HETZNECKER v. NATIONAL SECURITY AGENCY et al

Filing 17

MEMORANDUM AND/OR OPINION.SIGNED BY HONORABLE BERLE M. SCHILLER ON 1/20/17.1/20/17 ENTERED AND COPIES E-MAILED.(kw, ) (kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PAUL HETZNECKER,
Plaintiff,
v.
NATIONAL SECURITY AGENCY,
CENTRAL INTELLIGENCE
AGENCY, and FEDERAL BUREAU
OF INVESTIGATION,
Defendants.

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CIVIL ACTION

No. 16-945

MEMORANDUM
Schiller, J.

January 20, 2017

Paul Hetznecker represented various members of the “Occupy Philly” movement in a
civil action against the City of Philadelphia and certain police officials. After the conclusion of
that lawsuit, Hetznecker requested documents under the Freedom of Information Act (“FOIA”)
related to Occupy Philly from the National Security Agency (“NSA”), the Central Intelligence
Agency (“CIA”), and the Federal Bureau of Investigation (“FBI”). After the requests were
denied, Hetznecker commenced this action. The Defendants moved for summary judgment. The
Court ordered the agencies to submit documents for in camera review without deciding the
summary judgment motion. The NSA and the CIA moved the Court to reconsider its order.
FOIA grants broad discretion to district courts to conduct in camera review and exercising that
broad discretion, the Court will deny the motion.

I.

BACKGROUND
Under FOIA, Hetznecker requested documents concerning the Occupy Philly movement

from the NSA, CIA, and FBI. (Decl. David J. Sherman Ex. A; Decl. Antoinette B. Shiner Ex. A;

Decl. David M. Hardy Ex. A.) The NSA stated it could neither confirm nor deny whether it had
records responsive to Hetznecker’s request (known as a “Glomar Response” 1), claiming the
existence or nonexistence of the records is exempt from disclosure. (Decl. David J. Sherman 2.)
The CIA initially turned Hetznecker away, stating it was not involved in domestic law
enforcement and directing him instead to the FBI. (Decl. Antoinette B. Shiner Ex. B.) After
Hetznecker sued, the CIA also adopted a Glomar Response claiming Exemptions 1 and 3. (Id. at
7.)
The NSA, CIA, and FBI jointly moved for summary judgment. (Def.’s Mot. Summ. J.)
Without deciding the motion, the Court ordered the NSA and the CIA (collectively, “the
Agencies”) to conduct a search for responsive records, to compile Vaughn Indices 2, and to
submit the indices for in camera review. (Order, ECF No. 14.) In order to preserve the Glomar
Responses, the Court required the Agencies to submit the indices regardless of whether or not the
searches yielded any records. (Id. at ¶ 3.) If the Court deems additional review necessary, the
Court will order in camera disclosure of the agency records ex parte. (Id.) In response, the NSA
and the CIA filed for reconsideration of the Court’s Order. (Defs. NSA & CIA Mot. Recons.)

II.

STANDARD OF REVIEW
Motions for reconsideration are designed to “correct manifest errors of law or fact or to

present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985). The motion should only be granted when one of the following is established: “(1) an

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Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).
A “Vaughn Index” is “an affidavit that supplies an index of withheld documents and details the
agency’s justification for claiming an exemption.” Patterson v. FBI, 893 F.2d 595, 599 n.7 (3d
Cir. 1990).
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intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court granted the motion for summary judgment; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café by Lou-Ann, Inc.
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Motions for reconsideration should neither “raise
new arguments that could have been made in support of the original motion,” McNeal v.
Maritank Phila., Inc., Civ. A. No. 97-890, 1999 U.S. Dist. LEXIS 895, at *12 (E.D. Pa. Jan. 29,
1999), nor ask the court to “rethink a decision that it has already made,” Tobin v. Gen. Elec. Co.,
Civ. A. No. 95-4003, 1998 U.S. Dist. LEXIS 693, at *4 (E.D. Pa. Jan. 26, 1998).

III.

DISCUSSION
The NSA and the CIA argue that the Court committed a clear error of law when it

ordered in camera review following their Glomar Responses. (Mem. of Law in Supp. of Defs.
NSA and CIA Mot. for Recons. 7.) The Agencies also argue that the Court erred as a matter of
law by declining to decide if the Agencies’ pubic affidavits are sufficient to justify the Glomar
Responses before ordering in camera review. (Id. 8.) Because the Court did not commit a clear
error of law in ordering in camera review, there is no need to evaluate the Glomar Responses.
A.

Discretion and In Camera Review

The purpose of FOIA is to “contribute significantly to public understanding of the
operations or activities of the Government.” U.S. DOJ v. Reporters Comm. For Freedom of
Press, 489 U.S. 749, 775 (1989) (quoting 5 C.F.R. § 2604.503(c)(1)). FOIA accomplishes this by
requiring agencies to make certain information available for public inspection. 5 U.S.C. § 552(a).
Agencies may claim certain records exempt from FOIA if they fall into one of nine enumerated

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categories, including national security (Exemption 1) and exempt by statute (Exemption 3). §
552(b).
Under FOIA, the judiciary oversees government agency action through both lawsuits
filed by private parties and in camera review. 5 U.S.C. § 552(a)(4)(B). District courts have
“broad discretion in determining whether in camera review is appropriate.” Armstrong v. Exec.
Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). “In both the ordinary and the
exceptional case,” the Third Circuit authorizes “in camera affidavits and submissions.” Lame v.
U.S. Dep’t of Justice, 654 F.2d 917, 922 (3d Cir. 1981). “In camera inspection does not depend
on a finding or even tentative finding of bad faith.” Ferri v. Bell, 645 F.2d 1213, 1226 (3d Cir.
1981).
Before resorting to in camera review, the district court “must strive to make the public
record as complete as possible.” Patterson v. FBI, 893 F.2d 595, 599 (3d Cir. 1990), cert. denied,
480 U.S. 812 (1990). However, “to the extent that any public affidavits may appear sufficiently
descriptive, it may nonetheless be necessary for the district court to examine the withheld
documents in camera to determine whether the agency properly characterized the information as
exempt.” Id. This is true even in the Glomar context where a public “Vaughn Index would
require an agency to disclose the very information that it seeks to withhold.” Id.
The facts of Patterson are relevant to the disposition of this motion. Patterson involved a
sixth-grader’s quest to compile an encyclopedia of the world by requesting information via
letters from 169 different countries. Id. at 597. The flood of responses attracted the attention of
the FBI, which sent an agent in late 1983 to interview the young Patterson and his parents. Id.
The FBI maintained that its investigation of Patterson ended in 1983, yet the Pattersons claimed
that after 1983, their mail was still tampered with and their phone lines were still tapped. Id. at
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598. Following Patterson’s FOIA request for his investigatory file, the FBI filed for summary
judgment, asserting the requested records fell under Exemption 1 of FOIA. Id. After oral
argument on the motion for summary judgment, the district court ordered in camera review of
the FBI’s records. Patterson v. FBI, 705 F. Supp. 1033, 1038 (D.N.J. 1989). While Patterson
occurred before “Glomar Response” made its way into legal parlance, 3 the existence or
nonexistence of records post-1983 was in dispute. A public Vaughn Index of all of the FBI’s
records on Patterson would disclose whether or not surveillance continued after 1983, a fact
which the FBI claimed fell under Exemption 1 of FOIA. Nevertheless, the Third Circuit upheld
the district court’s exercise of discretion in ordering in camera review even when the district
court “found that [the] affidavits constituted sufficient proof of the privileged nature of the
withheld information.” Patterson, 893 F.3d at 599. In other words, even with a sufficiently
detailed affidavit, the district court may still conduct in camera review when the agency claims
the existence or nonexistence of certain records falls under an exemption of FOIA. See id.
In this case, the Agencies asserted Glomar Responses on summary judgment and
submitted public affidavits. The Court subsequently ordered the Agencies to each compile and
submit a Vaughn Index in camera. While the Court reserves judgment on the sufficiency of the
affidavits, even if they are sufficient, Patterson allows the district court to conduct in camera
review at this stage. Id.

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Patterson does not use the exact phrase “Glomar Response” because the phrase was not coined
until Benavides v. Drug Enforcement Agency, which the D.C. Circuit decided two years later.
968 F.2d 1243, 1245 (D.C. Cir. 1992) (“This is called a Glomar [R]esponse, after Phillippi v.
Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976), which concerned a request for
records about the “Glomar Explorer.’”). Both Patterson and Benavides cite Phillippi. Id.;
Patterson, 893 F.2d at 599.
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“Who will watch the watchmen?” Juvenal, The Satires, Book 6, line 347 (“Quis custodiet
ipsos custodes?”). Without this important judicial oversight, agencies would become judge and
jury of their own characterizations of records. Courts often defer to agencies on national security
as the agency’s “information, experience, and expertise” are matters generally outside of the
Court’s purview. Am. Friends Serv. Comm. v. U.S. Dep’t of Def., 831 F.2d 441, 447 (3d Cir.
1987). But the district judge must make a final determination at summary judgment, and in
camera review aids in that process. Ferri v. Bell, 645 F.2d 1213, 1226 (3d Cir. 1981) (“[W]hen
the district judge is concerned that he is not prepared to make a responsible de novo
determination in the absence of in camera inspection, he may proceed in camera without anxiety
that the law interposes an extraordinary hurdle to such an inspection.”).
Because this is a purely domestic record request of two internationally-focused agencies,
the Court feels it must tread carefully, taking all responsible steps in order to arrive at the correct
outcome. It therefore behooves the court to exercise its discretion under FOIA to conduct in
camera review.
B.

Glomar and the Court’s Order

Parties may assert Glomar Responses where the “fact of the existence or nonexistence of
agency records falls within a FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)
(citing Phillippi, 546 F.2d at 1011). In order to protect the integrity of the Agencies’ Glomar
Responses, the Court’s Order took steps to ensure that the fact of the existence (or not) of agency
records would not be disclosed to the public. The Court required the NSA and the CIA to each
conduct a search for responsive records as a necessary precondition to compiling a Vaughn
Index. Once the search is completed and the indices compiled, the Agencies must submit a
Vaughn Index in camera “whether or not the above searches yield[ed] any responsive records.”
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(Order, ECF No. 14 ¶ 4.) Moreover, should either Vaughn Index prove insufficient and the Court
require an examination of the agency records in camera, the subsequent Order will be filed ex
parte.
After the Agencies’ in camera disclosures, the Court will be able to rule on the
outstanding summary judgment motion. In the interim, Hetznecker and the general public will
not be privy to any further interactions, if they occur, between the Court and the Agencies since
the Court will conduct them ex parte. Thus, the Court’s order preserves the status quo by not
revealing to Hetznecker or to the public whether documents responsive to his request exist and
the Agencies suffer no manifest injustice.

IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion for reconsideration is denied. An Order

consistent with this Memorandum will be docketed separately.

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