.
13526, 75 Fed.Reg.707, 707 (Dec. 29, 2009), which provides that an agency may designate
documents as classified if four conditions are met:
(1) an original classification authority is classifying the
information;
(2) the information is owned by, produced by or for, or is under
the control of the United States Government;
(3) the information falls within one or more of the categories
of information listed in section 1.4 of [Executive Order No.
13,526]; and
(4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which
includes defense against transnational terrorism, and the
original classification authority is able to identify or describe
the damage.
Id.
Bahrampour argues that FOIA requires NSA to identify responsive records and
explain why each has been withheld. (1st Opp’n at 36, ECF No. 19). In her Affadavit, 3

Bahrampour does not dispute that Kiyosaki’s Affidavit is sufficiently detailed to
justify summary judgment. See James Madison Project v. Nat’l Sec. Agency, No. TDC3

8

Kiyosaki explains that NSA owns the materials and is the original classifying authority.
(Kiyosaki Aff. ¶ 23). Further, confirming the existence or nonexistence of any NSA records
on Bahrampour, or on any individual, would reveal information relating to intelligence
activities:
[I]f NSA were to admit publicly in response to a FOIA request
that no information about Persons X or Y exists, but in
response to a separate FOIA request about Person Z state only
that no response could be made, this would give rise to the
inference that Person Z is or has been a target. Over time, the
accumulation of these inferences would disclose the targets
and capabilities, and therefore the sources and methods, of
NSA’s [] activities and functions, and inform our adversaries
of the degree to which NSA is aware of some of their
operatives….
(Id.). Disclosure could thus damage national security and “affect NSA’s ability to counter
threats to the national security of the United States.” (Id. ¶ 22). Therefore, the information
sought meets all four requirements to be properly classified under Executive Order 13526.
The Kiyosaki Affadavit provides a detailed and credible explanation of why
Exemption 1 applies to Request 1. Bahrampour has failed to show that Exemption 1 does
not apply, or that NSA acted in bad faith. Accordingly, NSA properly issued a Glomar
response under Exemption 1 declining to disclose information.
The NSA also argues that its response was proper under Exemption 3, 5 U.S.C.
§ 552(b)(3). (Mot. at 9). Exemption 3 provides that FOIA does not require the disclosure
of matters that are “specifically exempted from disclosure by statute,” if the statute

22-0153, 2023 WL 4181196, at *3 (D.Md. June 26, 2023) (analyzing whether agency’s
affidavits were sufficiently detailed to warrant a grant of summary judgment).
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“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). NSA avers that three
statutes exempt disclosure as to Request 1: 50 U.S.C. § 3605, 18 U.S.C. § 798, and 50
U.S.C. § 3024. (Mot. at 4–5).
First, §6 of 50 U.S.C. § 3605, also known as the National Security Agency Act of
1959, provides that “[n]othing in this chapter or any other law . . . shall be construed to
require the disclosure of the organization or any function of the National Security Agency,
or any information with respect to the activities thereof . . . .” Id. Federal courts have held
that “Section 6 [of the National Security Act] qualifies as an Exemption 3 Statute” and that
it “provides absolute protection” from disclosure, without requiring a showing of harm to
national security. Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir. 2009); see also
James Madison Project, 2023 WL 4181196, at *5.
As explained above, disclosure of NSA records responsive to Request 1 would
require NSA to reveal classified information about its function and activities. (Kiyosaki
Aff. ¶ 23). Therefore, the records sought fall within the coverage of §6 of the National
Security Act, and they may be withheld accordingly.
Second, 18 U.S.C. § 798 prohibits the unauthorized disclosure of classified
information: (i) “concerning the communications intelligence activities of the United
States,” or (ii) obtained by the process of communications intelligence derived from the
communications of any foreign government. Id. The term “communication intelligence,”
as defined by § 798, means the “procedures and methods used in the interception of
10

communications and the obtaining of information from such communications by other than
the intended recipients.” Id. Again, the records sought in Request 1, or the simple
acknowledgment that such records do or do not exist, concerns the communications
intelligence of the United States for the reasons explained in Kiyosaki’s Affidavit.
(Kiyosaki Aff. ¶ 23). Accordingly, nondisclosure and the Glomar response are also justified
by this statute. Because the Court has determined that information was properly withheld
under these first two statutes, the Court need not determine whether 50 U.S.C. § 3024 also
applies here.
2.

Request 2

In Request 2, Bahrampour sought “any records” or information “[r]elating to or
[r]elevant to . . . [b]iological effects of electromagnetic [r]adiation,” “environmental
impact

statements . . . concerning

effects

continuously

exposing

humans

to

electromagnetic [r]adiation,” “communication systems or [d]evices which employ the
microwave [a]uditory effect or microwave pulses,” “[r]emote [n]eural monitoring
[d]evices,” and “G.P.S. targeting for [n]on-lethal systems.” (Req. 2 at 40). He argues
responsive records were withheld and NSA acted in bad faith. (1st Opp’n at 34). NSA
argues that Request 2 was overly broad so that it could not locate the records “with a
reasonable amount of effort.” (Mot. at 2). At bottom, the Court agrees with the NSA.
“FOIA does not require a perfect search, only a reasonable one.” Rein, 553 F.3d at
362. Plaintiffs must “‘identify specific deficiencies in the agency’s response’ that
contradict the adequacy of the search or suggest bad faith.” Ayyad v. Internal Revenue
Serv., No. PX 16-3032, 2018 WL 704849, at *4 (D.Md. Feb. 2, 2018) (quoting CareToLive
11

v. FDA, 631 F.3d 336, 341–42 (6th Cir. 2011)). Further, the request must contain a
reasonable description of records, 5 U.S.C. § 552(a)(3)(A), so that an agency employee
could locate responsive material “with a reasonable amount of effort.” Moore v. Fed. Bur.
of Investig., 283 F.App’x 397, 398 (7th Cir. 2008) (quoting Marks v. U.S. Dep’t of Just.,
578 F.2d 261, 263 (9th Cir. 1978)). Some federal courts have held that requests for “all
documents ‘relating to’” a subject are overbroad, and that they “unfairly place[] the onus
of non-production on the recipient of the request and not where it belongs—upon the
[requester].” James Madison Project v. C.I.A., No. 1:08CV1323(GBL), 2009 WL
2777961, at *4 (E.D.Va. Aug. 31, 2009).
Here, Bahrampour broadly asks for any records or information “relating to or
relevant to” five different categories, none of which appear to relate to NSA’s mission or
work. (See Jan. 10, 2023 Letter at 65 (explaining that “[s]tudying the biological effects of
electromagnetic radiation and its environmental impact do not fall within the primary
mission set of NSA as it endeavors to collect and disseminate foreign intelligence
information.”)). This vague language does not reasonably describe the records sought. See
James Madison Project, 2009 WL 2777961, at *4 (stating that vague language like “relating
to” made for an onerous, overbroad request). In her uncontroverted Affadavit, Kiyosaki
credibly explains that despite extensive communications with Bahrampour to attempt to
narrow his request, he only added a temporal restriction of ten years. (Kiyosaki Aff. ¶ 49).
This restriction was insufficient to allow NSA employees to perform a reasonable search.
(Id.). The Court affords substantial weight to the Affidavit, and Bahrampour provides no
controverting evidence—only his belief that responsive documents exist. (See 1st Opp’n
12

at 34–36). Because a plaintiff’s belief “that there are other documents he is entitled to . . .
is inadequate to withstand a motion for summary judgment” without additional evidence,
Goldner, 293 F.Supp.3d at 544, the Court finds that there is no outstanding issue of material
fact and NSA is entitled to summary judgment on this issue as a matter of law.
In an effort to avoid this result, Bahrampour argues that NSA exhibited bad faith
because it originally informed him that it located a responsive record, but then provided
nothing. (See 1st Opp’n at 33–34). Kiyosaki explains that the NSA could not release the
document because the Office of the General Counsel found that it did not originate with,
and was not classified by, NSA, so it sent the documentation to the proper agency, the DIA,
for review. (Kiyosaki Aff. ¶ 36). The Court finds no bad faith here. Rather, NSA exhibited
a willingness to cooperate with Bahrampour through its many letters, but Bahrampour
refused to clarify or narrow his requests beyond a temporal restriction. See Ferri v. U.S.
Dep’t of Just., 573 F.Supp. 852,859 n.13 (W.D.Pa. 1983) (finding no bad faith by agency
when it wrote two letters to plaintiff to inform him that additional information was
necessary and the government was willing to cooperate with a more specific request).
III.

CONCLUSION

For the foregoing reasons, the Court will grant NSA’s Motion for Summary
Judgment. (ECF No. 47). A separate Order follows.
Entered this 7th day of February, 2024.

/s/
George L. Russell, III
United States District Judge
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