Roman v. NRO
Filing
77
ORDER granting 67 Motion for Summary Judgment. IT IS HEREBY ORDERED that, for the reasons set forth in the attached Memorandum and Order, defendants' motion for summary judgment is granted. Each defendant performed reasonable and adequate sea rches in full compliance with the Freedom of Information Act ("FOIA"), and, where a defendant withheld a document pursuant to a FOIA exemption, it did so properly. The Court has mailed a copy of the opinion to the plaintiff. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/22/2012. (Weber, Rebecca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-2947; 09-CV-4281; 09-CV-3344; 09-CV-2504; 09-CV-5633 (JFB)(WDW)
_____________________
GILBERT ROMAN,
Plaintiff,
VERSUS
NATIONAL SECURITY AGENCY, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
February 22, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff pro se Gilbert Roman (“plaintiff”
or “Roman”) brought the above-captioned
actions separately and individually against the
National Security Agency (“NSA”), the
Central Intelligence Agency (“CIA”), the
National Reconnaissance Office (“NRO”), and
the Defense Advanced Research Projects
Agency
(“DARPA”)
(collectively,
“defendants”) requesting that they produce
records responsive to his requests under the
Freedom of Information Act (“FOIA”), 5
U.S.C. § 552 (2006). Defendants argue that
they have performed reasonable searches and
produced all relevant documents to plaintiff
other than documents subject to FOIA
exemptions. Defendants now move for
summary judgment dismissing plaintiff’s
complaints pursuant to Federal Rule of Civil
Procedure 56. As set forth below, the Court
finds that each defendant performed a
reasonable and adequate search in full
compliance with FOIA. Moreover, where a
defendant withheld documents pursuant to a
FOIA exemption, the defendant did so
properly. Accordingly, the Court grants
summary judgment to defendants.
I. BACKGROUND
A. Facts
The Court has taken the facts described
below from the parties’ affidavits, exhibits
and each defendant’s 1 Local Rule 56.1
1
Specifically, the Court has taken the facts from the
Statement of Facts. In ruling on a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the nonmoving party. See Capobianco v. City of New
York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
resonance imaging (“FMRI”) technology
that plaintiff believes is being used by the
agencies against U.S. citizens to control
their thoughts. In two separate decisions,
the NSA concluded that Roman’s requests
were outside the purview of the agency.
(NSA’s 56.1 ¶¶ 2, 3, 6, Exs. B, E.) Roman
appealed the NSA’s decision with respect to
his March 6, 2009 request, and the NSA’s
Deputy Director upheld the agency’s
decision. (Id. ¶ 4, Ex. C.) After Roman
initiated the instant lawsuits against the
agency, the NSA conducted searches of its
database for topics similar to what Roman
was requesting so as to craft a reasonable
search in response to his requests. 5 (Id. ¶
12.) The NSA located a similar request in
response to which the NSA had conducted
an “Agency-wide” search for documents and
concluded that the one responsive document
found was exempt pursuant to FOIA
Exemption 3, 5 U.S.C. § 552(b)(3). (Id.
¶¶ 12-14, 16, 17.)
Plaintiff has filed nearly identical FOIA
requests with the NSA, 2 NRO, 3 and DARPA4
for information related to functional magnetic
NSA’s Local Rule 56.1 Statement of Facts (“NSA’s
56.1”), the CIA’s Local Rule 56.1 Statement of Facts
(“CIA’s 56.1”), the NRO’s Local Rule 56.1 Statement
of Facts (“NRO’s 56.1”), and DARPA’s Local Rule
56.1 Statement of Facts (“DARPA’s 56.1”). The NSA’s
Local Civil Rule 56.1 statements are identical in the
separate actions Roman brought against the NSA.
2
A March 6, 2009 request, No. 09-CV-2947, asked for
“information on [f]unctional magnetic resonance
imaging . . . [t]he date it was put into service [and] . . .
[t]he first successful report on the first person it was
used on successfully.” (NSA’s 56.1 ¶ 1, Ex. A.) A July
18, 2009 request, No. 09-CV-4281, demanded “1.
Information on the technology that allows you to send
thoughts or implant thoughts To [sic] the person you
are focused on. 2. The day it was perfected; the report
on the first person it was used against successfully. 3.
The report on how you can also cause behavior; with
this technology, 4. A complete search of all records
from top secret to lowest level; to include stored and
Vaulted micro-film or documents records. 5. This
information could be under W.A.R.P. systems but as
you know you could hide records Under [sic] any name
and get a no records response.” (Id. ¶ 5, Ex. D.)
DARPA was unable to find responsive
documents based on the information
provided in plaintiff’s initial request for
“information on FMRI technology.”
(DARPA’s 56.1 ¶ 7.) After receiving
plaintiff’s complaint in this suit, however,
DARPA was able to identify and search,
based on information provided by plaintiff
in Exhibits Z-1 and Z-2, the subject area
concerning
Neurotechnology
for
Intelligence Analysts (“NIA”). (Id. at ¶ 8.)
DARPA located 15 documents (consisting
3
On May 14, 2009, plaintiff submitted a FOIA request
to the NRO seeking 1. “Information on Functional
magnetic resonance imaging”; 2. “The date it was put
into service”; and 3. “The first successful report on the
first person it was used on successfully.” (NRO’s 56.1
¶ 1, Ex. A.)
5
4
In connection with a motion for summary judgment,
it is permissible for the Court to consider searches
conducted by agencies after the complaint was filed.
See, e.g., Tunchez v. U.S. Dep’t of Justice, No. 105228, 2011 U.S. App. LEXIS 5194, at *1-2 (D.C.
Cir. Mar. 14, 2011); Moore v. FBI, 366 Fed. App’x
659, 661 (7th Cir. 2010).
On October 22, 2009, Roman requested that DARPA
provide him with 1. “information on FMRI
technology . . . [; 2.] The date it was perfected . . . [; 3.]
The first report on the first person it was used against
successfully . . . [; 4.] A present list of all agencies
presently using FMRI technology . . . .” (DARPA’s
56.1 ¶ 1, Ex. 1.)
2
of 183 pages), which it provided to plaintiff by
letter dated March 15, 2010. (Id. at ¶¶ 10, 12.)
in a letter dated April 24, 2009, indicating
that the only previous FOIA request on
record with the CIA was dated April 21,
1999, and that the CIA had already
responded to that request. (Id. ¶ 8, Ex. E.)
Plaintiff subsequently submitted another
letter to the CIA, dated May 1, 2009, asking
for “FOIA task sheets of all my request [sic]
from your agency to me, over the years.”
(Id. ¶ 12, Ex. F.) The CIA did not respond
because it considered this letter duplicative
of Roman’s March 6, 2009 request. (Id. ¶
12.) On June 11, 2009, the CIA sent Roman
a final response to his March 6 request,
informing him that the CIA re-reviewed
information that it had previously denied in
response to the April 21, 1999 FOIA request
and, as a result, released fourteen additional
documents to Roman that contained
deletions made in accordance with FOIA
Exemption 3, 5 U.S.C. § 552(b)(3). (Id. ¶
13, Ex. G.) Plaintiff appealed this decision
in a letter dated June 18, 2009, noting that
the CIA failed to send “clear documents”
and failed to “send time logs on how many
minutes or hours were used to process My
request.” (Id. ¶ 14, Ex. H.) The CIA
declined to accept this appeal as it
considered it duplicative. (Id. ¶ 15, Ex. I.)
The CIA explained that copies provided to
plaintiff were no more legible than the
original documents. (Id. ¶ 16.) After Roman
filed his complaint, the CIA re-reviewed his
FOIA request and concluded that it had
missed
eight
additional
responsive
documents but only provided two redacted
documents to Roman in a letter dated
December 2, 2009, asserting that the other
documents were subject to FOIA
Exemptions 3 and 5, 5 U.S.C. §§ 552(b)(3),
(b)(5). (Id. ¶¶ 25-26, Ex. J.) In explaining
why the eight documents were missed in
originally reviewing plaintiff’s March 6,
Upon receiving plaintiff’s May 14, 2009
request, the NRO indicated to plaintiff by
letter, dated May 21, 2009, that the request did
not contain “sufficient specificity (as to their
type, origin, etc.) to conduct an organized,
non-random search of our records systems.”
(NRO’s 56.1 ¶ 2, Ex. B.) Plaintiff’s May 14,
2009 request also referenced a previous
request, dated March 9, 2009, for the same
information. (Id. at ¶ 3, Ex. A.) The NRO
initially informed plaintiff it had no record of
the March 9, 2009 request. (Id.) Subsequently,
however, NRO located the March 2009
request and apologized to plaintiff for the
delay. (Id.) In response to the NRO’s May 21,
2009 letter, plaintiff submitted additional
correspondence with 12 pages of exhibits. (Id.
at ¶ 4.) By letter dated July 1, 2009, the NRO
informed plaintiff that a thorough search had
resulted in the identification of no responsive
records. (Id. at ¶ 8.) Plaintiff appealed, and
the NRO affirmed its “no records response.”
(Id. at ¶ 11.) In February 2011, the NRO
conducted an additional search for records
responsive to plaintiff’s court filing. (Id. at
¶ 12.) The NRO located two articles relating
to a 1990s program that developed techniques
to combat breast cancer. (Id.)
Plaintiff’s FOIA request to the CIA was
distinct from those to the NSA, NRO, and
DARPA. Roman submitted a FOIA request to
the CIA on March 6, 2009, asking for “all
copies of the Freedom of Information
Processing forms used on all of my request
[sic] to your agency over the years. . . . [t]o
include dates, times used to search for
information and the printed names and signed
names of the person performing the task.”
(CIA’s 56.1 ¶ 1, Ex. A.) The CIA responded
3
2009 FOIA request, the CIA stated that it had
“overlooked the fact that processing forms
were generated in response to plaintiff’s April
21, 1999 FOIA request” after the original cutoff date used in processing plaintiff’s April 21
request when first received. (Id. ¶ 24.) Thus,
the CIA had erroneously believed that,
because the only FOIA request from Roman
received prior to March 6, 2009 was the April
21, 1999 request, all documents responsive to
his March request would have already been
provided in response to his April request.
(Id.)
renewed motion for summary judgment on
August 16, 2011. Plaintiff responded on
August 26, 2011, and NSA replied on
November 18, 2011.
On May 29, 2009, plaintiff filed the
instant action against the NRO, No. 09-CV2504. On March 12, 2010, the NRO filed a
motion for summary judgment. Plaintiff
filed his responses on March 24 and March
30, 2010. The NRO, in turn, responded on
May 4, 2010, and plaintiff submitted
supplemental evidence in response on May
12, 2010. After the January 19, 2011
telephone conference, the NRO filed the
instant motion for summary judgment on
August 15, 2011. Plaintiff responded on
August 26, 2011, and the NRO replied on
November 18, 2011.
B. Procedural History
Plaintiff filed two separate actions against
the NSA. The first action was filed on July 9,
2009, No. 09-CV-2947. In that case, the NSA
filed a motion for summary judgment on June
18, 2010. Plaintiff responded on June 29,
2010, 6 and NSA replied on August 5, 2010. At
a telephone conference on January 19, 2011,
in response to inquiries from the Court, the
government agreed to file supplemental
affidavits and to file renewed motions for
summary judgment. On August 16, 2011, the
NSA filed the instant motion for summary
judgment. Plaintiff responded on August 26,
2011. The NSA filed its reply on November
18, 2011.
On December 23, 2009, plaintiff filed
the instant action against DARPA, No. 09CV-5633. On June 7, 2010, DARPA filed a
motion for summary judgment. Plaintiff
responded on June 23, 2010, and DARPA,
in turn, submitted its reply on July 13, 2010.
Following the January 19, 2011 telephone
conference, DARPA filed the instant motion
for summary judgment on March 18, 2011.
Plaintiff filed an opposition on April 13,
2011, and DARPA replied on November 18,
2011.
Plaintiff filed his second action against the
NSA on October 5, 2009, No. 09-CV-4281.
The NSA filed a motion for summary
judgment on June 18, 2010, plaintiff
responded on June 29, 2010, and the NSA
replied on August 5, 2010. After the January
19, 2011 telephone conference, NSA filed a
On July 28, 2009, plaintiff filed the
action against the CIA, No. 09-CV-3344.
On March 5, 2010, the CIA filed a motion
for summary judgment. Plaintiff responded
on March 24, 2010, and the CIA, in turn,
filed a reply on April 30, 2010. Following
the telephone conference on January 19,
2011, the CIA filed a motion for summary
judgment on July 18, 2011. Plaintiff
6
Additionally, plaintiff’s January 15, 2010, letter was
construed as his response to the NSA’s motion for
summary judgment pursuant to an Order dated
September 2, 2010.
4
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . The nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
responded on August 4, 2011, and the CIA
replied on November 18, 2011.
The Court has fully considered the
submissions of the parties.
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of Civil
Procedure 56(a), a court may only grant a
motion for summary judgment 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). The moving party bears the burden of
showing that he or she is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d 53,
69 (2d Cir. 2005). “A party asserting that a
fact cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits or
declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or presence
of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support
the fact.” Fed. R. Civ. P. 56(c)(1). The court
“is not to weigh the evidence but is instead
required to view the evidence in the light most
favorable to the party opposing summary
judgment, to draw all reasonable inferences in
favor of that party, and to eschew credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (summary
Moreover, where the plaintiff is
proceeding pro se, the Court must “construe
5
[the complaint] broadly, and interpret [it] to
raise the strongest arguments that [it]
suggests.” Weixel v. Bd. of Educ. of the City
of N.Y., 287 F.3d 138, 146 (2d Cir. 2002)
(quoting Cruz v. Gomez, 202 F.3d 593, 597
(2d Cir. 2000) (alterations in Weixel)).
Though a pro se litigant’s pleadings are
afforded wide latitude, a pro se party’s “bald
assertion,” completely unsupported by
evidence, is not sufficient to defeat a motion
for summary judgment. Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991). Instead, to
overcome a motion for summary judgment,
the non-moving party “must bring forward
some affirmative indication that his version of
relevant events is not fanciful.” Podell v.
Citicorp Diners Club, Inc., 112 F.3d 98, 101
(2d Cir. 1997) (internal citations omitted); see
also Morris v. Ales Group USA, Inc., No. 04
Civ. 8239 (PAC), 2007 U.S. Dist. LEXIS
47674, at *10 (S.D.N.Y. June 28, 2007) (“[T]o
survive summary judgment, plaintiff’s facts
‘must be material and of a substantial nature,
not fanciful, frivolous, gauzy, spurious,
irrelevant, gossamer inferences, conjectural,
speculative, nor merely suspicions.’”)
(quoting Contemporary Mission, Inc. v. U.S.
Postal Serv., 648 F.2d 97, 107 n.14 (2d Cir.
1981)).
is entitled to have access to any record
maintained by a federal agency, unless that
record is exempt from disclosure under one
of the Act’s nine exemptions.” A. Michael’s
Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d
Cir. 1994), cert. denied, 513 U.S. 1015
(1994); accord Ortiz v. Dep’t of Health and
Human Servs., 70 F.3d 729, 732 (2d Cir.
1995), cert. denied, 517 U.S. 1136 (1996).
FOIA confers jurisdiction on the district
courts “to enjoin the agency from
withholding agency records and to order the
production of any agency records
improperly withheld.”
5 U.S.C. §
552(a)(4)(B); U.S.D.O.J. v. Tax Analysts,
492 U.S. 136, 142 (1989).
However,
“jurisdiction is dependent on a showing that
an agency has (1) improperly (2) withheld
(3) agency records. Unless each of these
criteria is met, a district court lacks
jurisdiction to devise remedies to force an
agency to comply with the FOIA’s
disclosure requirements.” Tax Analysts, 492
U.S. at 142 (internal quotation marks and
citation omitted).
Accordingly, “[i]t is the responsibility of
the federal courts to conduct de novo review
when a member of the public challenges an
agency’s assertion that a record being sought
is exempt from disclosure. The burden of
proof, upon such review, rests with the
agency asserting the exemption, with doubts
resolved in favor of disclosure.” A.
Michael’s Piano, Inc., 18 F.3d at 143
(citations omitted). A district court “may
grant summary judgment in favor of an
agency on the basis of agency affidavits if
they contain reasonable specificity of detail
rather than merely conclusory statements,
and if they are not called into question by
contradictory evidence in the record or by
evidence of agency bad faith.” Grand Cent.
III. DISCUSSION
A. Applicable Law
The central purpose of FOIA is to “ensure
an informed citizenry . . . [which is] needed to
check against corruption and to hold the
governors accountable to the governed.”
NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978); accord U.S.D.O.J. v.
Reporters Comm. for Freedom of the Press,
489 U.S. 749, 773 (1989) (citation omitted).
Under the statute, “any member of the public
6
P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d
Cir. 1999) (quotation marks omitted)
(emphasis in original). “Affidavits or
declarations . . . giving reasonably detailed
explanations why any withheld documents fall
within an exemption are sufficient to sustain
the agency’s burden . . . [and] are accorded a
presumption of good faith.” Carney v.
U.S.D.O.J., 19 F.3d 807, 812 (2d Cir. 1994),
cert. denied 513 U.S. 823 (1994) (citation
omitted); see also Maynard v. CIA, 986 F.2d
547, 560 (1st Cir. 1993); Perry v. Block, 684
F.2d 121, 127 (D.C. Cir. 1982) (per curiam);
Malizia v. U.S.D.O.J., 519 F. Supp. 338, 342
(S.D.N.Y. 1981). When agency submissions
are adequate on their face, a district court has
the discretion to “forgo discovery and award
summary judgment on the basis of affidavits.”
Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978), cert. denied, 445 U.S. 927 (1980);
accord Maynard, 986 F.2d at 556 n.8;
Simmons v. U.S.D.O.J., 796 F.2d 709, 711-12
(4th Cir. 1986). “In order to avoid summary
judgment and proceed to discovery once the
defending agency has satisfied its burden, ‘the
plaintiff must make a showing of bad faith on
the part of the agency sufficient to impugn the
agency’s affidavits or declarations.’” Labella
v. FBI, No. 07 Civ. 2330 (NGG)(LB), 2008
U.S. Dist. LEXIS 37847, at *18 (E.D.N.Y.
May 8, 2008), aff’d 332 Fed. App’x 715 (2d
Cir. 2009) (quoting Carney, 19 F.3d at 812);
Carter v. U.S. Dep’t of Comm., 830 F.2d 388,
393 (D.C. Cir. 1987) (“[T]he mere allegation
of bad faith does not undermine the
sufficiency of agency submissions. There
must be tangible evidence of bad faith;
without it the court should not question the
veracity of agency submissions.”) (citations
omitted). Because plaintiff is representing
himself pro se, the Court has construed his
papers liberally.
An agency responding to a FOIA request
need not “take extraordinary measures to
find the requested records, but only to
conduct a search ‘reasonably designed to
identify and locate responsive documents.’”
Garcia v. U.S. Dep’t of Justice, 181 F. Supp.
2d 356, 368 (S.D.N.Y. 2002) (citation
omitted); see also Amnesty Int’l USA v.
C.I.A., No. 07 Civ. 5435, 2008 U.S. Dist.
LEXIS 47882, at *26 (S.D.N.Y. June 19,
2008) (citing Truitt v. U.S. Dep’t of State,
897 F.2d 540, 542 (D.C. Cir. 1990) and
Garcia, 181 F. Supp. 2d at 368); Marrera v.
Dep’t of Justice, 622 F. Supp. 51, 54
(D.D.C. 1985) (citations omitted). A search
is “reasonable and adequate even if ‘it fails
to produce all relevant material.’” Garcia,
181 F. Supp. 2d at 368 (quoting Meeropol v.
Meese, 790 F.2d 942, 953 (D.C. Cir. 1986)).
As noted above, an agency affidavit that is
reasonably detailed, and made in good faith,
will be deemed sufficient by this Court for
purposes of this motion.
An agency
affidavit is sufficient where it “identif[ies]
the searched files and describe[s] at least
generally the structure of the agency’s file
system which renders any further search
unlikely to disclose additional relevant
information.” Rabin v. U.S. Dep’t of State,
980 F. Supp. 116, 120-21 (E.D.N.Y. 1997)
(quotation marks omitted) (noting that the
affidavit in question “does not describe the
general structure of the Agency’s record
keeping system, or the methods by which
the Agency generally conducts its searches .
. . [and] which of the Agency’s files were
searched in response” to the request.); see
also Katzman v. C.I.A., 903 F. Supp. 434,
438 (E.D.N.Y. 1995); El Badrawi v. Dep’t
of Homeland Sec., 583 F. Supp. 2d 285, 298
(D. Conn. 2008) (“A reasonably detailed
affidavit, setting forth the search terms and
the type of search performed, and averring
7
that all files likely to contain responsive
materials (if such records exist) were
searched, is necessary . . . to allow the district
court to determine if the search was adequate
in order to grant summary judgment.”
(quotations omitted)).
a similar topic for a near-contemporaneous
requester.” (Id.) That requester had
submitted a much more detailed FOIA
request to the NSA concerning FMRI
technology. (Id.) In response to the nearcontemporaneous requester’s submission,
NSA’s FOIA Office had searched for and
located a similar prior search. (Id. at ¶ 21.)
The NSA used the terms “MRI” and “EEG”
in conducting the search. (Id.) In that earlier
case, the FOIA Office determined that the
Polygraph Division of the Associate
Directorate
for
Security
and
Counterintelligence (“ADS&CI”) was the
only likely organization to hold responsive
documents. (Id.) One document, a contract
proposal, was located and withheld in full.
(Id.) “Accordingly,” the declaration states,
“even if NSA had interpreted the Plaintiff’s
request to seek the Agency’s use of
‘functional magnetic resonance imaging’
technology for non-medical purposes, the
plaintiff would not have been provided any
responsive Agency information.” (Id. at
¶ 26.) The last section of the declaration
explains that, pursuant to Public Law 86-36,
the National Security Agency Act of 1959,
the NSA “is unable to disclose the structure
of its internal file system.” (Id. at ¶ 30; see
National Security Agency Act of 1959, Pub.
L. No. 86-36, 73 Stat. 63 (1959).) Janosek
concludes by “aver[ring] that all files likely
to contain responsive materials were
searched.” (Id. at ¶ 32.)
Based on the defendants’ declarations,
which are sufficient to satisfy the criteria
discussed above, the Court finds that each
defendant has demonstrated that it properly
responded to plaintiff’s FOIA requests by
conducting reasonable and adequate searches,
in full compliance with FOIA. Moreover, as
discussed below, where a defendant withheld
documents pursuant to an exemption to FOIA,
the Court finds that the documents were
properly withheld. The Court addresses each
defendant in turn.
B. NSA
The NSA provided a declaration from
Diane M. Janosek, Deputy Associate Director
for Policy and Records for the NSA, in both of
its disputes with Roman. The affidavit
provides a detailed outline of the NSA’s FOIA
policies and procedures and guides the Court
through what happens to a FOIA request once
it is received by the agency. (Janosek Decl.
¶¶ 7-11.) The affidavit explains that the NSA
initially responded to plaintiff’s request for
information concerning “functional magnetic
resonance imaging” by stating that the request
was not within the purview of the agency
because the agency interpreted it to refer to
the use of magnetic resonance imaging
technologies for medical purposes. (Id. at
¶¶ 18-19.) Nonetheless, the agency “also
conducted a reasonable search of its FOIA
database of all FOIA cases for similar topics.”
(Id. at ¶ 20.) That search revealed “a search of
responsive documents that had been made for
The NSA’s declaration is a “reasonably
detailed affidavit” that “set[s] forth the
search terms and the type of search
performed, and aver[s] that all files likely to
contain responsive materials (if such records
exist) were searched.” El Badrawi, 583 F.
Supp. 2d at 298 (quotations omitted). The
NSA reasonably excluded information from
8
the affidavit that would describe the structure
of the NSA’s internal file system, since it is
prohibited by law from doing so. The NSA
has set forth sufficient information in its
affidavit about its efforts to locate documents
responsive to plaintiff’s requests for this Court
to determine if the search adequate.
such a manner as to leave no discretion on
the issue; or . . . establish[] particular criteria
for withholding or refer[] to particular types
of matters to be withheld.” 5 U.S.C. §
552(b)(3)(A). The Supreme Court has set
forth a two-part analysis for courts
reviewing an agency’s invocation of
Exemption 3. CIA v. Sims, 471 U.S. 159,
167, 105 S. Ct. 1881, 85 L. Ed. 2d 173
(1985). First, the court must determine
whether the statute designated by the
withholding agency is one properly within
the bounds of Exemption 3. See id. If so, the
court must then determine whether the
withheld information meets the requirements
of that statute. See id.; see also A. Michael’s
Piano, Inc., 18 F.3d at 143; Fitzgibbon v.
CIA, 911 F.2d 755, 761 (D.C. Cir. 1990);
ACLU v. DOD, 389 F. Supp. 2d 547, 554
(S.D.N.Y. 2005).
Based on the information set forth in the
affidavit, the Court concludes that the NSA
properly responded to plaintiff’s March 6,
2009 and July 18, 2009 FOIA requests. 7 The
NSA reasonably considered the request
regarding “functional magnetic resonance
imaging” to concern medically-related
applications outside the purview of the NSA’s
mission, which entails information assurance
and signals intelligence. Since plaintiff’s
request exceeded the NSA’s statutory
purview, any search to identify responsive
documents would have been futile.
The applicable “Exemption 3” statute in
this case is 10 U.S.C. § 2305(g). This statute
is properly within the bounds of Exemption
3 because it leaves no discretion in requiring
that certain matters be withheld. See 5
U.S.C. § 552(b)(3)(A); Chesterfield Assocs.
v. U.S. Coast Guard, No. 08-CV-4674 (FB)
(VVP), 2009 U.S. Dist. LEXIS 43407, at *34 (E.D.N.Y. May 19, 2009). Specifically, 10
U.S.C. § 2305(g) states that contractor
proposals “may not be made available to any
person under section 552 of title 5.” The
plain language of the statute is mandatory
and not discretionary. Turning to the second
prong of the test, the withheld information
meets the requirements of 10 U.S.C.
§ 2305(g). Under 10 U.S.C. § 2305(g)(1), “a
proposal in the possession or control of an
agency named in section 2303 of this title
[10 U.S.C. § 2303]” may not be released.
The Department of Defense, of which the
NSA is an agency, is one of the agencies
After plaintiff filed the complaint in this
action, the NSA re-reviewed its interpretation
of plaintiff’s March 6, 2009 and July 18, 2009
requests. As set forth in the affidavit, the
agency conducted a search for the same topic
of documents requested by a nearcontemporaneous requester. In that search, the
NSA identified a contract proposal document,
which it withheld pursuant to FOIA
Exemption 3.
FOIA Exemption 3 protects information
“specifically exempted from disclosure by
statute,” if that statute meets certain
requirements. 5 U.S.C. § 552(b)(3).
Specifically, the statute must “require[] that
the matters be withheld from the public in
7
The March 6, 2009 request is the basis for the
complaint filed in 09-CV-2947. The July 18, 2009
request is the basis for the complaint filed in 09-CV4281.
9
named in 10 U.S.C. § 2303. Section
2305(g)(2) creates an exception for “any
proposal that is set forth or incorporated by
reference in a contract entered into between
the Department and the contractor that
submitted the proposal.” 10 U.S.C.
§ 2305(g)(2). The NSA’s “general practice” is
not to set forth or incorporate by reference
proposals submitted pursuant to a solicitation.
(NSA’s 56.1 ¶ 17.) Thus, the NSA properly
withheld this document in the earlier search.
Accordingly, the agency reasonably concluded
that interpreting the request to include FMRI
technology for non-medical purposes still
would not have produced responsive
information.
Acquisition
Directorate,
Systems
Engineering Directorate, Mission Support
Directorate, and Signals Intelligence
Systems Acquisition Directorate. (Id. at ¶ 4.)
The agency used the search terms “Magnetic
Resonance Imaging” and “MRI.” (Id. at ¶ 4,
Ex. A.) The NRO found no responsive
documents.
On February 3, 2011, the NRO
conducted an additional search of these
same files and databases, adding the Office
of Corporate Communications (“OCC”), in
an effort to find records responsive to
plaintiff’s December 8, 2010 filing, which
stated, “NRO R&D has actually been
credited with inventing the MRI.” (Id. at
¶ 5.) Glenn states, “I believe this email
reference may have been to a 1990’s
program that developed techniques to help
combat breast cancer.” (Id.) Glenn describes
two documents relevant to that program,
which the NRO attached as exhibits to their
motion to dismiss. (Id.; NRO’s Mot. to
Dismiss, Exs. B-1 and B-2.) Both of the
articles were found in a hard copy file
labeled “breast cancer” in the NRO OCC.
Although one of the articles does mention
the term “magnetic resonance imaging,”
Glenn avers that these two articles would
never have been located using the search
criteria requested by plaintiff. (Id.) Glenn
concludes by “affirm[ing] that all NRO
searches, were thorough and reasonable and,
given the structure of NRO’s files (as set
forth above), any further search would be
unlikely to disclose additional information.”
(Id. at ¶ 6.)
Because the NSA demonstrated that it
made every reasonable effort to locate records
responsive to plaintiff’s March 6, 2009 and
July 18, 2009 requests, and properly withheld
the one document responsive to earlier, similar
requests, the NSA satisfied the standards
under FOIA and applicable law. Accordingly,
the Court grants summary judgment as to the
NSA.
C. NRO
The NRO submitted a supplemental
declaration from Stephen Glenn, Chief of the
Information Access and Release Team at the
NRO. Glenn explains that the NRO does not
have an official Electronic Records
Management System, but it maintains paper
and electronic records pursuant to guidelines
set forth in the Records Control Schedule
approved by the U.S. National Archives and
Records Administration. (Glenn Suppl. Decl.
at ¶ 3.) After receiving plaintiff’s May 14,
2009 request, the NRO searched the following
files and databases: Advanced Systems and
Technology, Imagery Intelligence Systems
NRO’s declaration sets forth in
reasonable detail the manner in which its
files are organized, the files NRO searched
in responding to plaintiff’s request, and the
10
specific search terms used. Glenn further avers
that the searches were reasonable and any
further research would be unlikely to disclose
information. Accordingly, the affidavit
satisfies the criteria for granting summary
judgment on the basis of agency affidavits.
Furthermore, the affidavit demonstrates that
NRO’s search was reasonable and adequate,
and fully compliant with FOIA. NRO did not
withhold any documents responsive to
plaintiff’s request. Accordingly, the Court
grants summary judgment as to NRO.
information provided by plaintiff in Exhibits
Z-1 and Z-2, regarding “Neurotechnology
for Intelligence Analysis (NIA),” to conduct
further searches. (Id. at ¶ 5.) Specifically,
DARPA conducted a keyword search of its
electronic document repository using the
following search terms: “Functional
Magnetic Resonance Imaging or FMRI,
Neurotechnology or Neuro* (*wildcard to
locate all variations of word), Amy Kruse
(identification
of
DARPA
Program
Manager), EEG, and brain.” (Id.) The
agency located 15 documents (consisting of
183 pages) and forwarded them to OFOI.
(Id.) The declaration concludes by stating
that the search “was reasonable given the
structure of DARPA’s filing system (as set
forth above), and the fact that the search was
limited to two hours” due to plaintiff’s fee
constraints. (Id. at ¶ 6.)
D. DARPA
DARPA filed a declaration by Patricia A.
Rohrkemper, a contractor since November
2005 supporting FOIA activities in the
External Relations Office of DARPA.
(Rohrkemper Decl. ¶ 1.) Rohrkemper explains
that DARPA is a component of the Office of
the Secretary of Defense. (Id. at ¶ 3.) All
FOIA requests therefore fall under the
purview of the Defense Office of Freedom of
Information
(“OFOI”).
(Id.)
DARPA
organizes its electronic and paper files by
distinct subjects, and maintains an electronic
technical library containing all DARPA
technical and program documents that have
been submitted by DARPA staff and DARPA
performers and are approved for public release
in an electronic documents repository. (Id.)
DARPA’s declaration sets forth in
reasonable detail the manner in its which its
files are organized, the files DARPA
searched in responding to plaintiff’s request,
and the specific search terms used. The
affidavit thus satisfies the criteria for
granting summary judgment on the basis of
agency affidavits. Furthermore, the affidavit
demonstrates that DARPA’s search was
reasonable and adequate, and fully
compliant with FOIA. DARPA did not
withhold any documents responsive to
plaintiff’s request, and in fact produced 183
pages
of
responsive
information.
Accordingly, the Court grants summary
judgment as to DARPA.
On December 30, 2009, OFOI tasked
DARPA with conducting a search for records
responsive to plaintiff’s initial request. (Id. at
¶ 4.) Because the request was very broad and
“failed to identify any specific DARPA
research applications that might utilize FMRI
technology,” DARPA was unable to locate
responsive information. (Id.) After DARPA
received a copy of plaintiff’s complaint,
however, DARPA was able to use the
E. CIA
The CIA filed a declaration from Susan
Viscuso, current chief of the Public
Information Programs Division (“PIPD”) of
11
the Office of the Chief Information Officer, to
supplement the declaration the CIA had
previously filed from Delores M. Nelson,
then-chief of the PIPD. Viscuso explains that
CIA records relating to the receipt and
processing of FOIA requests are maintained in
a Privacy Act system of records called
“Information Release Records.” (Viscuso
Decl. ¶ 5.) Records maintained in the system
include Privacy Act and FOIA requests, and
processing
files,
which
include
correspondence and supporting documents.
(Id.) These records are stored in paper or
electronic form. (Id.)
Based on those results, Viscuso “aver[s] that
all files likely to contain responsive
materials were searched, and the records
processed and information provided
constitute a full response to Plaintiff’s 6
March 2009 request.” (Id.)
Additionally, plaintiff referenced “time
logs” in his complaint. (Id. at ¶ 8.) The
agency conducted a search of the same
records system using “Gilbert Roman,”
searched the F-1999-00952 file, and found
no responsive records. (Id.) Viscuso
explains that there were no records because
the CIA does not use a FOIA processing
form called a “time log,” and, because the
CIA did not charge plaintiff for the
processing of his April 21, 1999 request,
there was no reason to create a time
accounting record. (Id.) “As such, [Viscuso]
aver[s] that all records likely to contain
responsive materials for ‘time logs’ or
similar time accounting forms were
searched, and that this search yielded no
responsive information.” (Id.)
Plaintiff, by letter dated March 6, 2009,
requested “copies of the Freedom of
Information Processing forms used on my
entire request to your agency over the years.”
(Id. ¶ 6.) In response, the agency searched the
CIA Information Release Records using
plaintiff’s name, “Gilbert Roman” as the
search term. (Id.) The search yielded case
number “F-1999-00952,” which included the
records from plaintiff’s April 21, 1999
request. (Id.) The agency concluded that
plaintiff’s March 6, 2009 request was similar
to the April 21, 1999 request because the 1999
request sought “copies of the forms used to
process all of my FOIA and/or PA request to
your agency.” (Id ¶ 6 and n.5.) The CIA
responded to the 1999 request by providing 24
processing forms, two of which were released
in full and 22 of which were released in part.
(Id. ¶ 6.) In the course of conducting the
search in 2010, the agency discovered several
additional records that were responsive to the
March 6, 2009 request. (Id. at ¶ 7.) The
records were processed in accordance with
FOIA and two were released to plaintiff in a
letter dated December 2, 2009. (Id.) In total,
CIA’s search in response to plaintiff’s March
6, 2009 request yielded 32 records. (Id.)
The CIA declaration sets forth in
reasonable detail the files it searched and the
search terms it used, as well as avers that all
files likely to contain responsive materials
were searched and that the records provided
constitute a full response to plaintiff’s
request. Based on this affidavit, the Court
finds that the CIA’s search was reasonable
and adequate.
The CIA withheld the release of six
documents pursuant to Exemptions 3 and 5.
As discussed above, FOIA Exemption 3
protects information “specifically exempted
from disclosure by statute,” if that statute
meets certain requirements. 5 U.S.C. §
552(b)(3). Specifically, the statute must
12
available by law to a party . . . in litigation
with the agency.” 5 U.S.C. § 552(b)(5). This
exemption
thus
protects
documents
ordinarily privileged in the civil discovery
context. See FTC v. Grolier, Inc., 462 U.S.
19, 26, 103 S. Ct. 2209, 76 L. Ed. 2d 387
(1983). Accordingly, “[c]ourts have
interpreted Exemption 5 to encompass
traditional common-law privileges against
disclosure, including the work-product
doctrine, and executive, deliberative process
and attorney-client privileges.” Nat’l
Council of La Raza v. Dep’t of Justice, 411
F.3d 350, 356 (2d Cir. 2005). The CIA
claims that the deliberative process privilege
protects the documents in this case from
disclosure.
“require[] that the matters be withheld from
the public in such a manner as to leave no
discretion on the issue; or . . . establish[]
particular criteria for withholding or refer[] to
particular types of matters to be withheld.” 5
U.S.C. § 552(b)(3)(A). The Supreme Court
has set forth a two-part analysis for courts
reviewing an agency’s invocation of
Exemption 3. Sims, 471 U.S. at 167 (1985).
First, the court must determine whether the
statute designated by the withholding agency
is one properly within the bounds of
Exemption 3. See id. If so, the court must then
determine whether the withheld information
meets the requirements of that statute. See id.;
see also A. Michael’s Piano, Inc., 18 F.3d at
143; Fitzgibbon, 911 F.2d at 761; ACLU, 389
F. Supp. 2d at 554.
The deliberative process privilege
protects from disclosure “documents
reflecting
advisory
opinions,
recommendations
and
deliberations
comprising part of a process by which
governmental decisions and policies are
formulated.” Tigue v. Dep’t of Justice, 312
F.3d 70, 76 (2d Cir. 2002) (quoting Dep’t of
the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Ass’n, 532
U.S. 1, 8 (2001)). The rationale behind the
privilege is “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 decisions,’ by protecting
open and frank discussion among those who
make them within the Government.” Id.
(quoting Klamath, 532 U.S. at 8-9 (quoting
NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151, 95 S. Ct. 1504, 44 L. Ed. 2d 29
(1975))).
The applicable statute here is section 6 of
the CIA Act of 1949, which requires the CIA
to protect from disclosure “the organization,
functions, names, official titles, salaries, or
numbers of personnel employed by the
Agency.” 50 U.S.C. § 403g. This statute is
properly within the bounds of Exemption 3
because it leaves no discretion on the issue of
whether the information should be withheld
from the public. See Larson v. Dep’t of State,
565 F.3d 857, 865 n.2 (D.C. Cir. 2009). The
CIA deleted material from some of the
documents released to plaintiff pursuant to
Exemption 3. These deletions concerned the
CIA’s organization, functions, names and/or
official titles, and therefore meet the
requirements
of 50
U.S.C.
§ 403g.
Accordingly, the CIA properly withheld this
information pursuant to Exemption 3.
The CIA also withheld information
pursuant to Exemption 5. Exemption 5
protects
“inter-agency or
intra-agency
memorandums or letters which would not be
13
To qualify for this protection, the
document at issue must be an inter-agency or
intra-agency document
that
is
“(1)
predecisional, i.e., prepared in order to assist
an agency decisionmaker in arriving at his
decision, and (2) deliberative, i.e., actually . . .
related to the process by which policies are
formulated.” Nat’l Council of La Raza, 411
F.3d at 356 (internal quotation marks and
citation omitted); accord Tigue, 312 F.3d at
76. The documents must not be “merely
peripheral to actual policy formation” and
“‘must bear on the formulation or exercise of
policy-oriented judgment.’” Tigue, 312 F.3d at
80 (quoting Grand Cent. P’ship, 166 F.3d at
482). Also, “[p]urely factual material not
reflecting the agency’s deliberative process is
not protected.” Local 3, Int’l Brotherhood of
Electrical Workers v. NLRB, 845 F.2d 1177,
1180 (2d Cir. 1988). Finally, if “the agency
has chosen expressly to adopt or incorporate
by reference a memorandum previously
covered by Exemption 5 in what would
otherwise be a final opinion,” that
memorandum would not be protected by
Exemption 5. Nat’l Council of La Raza, 411
F.3d at 356 (internal quotations, alteration,
and citation omitted).
response forms in which the tasked
directorate commented on proposed
withholding recommendations for specific
records. The Court agrees that the
information at issue – namely, information
concerning a directorate’s predecisional
responses to a PIPD tasking and comments
about whether to withhold documents – is of
a deliberative nature and was properly
withheld under Exemption 5.
Based on the information set forth in the
affidavit, the Court concludes that the CIA
properly responded to plaintiff’s FOIA
requests. The CIA conducted a reasonable
and adequate search and appropriately
withheld certain documents pursuant to
Exemptions 3 and 5. Accordingly, the Court
grants summary judgment as the CIA.
IV. CONCLUSION
For the foregoing reasons, the Court
grants summary judgment to the defendants.
The Clerk of the Court shall enter judgment
accordingly and close the cases.
SO ORDERED
The CIA claims that the two documents
released to plaintiff on December 2, 2009
contained material that reflects the
predecisional recommendations of the
directorates, and that this information was
therefore properly deleted pursuant to
Exemption 5. Specifically, the two documents
are PIPD memos that contained predecisional
and deliberative information generated in
response to a PIPD tasking. (CIA’s 56.1 ¶ 31.)
Additionally, the CIA asserts that the six
documents withheld on December 2, 2009
were also predecisional and of a deliberative
nature. (Id. ¶ 32.) The documents were
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
February 22, 2012
Central Islip, NY
Plaintiff is representing himself pro se,
P.O. Box 170109, Ozone Park, New York,
11417. The attorney for defendants is Robert
B. Kambic, United States Attorneys’ Office,
610 Federal Plaza, Central Islip, New York,
11722.
14
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