Case 1:15-cJvU-0D2G38R3F-KOBRFREDSoTcument 1 Filed 03/31/15 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE,
Plaintiffs,
-againstNATIONAL SECURITY AGENCY,
Defendant.

X l.J.S.D.C. S.D. N.Y. CASHIERS
COMPJ_JAINT

Plaintiffs THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, by their undersigned attorneys, allege for their Complaint:
1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), to order the production of agency records from Defendant National Security Agency ("NSAu) in response to a request properly made by Plaintiffs The New York Times Company and Charlie Savage (collectively "The Times").
PARTIES 2. Plaintiff The New York Times Company publishes The New York Times newspaper. T-he New-¥'ork: 2fimes Company is headquartered in this judiGial distr-ict at 620 Eighth Avenue, New York, New York. 3. Plaintiff Charlie Savage is a reporter for The New York Times.
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4. Defendant NSA is an agency of the federal government that has possession and control of the records that Plaintiffs seek.
JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B).
6. Venue is premised on the place of business of Plaintiffs and is proper in this district under 5 U.S.C. § 552(a)(4)(B).
7. Plaintiffs have exhausted all administrative remedies available in regards to the request at issue. NSA failed to respond to the request within the time frames set by FOIA, and therefore Plaintiffs are deemed to have exhausted all administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C).
FACTS
8. On January 12, 2015, M_r. Savage submitted a FOIA request (the "Request") to NSA seeking certain reports prepared by the NSA Inspector General.
9. The Request sought "copies of - and declassification review of, as necessary- all NSA Inspector General Reports related to:
• "the agency's content collection activities under the FISA Amendments Act section 702 and the predecessor law, the Protect America Act;
• ''bulk phone records collection activities under Section 215 of the Patriot Act (the 'FJSA Business Records' program);
• "bulk Internet metadata collected under the FJSA pen register/trap and trace provision (the "FISA PRffT" program)."
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10. The Request further specified that the requested documents include, but

are not limited to, "the special study assessing management controls over FAA §702 referenced in Section TI-C of the March 4, 2013, report on NSA activities information memorandum from George Ellard and Rajesh De to the Intelligence Oversight Board, which was recently made public here: https://www.nsa.gov/public_info/_files/IOB/FY2013_ 1Q_IOB_Report.pdf."
11. The Request further requested expedited processing. 12. By a letter dated January 14, 2015, and redelivered on February 19, 2015, NSA denied the request for expedited processing. The letter did not address any other aspect of

the Request. 13.

There has been no further communication from NSA regarding the

Request. 14. NSA's substantive response to the Request, either producing documents
or denying the request in accordance with FOIA, was due no later than 20 business days after

receipt of the request.

COUNT 15. Plaintiffs repeat, reallege, and reincorporate the allegations in the foregoing paragraphs as though fully set forth herein. 16. NSA is an agency subject to FOIA and must therefore release in response to a FOIA-request-any-diselosable records in-its-possession at the time of the request and prov-icle~~~­ a lawful reason for withholding any other materials as to which it is claiming an exemption. 17. Under 5 U.S.C. § 552(a)(6)(A), NSA was required to provide documents or issue a denial within 20 business days of receiving the Request.
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18. Under 5 U.S.C. § 552(a)(6)(C), a person making a request for materials under FOIA "shall be deemed to have exhausted his administrative remedies with respect to such a request if the agency fails to comply with the applicable time limit provisions" of FOIA.
19. Accordingly, The Times is deemed to have exhausted its administrative remedies as to the Request.
20. NSA has asserted no lawful basis under FOIA for withholding documents asked for by the Request.
21. NSA's failure to provide responsive documents violates FOIA. 22. Accordingly, The Times is entitled to an order compelling the NSA to undertake an adequate search of its records and produce the documents sought by the Request.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a. Declare that the documents sought by the Request, as described in the foregoing paragraphs, are public under 5 U.S.C. § 552 and 5 U.S.C. § 552(a) and must be disclosed;
b. Order NSA to undertake an adequate search for the requested records and provide those records to Plaintiffs within 20 business days of the Court's order;
c. Award Plaintiffs the costs of this proceeding, including reasonable attorney's fees, as expressly pennitted by FOIA; and
d. Grant Plaintiffs such other and further relief as this Court deems just and proper.
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Case 1:15-cv-02383-KBF Document 1 Filed 03/31/15 Page 5 of 5

Dated: New York, New York March 31 , 2015

David E. McCraw, Esq. Jeremy A. Kutner, Esq. Legal Depa.ttment The New York Times Company 620 8th Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-1009
e-mail: mccraw@nytimes.com
Counsel for Plaintiffs

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 Case 1:15-cv-02383-KBF Document 10 Filed 05/15/15 Page 1 of 2
U.S. Department of Justice United States Attorney Southern District ofNew York

86 Chambers Street New York, New York 10007

By Electronic Mail
Honorable Katherine B. Forrest United States District Judge United States Courthouse 500 Pearl Street New York, NY l 0007 ForrestNYSDChambers@nysd.uscourts.gov

May 11, 2015

~11

11

DOClntE~T

!j

ELECTRONICALLY FILED

DOC#:_ _ _ ___,,,___--
DATE FILE1*AY 1 5 2015

Re: The New York Times Co. and Charlie Savage v. National Security Agency, 15 Civ. 2383 (KBF)

Dear Judge Forrest:

This Office represents the National Security Agency ("NSA"), the defendant in the above-referenced matter brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). In accordance with Section 4.8.ii. l of the Court's Individual Rules of Practice in Civil Cases, and as authorized by the Court's April 15, 2015, order, see Dkt. No. 7, the parties submit this joint scheduling proposal in lieu of the Court's standard Scheduling Order form. For ease of reference, the numbered paragraphs in this letter track the numbered paragraphs in the Court's standard Scheduling Order.

( 1) All parties do not consent to conducting all further proceedings before a United States Magistrate Judge.

(2) On each of the three dates listed below, NSA will complete processing of approximately onethird of the total number of documents responsive to Plaintiffs' January 12, 2015, FOIA request, and will release all records or information contained in such documents that are not exempt under FOIA:

• August 11, 2015 • November I0, 2015 • February 10, 2016

(3) The parties do not anticipate that there will be any need for expert discovery in this matter.

(4) Not applicable to this FOIA action.

1111 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Case 1:15-cv-02383-KBF Document 10 Filed 05/15/15 Page 2 of 2
(5) If the parties are unable to resolve this case through settlement, they anticipate that they will file motions for summary judgment regarding the propriety ofNSA's decisions to withhold information from documents pursuant to various FOIA exemptions. The parties propose the following schedule: • NSA's motion for summary judgment: March 11, 2016 • Plaintiffs' opposition and cross-motion for partial summary judgment: April 1, 2016 • NSA's reply/opposition brief: April 22, 2016 • Plaintiffs' reply brief: April 29, 2016
(6) In the absence of a consensual resolution, the parties anticipate that this matter will be resolved based on the aforementioned summary judgment motions, and that there will not be any need for trial. We thank the Court for its consideration of this matter. Respectfully submitted, PREET BHARARA United States Attorney for the Southern District of New York By: Isl Andrew E. Krause JOHN D. CLOPPER EMILY E. DAUGHTRY ANDREW E. KRAUSE Assistant United States Attorneys Telephone: (212) 637-2716/2777/2769 Facsimile: (212) 637-0033 E-mail: john.clopper@usdoj.gov emily.daughtry@usdoj.gov andrew.krause@usdoj.gov
cc: David E. McCraw, Esq.
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 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------ X

:

THE NEW YORK TIMES COMPANY and

:

CHARLIE SAVAGE,

:

:

Plaintiffs,

:

:

-v-

:

:

NATIONAL SECURITY AGENCY,

:

:

Defendant. :

:

------------------------------------------------------------------ X

KATHERINE B. FORREST, District Judge:

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: August 25, 2016
15-cv-2383 (KBF) OPINION & ORDER

In this action, the newspaper the New York Times and one of its reporters,

Charlie Savage (collectively, the “New York Times” or “Times”) challenge three

redactions to two documents produced by the National Security Agency (the “NSA”

or “Agency”) in response to a Freedom of Information Act (“FOIA”) request. The

parties have cross-moved for summary judgment as to the propriety of these

redactions. (ECF Nos. 15 & 19.) For the reasons stated below, the NSA’s motion is

GRANTED and the New York Times’ motion is DENIED.

I. FACTUAL BACKGROUND

A. Procedural History

On January 12, 2015, the New York Times submitted a FOIA request to the

NSA pursuant to 5 U.S.C. § 552. (ECF No. 1 ¶¶ 1, 8.) The Times sought “copies of –

and declassification review of, as necessary – all NSA Inspector General Reports

related to” three topics: “the agency’s content collection activities under the FISA

Amendments Act section 702 and the predecessor law, the Protect America Act;” “bulk phone records collection activities under Section 215 of the Patriot Act (the ‘FISA Business Records’ program);” and “bulk Internet metadata collected under the FISA pen register/trap and trace provision (the ‘FISA PR/TT’ program).” (Id. ¶ 9; ECF No. 21 Exh. A.) The NSA did not provide a substantive response within 20 days as required by FOIA, and on March 31, 2015, the Times filed this action.
After the Agency answered the complaint (ECF No. 8), the parties jointly agreed to a schedule under which the NSA would process and release all nonexempt responsive documents in three batches, on August 11, 2015, November 10, 2015, and February 10, 2016. (ECF No. 10.) The NSA engaged in an extensive declassification process and released hundreds of pages of material, many of which contained redactions. (ECF No. 20 at 2; ECF No. 13.) Following the three releases, the New York Times challenged certain redactions, some of which the NSA agreed were appropriate for publication in a supplemental release. (ECF No. 13.) The Times and other media outlets have discerned important insights and published numerous stories from the full roster of released documents. (ECF No. 20 at 3 & nn. 3 & 4.)
B. The Reports at Issue The remaining conflict between the Times and the Agency concerns three redactions in two NSA Inspector General Reports. The first report is five pages long and titled “Report on the Special Study of NSA’s Purge of Pen Register and Trap and Trace Bulk Metadata” (the “PR/TT Report”). (ECF No. 21 Exh. B.) The
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“Overview” section of the Report explains that it summarizes the Office of the NSA Inspector General’s “special study of the Agency’s processes to destroy Pen Register and Trap and Trace (PR/TT) bulk metadata from its declared systems, databases, and backups before the authority expired on 9 December 2011.”1 (Id. at 1.)
The redaction the New York Times challenges is found on the first and second pages of the Report, in a section titled “Background.” This section explains that between July 2004 and December 2011 the NSA, “with the assistance of certain U.S. telecommunications service providers, collected, processed, and analyzed metadata from Internet communications to obtain foreign intelligence information.” (Id.) It further states that “[i]n early 2011, the Signals Intelligence Directorate (SID) conducted an examination of the NSA PR/TT program to assess its value,” which “revealed that the PR/TT program was not producing valuable foreign intelligence information after the program had been reinitiated.” (Id.) The Signals Intelligence Directorate then requested that the Director of the NSA terminate the PR/TT program and “identified several limitations that contributed to the program’s inability to meet expectations.” (Id.) A list of four such limitations follows. One, the fact that “[o]ther authorities can satisfy certain foreign intelligence requirements that the PR/TT program was designed to meet,” is not redacted; the other three are redacted in their entirety. (Id. at 1-2.)
1 The Sherman declaration, discussed further below, provides further background information about the PR/TT program, through which the government acquired metadata, such as the “to” and “from” lines in an email and the date and time it was sent, but not its contents. (ECF No. 17 ¶ 19.)
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The second report relevant to the instant motion is forty-six pages long and titled “Report on the Special Study: Assessment of Management Controls Over FAA §702” (the “§ 702 Controls Report”). (ECF No. 21 Exh. C.) A cover sheet explains that the Report summarizes the Office of the NSA Inspector General’s “special study of management controls that ensure compliance with Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA §702) and the Targeting and Minimization Procedures associated with the 2011 Certifications.”2 (Id.)
The first redaction the New York Times challenges in the § 702 Controls Report is on the first page, in the section titled “Background.” (Id. at 1.) Under the subheading “Requirements of FAA §702,” the Report states that “[t]he target of collection must be a non-U.S. person (USP) who is reasonably believed to be located outside the United States and possesses, is expected to receive, and/or is likely to communicate foreign intelligence”. (Id.) The next several words are redacted and followed by the words “FAA § 702 Certifications:” (Id.) The paragraph beginning on the next line is redacted in its entirety; it is this redaction the Times challenges.
The second redaction at issue in the § 702 Controls Report comes on the twentieth page, in the section titled “FINDINGS AND RECOMMENDATIONS.”
2 The Sherman declaration, discussed further below, provides further background information about the NSA’s activities pursuant to § 702, which is codified at 50 U.S.C. § 1881a. (ECF No. 17 ¶¶ 31-36.) Section 702 authorizes the Attorney General and the Director of National Intelligence to jointly authorize the targeting of non-United States persons reasonably believed to be outside the United States for foreign intelligence information. Each instance of this targeting requires that the Foreign Intelligence Surveillance Court first approve of an annual certification and affidavit filed by the Attorney General and the Director of National Intelligence which sets forth how the targeting will comply with limiting and minimization requirements. See 50 U.S.C. § 1881a(g).
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(Id. at 13.) This section encompasses six separate findings and eleven related recommendations. (Id. at 13-37.) Although five of the findings and ten of the recommendations are at least partially disclosed, the second finding and associated third recommendation are in effect entirely redacted. (Id. at 19-20.) Only a portion of the title of the finding, “Certain FAA §702 Selectors,” one subheading stating “Verification that Authorized Selectors Are on Collection,” and a reference to the title, but not content, of a 2008 Office of the Inspector General report are not redacted from the finding. (Id. at 19.) Within the recommendation, with one exception, only headings such as “ACTION” and “Management Response,” but not the content following, is not redacted. (Id. at 20.) The exception is the final comment from the Inspector General, which reads “Planned action satisfies the intent of the recommendation.” (Id.) The Times challenges the redaction of the recommendation.
C. The Sherman Declaration In support of its motion for summary judgment, the NSA submitted a declaration from David J. Sherman, the Agency’s Associated Director for Policy and Records and the official responsible for processing FOIA requests for NSA records. (ECF No. 17 ¶ 1.) Sherman is “a TOP SECRET original classification authority (‘OCA’) pursuant to Section 1.3 of Executive Order (‘E.O.’) 13526.” (Id. ¶ 2.) He was responsible for asserting FOIA exemptions on the materials disclosed in this case. (Id.)
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Sherman’s declaration sets out the NSA’s reasoning for the challenged redactions.3 According to the declaration, the redacted information falls within three of the categories of information which can be properly classified under E.O. 13526: § 1.4(c), which covers “intelligence activities (including covert action), intelligence sources or methods, or cryptology;” § 1.4(d), which covers “foreign relations or foreign activities of the United States, including confidential sources;” and § 1.4(g), which covers “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security.” (Id. ¶ 11.) Sherman further declared that the information was not classified for an improper purpose, such as concealing violations of law or preventing embarrassment, and that the withheld information is more specific than any previously released information on the same topics. (Id. ¶¶ 13-14.) In a separate section, Sherman attests that no portion of the challenged redactions could have been reasonably segregated and publicized; while some information viewed in isolation could be considered unclassified, if disclosed in the contexts of these reports even these seemingly mundane portions could reveal classified information. (Id. ¶¶ 44-45.)
The declaration then addresses the specific redactions at issue in this litigation. As to the PR/TT Report, Sherman explains that while one of the four
3 The NSA argues that each of the challenged redactions are covered by both FOIA Exemption 1, 5 U.S.C. § 552(b)(1), and FOIA Exemption 3, id. § 552(b)(3). (ECF Nos. 16 & 17.) As discussed below, the Court finds that the NSA acted properly pursuant to Exemption 1. Because “courts may uphold agency action under one exemption without considering the applicability of the other,” the Court limits its discussion to the facts relevant to Exemption 1. Wilner v. NSA, 592 F.3d 60, 72 (2d Cir. 2009) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862-63 (D.C. Cir. 2009)).
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operational limitations identified by the Signals Intelligence Directorate had been previously disclosed and was thus not redacted, the remaining three were currently and properly classified at the Top Secret level, meaning their release could reasonably be expected to cause exceptionally grave damage to the national security. (Id. ¶¶ 20-21.)
According to Sherman, disclosure of these limitations would reveal the capabilities and limitations of the PR/TT program, thereby providing the country’s adversaries with insight into both the likelihood that prior communications were collected and the efficacy of particular countermeasures to protect current communications. (Id. ¶ 22.) The limitations also include operational details, such as technical means and analytic tools and methodologies, which have not been disclosed and which could alert adversaries to the government’s awareness of specific countermeasures and tradecraft. (Id. ¶¶ 23-24.) Although the PR/TT program has been discontinued, Sherman’s declaration explains, the NSA still collects certain electronic metadata pursuant to other authorities, and revealing the success or lack thereof of the PR/TT program would thus risk exposing ongoing efforts. (Id. ¶ 25.) Finally, information about the NSA’s technological capabilities might assist other countries’ efforts to develop their own metadata collection program to target the United States. (Id. ¶ 26.)
As to the § 702 Controls Report, the declaration first states that the redacted information on page one “pertains to the number and categories of certifications made pursuant to Section 702 of the FAA.” (Id. ¶ 31.) Sherman attests that this
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information is currently and properly classified at the Secret / No Foreign Nationals level, meaning its release could reasonably be expected to cause serious damage to the national security. (Id. ¶ 37.) According to the declaration, disclosure of the number and categories of certifications would reveal the NSA’s ability to collect intelligence or lack thereof and thereby provide adversaries with insight into whether § 702 targeting had been potentially applied to their communications and how they could tailor their communications to escape such targeting. (Id. ¶¶ 38-39.)
As to the redacted recommendation information on page twenty of the § 702 Controls Report, Sherman attests that “[t]his information consists of technical aspects and procedures of NSA’s collections under Section 702 of the FAA,” and is currently and properly classified Top Secret. (Id. ¶ 42.) The declaration explains that the redacted information contains “granular detail” which, if revealed, would indicate important information about “the sophistication of NSA’s SIGINT system” and aid efforts to implement countermeasures. (Id.) II. LEGAL PRINCIPLES
A. Summary Judgment Standard Summary judgment is warranted if “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). FOIA litigation is typically resolved on summary judgment. Carney v. Dep’t of Justice, 19 F.3d 807, 812-13 (2d Cir. 1994). When an agency withholds material under a FOIA exemption, “[t]he agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be
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resolved in favor of disclosure.” New York Times Co. v. Dep’t of Justice, 756 F.3d 100, 112 (2d Cir. 2014) (quoting Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009)). This burden can be met through the submission of “affidavits or declarations giving reasonably detailed explanations why any withheld documents fall within an exemption.” Id. (alteration omitted) (quoting ACLU v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012)). Such declarations are “accorded a presumption of good faith.” Carney, 19 F.3d at 812. If the affidavits describe the justification for nondisclosure logically and in sufficient detail “and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith,” summary judgment for the agency is appropriate. Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 772, 776 (D.C. Cir. 1984)). If one exemption is upheld, the Court need not consider the applicability of another. Wilner, 592 F.3d at 72.
B. FOIA Exemption 1 The FOIA statute operates generally as a requirement that agencies disclose information upon request. See 5. U.S.C. § 552(a) (“Each agency shall make available to the public information as follows:”); id. § 552(a)(3)(A). The same statute also lists a number of categories of materials to which “[t]his section does not apply.” Id. § 552(b). The first exemption, and the one relevant to the instant matter,4 carves out matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national
4 See supra note 3.
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defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” Id. § 552(b)(1).
The current standard for classification is set forth in Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Section 1.1 of that order lists four requirements for the classification of national security information: (1) “an original classification authority” must classify the information; (2) the information must be “owned by, produced by or for, or … under the control of the United States Government;” (3) the information must “fall[] within one or more of [eight] categories of information” listed elsewhere in the order; and (4) the original classification authority must “determine[] that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security,” which damage the authority can identify and describe. “Original classification authorities” include government officials delegated this authority in accordance with procedures and limitations set forth in E.O. 13526. Id. § 1.3(a)(3). The eight relevant categories of information include, as relevant to this case, information that pertains to “intelligence activities (including covert action), intelligence sources or methods, or cryptology;” “foreign relations or foreign activities of the United States, including confidential sources;” or “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security.” Id. § 1.4. Information can never be properly classified “in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4)
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prevent or delay the release of information that does not require protection in the interest of the national security.” Id. § 1.7.
Even where a FOIA exemption applies, the withholding must be narrow, such that “[a]ny reasonably segregable portion of a record shall be provided … after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). This provision does not require disclosure of non-exempt material rendered meaningless by surrounding deletions, see Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 178 (2d Cir. 2014), nor does it require disclosure of facially mundane material that is classified because it could, in context, reveal national security information and pose a harm. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009).
FOIA Exemption 1 is, like the other exemptions, to be construed narrowly. Dep’t of Air Force v. Rose, 425 U.S. 352, 366 (1976); New York Times Co. v. Dep’t of Justice, 756 F.3d 100, 111-12 (2d Cir. 2014). At the same time, however, courts must pay careful attention to “the relative competencies of the executive and judiciary” in the arena of national security. Wilner, 592 F.3d at 76. Courts do so by giving not only a presumption of good faith but in fact “substantial weight” to agencies’ affidavits regarding national security. ACLU v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012). Thus, rather than undertaking a detailed, searching review of an agency’s opinions regarding the harm to the country posed by disclosure of withheld information, courts should instead ask whether the government’s arguments for nondisclosure are plausible and logical and, if so, uphold the
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application of the exemption. ACLU v. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir. 2011); Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). III. ANALYSIS
As discussed above, the New York Times challenges three separate redactions in the two Inspector General reports at issue. The Court addresses each of the redactions independently and then addresses the Times’ argument that the Court should conduct in camera review of the reports prior to rendering a decision.
A. The Redaction in the PR/TT Report Associate Director Sherman provided a detailed explanation for the challenged redaction of three operational limitations in the PR/TT Report. He specifically affirmed that the information is currently and properly classified Top Secret, and explained that the withheld portion of the report includes details about the National Security Agency’s capabilities and limitations which, if revealed, would tend to inform adversaries about both the likelihood that specific communications were captured in the past and the efficacy of certain countermeasures. Sherman’s declaration also states that the withheld information includes operational details about the technical means and analytic methods by which the NSA collected metadata, and that revealing these details would, among other things, both reveal the government’s knowledge of specific tradecraft practiced by adversaries and assist adversaries’ efforts to develop their own metadata collections programs targeting the United States.
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The Sherman declaration thus contains a detailed, logical, and plausible explanation for why the challenged redaction in the PR/TT Report fits within FOIA Exemption 1. Although the Times advances several arguments regarding the strength of this explanation, none succeed in portraying it as illogical or implausible.
First, the Times points out that the PR/TT program that is at issue in the report was discontinued nearly five years ago; indeed, the focus of the Report is the Agency’s purge of recorded bulk metadata following the expiration of the relevant authority. However, the fact that the specific program at issue is no longer operational does not answer the question of whether the redacted information is properly classified. The Sherman declaration specifically notes that the NSA remains authorized to acquire certain other metadata pursuant to different programs. It is certainly logical to limit information about the capabilities and vulnerabilities of a discontinued program where doing so could reveal the capabilities and vulnerabilities of ongoing programs. See Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 507-08 (S.D.N.Y. 2010) (upholding FOIA Exemption 1 redaction of information about discontinued practices).
The Times also argues that the NSA’s disclosures to date on topics similar to the withheld limitations cut against the claims of harm in the Sherman declaration. It points out that the undisclosed portions of the PR/TT Report indicate that the program was not meeting expectations and that the Agency could meet certain of the goals of the PR/TT program through alternative means. These points do not,
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however, undercut the explanation the Agency has offered. The Sherman
declaration does not describe the harms that would follow from any disclosure of the
Agency’s bulk metadata program, but instead focuses on the specific operational
and historical details contained in the three redacted limitations. The entire
statutory structure of FOIA and its exemptions anticipates a line-drawing exercise
and the disclosures to date are not of the kind that would suggest no identifiable
harm could come from further disclosure. See, e.g., Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 835 (D.C. Cir. 2001).
The final point of discrete dispute as to the redactions in the PR/TT Report
relates to the level of generality of the redacted limitations, which can be
imperfectly inferred by reference to the non-redacted third limitation. The New
York Times argues that this limitation is at a sufficiently high level of generality to
suggest that disclosure of the other limitations would not convey actionable
information. The NSA disputes the characterization. The passage reads, in its
entirety:
3. Other authorities can satisfy certain foreign intelligence requirements that the PR/TT program was designed to meet. The Supplemental Procedures Governing Communications Metadata Analysis (SPCMA), which SID implemented widely in late 2010, allows NSA to call-chain from, to, or through U.S. person selectors in Signals Intelligence collection obtained under a number of authorities. In addition, notwithstanding restrictions stemming from the FISC’s recent concerns regarding upstream collection, FAA §702 has emerged as another critical source for collection of Internet communications of foreign terrorists. Thus, SPCMA and FAA §702 assist in the identification of terrorists communicating with individuals within the United States, which addresses one of the original reasons for establishing the PR/TT program in 2004.
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Taking this non-redacted passage as imperfectly representative of the level of detail contained in the redacted passage, they are not so general that the harm anticipated in the Sherman declaration becomes illogical or implausible. The disclosed passage describes how certain NSA programs developed over time to capture particular forms of information and meet particular goals. Although these are not highly technical details, they are certainly at a level that provides insight and clarification about NSA practices and capabilities, precisely the kind of damage Sherman invokes in his explanation that the redacted limitations are properly classified at the Top Secret level. The Court thus does not agree that the redacted information is only a high-level summary which could not logically harm the country if released.
As a result of the above, the Court concludes that the NSA’s explanation for its continued redaction of three operational limitations in the PR/TT Report is logical, plausible, and contains the requisite reasonable detail to carry the Agency’s burden of proving the applicability of FOIA Exemption 1.
B. The First Redaction in the § 702 Controls Report Associate Director Sherman’s declaration also provided a detailed and logical explanation for the NSA’s decision to withhold the paragraph on the first page of the § 702 Controls Report. This information, according to Sherman, “pertains to the number and categories of certifications made pursuant to Section 702 of the FAA.” The NSA explains that revealing such information would reveal important details about the scope and limitation of the Agency’s § 702 program which would both
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provide insight as to the likelihood that prior communications were intercepted and as to potential manners of tailoring future communications in order to evade searches under this ongoing authority.
The New York Times challenges the adequacy of this explanation on multiple grounds. It argues that a list of the number and categories of § 702 certifications is too inexact to pose the threat Sherman identifies, analogizing the disclosure of such information to “the FBI report[ing] on the number of wiretap applications and the types of investigations in which they were used.” (ECF No. 20 at 17.) The NSA persuasively responds that, in fact, publicizing the fact that the FBI did not use wiretaps to investigate particular forms of crime would in fact pose a threat, and that the same logic applies to the categories of § 702 certifications at issue. Similarly, the number of targets investigated under § 702 authority, both at any one time and in trends over time, could logically and plausibly inform adversaries of the likelihood that past communications had been, and future communications would be, targeted.
Another challenge the Times advances is to the breadth of the redaction. The Times argues that it is unlikely that the entire redacted paragraph only contains the number and category of certifications. In the Court’s view, there is little basis for this hypothesis. The PR/TT and § 702 Controls Reports are more consistent with a good faith effort to disclose non-classified information. Although certain sections (like the finding and recommendation discussed below) are redacted almost in their entirety, the more prevalent pattern is the redaction of particular sentences
16

and words, rather than entire paragraphs. In light of that practice on the Agency’s part, the Court does not agree that there is a credible basis to believe that the redacted paragraph contains more than Sherman indicates in his declaration.
The New York Times pursues a related argument when it suggests that there is reason to suspect that the redacted paragraph contains the NSA’s legal analysis of § 702, and as such constitutes “working law.” See Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544, 548 (2d Cir. 1978). Setting aside the fact that working law doctrine is a limitation on FOIA Exemption 5, which is not at issue, see Brennan Ctr. v. Dep’t of Justice, 697 F.3d 184, 195 (2d Cir. 2012), there is simply no basis to believe that the redacted paragraph contains such information. The Sherman declaration does not mention legal analysis, and the NSA clarified in a sur-reply that “the withheld information is not legal analysis.” (ECF No. 28 at 1.) Moreover, the context of the redaction is consistent with the redaction covering only the number and categories of certifications. The line immediately before the redaction, “FAA §702 Certifications:” ends with a colon. So too does the paragraph that follows the redaction, and that colon is followed by a bulleted list of categories of content found in the certifications. The context of the redaction is thus more consistent with the NSA’s description of the redacted paragraph, which could naturally follow the phrase “FAA §702 Certifications:” than with the Times’ description, which would not as naturally fit.
As a result of the above, the Court concludes that the NSA’s explanation for its continued redaction of a paragraph on page one of the § 702 Controls Report is
17

logical, plausible, and contains the requisite reasonable detail to carry the Agency’s burden of proving the applicability of FOIA Exemption 1.
C. The Second Redaction in the § 702 Controls Report With regard to the final challenged redaction, on page 20 of the § 702 Controls Report, Associate Director Sherman’s declaration presents an explanation for the Agency’s view that the information is currently and properly classified Top Secret. According to Sherman, the redacted information in Recommendation 3 consists of technical aspects and procedures of NSA’s collections under § 702. The declaration further states that the redacted information contains “granular detail” which, if disclosed, would publicize the sophistication of the NSA’s efforts and aid adversaries’ efforts to evade collection. The New York Times argues that the proffered explanation for the redaction is inadequate in light of two related facts: first, that the redacted recommendation is one of eleven, all the others of which have been at least partially, if not entirely, disclosed; and second, that the challenged redaction is effectively total, rather than segregating out some limited information which could be disclosed. In the Times’ view, the Sherman declarations explanations relating to Recommendation 3 were too vague and conclusory and failed to address the questions raised by these observations of the redaction’s context. As the Times recognizes, the same facts can be subject to competing interpretations. The redaction of only one of eleven recommendations could be evidence of a judicious application or redactions or could raise questions as to why
18

the eleventh was so much more dangerous to disclose than the other ten. Sherman’s declaration offers an answer: only this recommendation contains granular technical details about improving collection procedures and methods. That explanation is entitled to a presumption of good faith, and the Times does not proffer any evidence that contradicts it.
The explanation that Recommendation 3 is categorically different from the other ten recommendations in the § 702 Controls Report is also bolstered by the redactions to Finding 2, which Recommendation 3 addresses. As is the case for the other ten recommendations, a majority of each of the other five findings is disclosed. As is the case for Recommendation 3, Finding 2 is almost entirely redacted. Redaction of both the problem and the attempt to fix it is consistent with Sherman’s statement that Recommendation 3 concerns technical aspects and procedures that would provide insight into the NSA’s capabilities and limitations.
As a result of the above, the Court concludes that the NSA’s explanation for its continued redaction of Recommendation 3 on page 20 of the § 702 Controls Report is logical, plausible, and contains the requisite reasonable detail to carry the Agency’s burden of proving the applicability of FOIA Exemption 1.
D. In Camera Review Finally, the New York Times argues that rather than granting summary judgment to the NSA on the basis of the Sherman declaration and the non-redacted portions of the two reports, the Court should conduct an in camera review of the full reports. FOIA provides courts with the option to conduct such review. 5 U.S.C. §
19

552(a)(4)(B). In 1974 Congress amended FOIA and, among other things, “specifically extended the language of FOIA’s provision for in camera inspection to encompass Exemption 1.” Halpern v. FBI, 181 F.3d 279, 291 (2d Cir. 1999).
In this Circuit, if a supporting affidavit or declaration submitted by an agency to explain withheld information is sufficiently specific, logical, and plausible, “the district court should be able to rule on the appropriateness of the redactions without conducting an in camera review of the redacted materials.” Id. at 287; see also Local 3, Int’l Brotherhood of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988) (“In camera review is considered the exception, not the rule.”). The Second Circuit’s admonition that, absent an affirmative reason to doubt the government’s affidavit, “the district court should restrain its discretion to order in camera review,” Halpern, 181 F.3d at 292, is consistent with the oft-stated policy that it is “unwise to undertake searching judicial review” of executive explanations of national security risks and harms. Wilner v. NSA, 592 F.3d 60, 76 (2d Cir. 2009) (quoting Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003)).
In this case, there is no evidence that contradicts Associate Director Sherman’s declaration. Nor does the declaration confine itself to boilerplate recitations of the statutory requirements; instead, it is quite detailed. There is also no evidence from which one could infer bad faith on the part of the Agency; to the contrary, the Agency has turned over documents which have led to published stories, have turned over supplemental documents following discussions with the
20

Times after the initial disclosures, and is not even alleged to have conducted an

inadequate search for records.

The Sherman declaration articulated a reasonably detailed explanation for

the redactions which was both logical and plausible. It did so in a way that served

its functional purpose by permitting the New York Times to meaningfully, and

fairly specifically, challenge the proffered explanations. As the Times put it in its

briefing, “the court’s task in cases involving national security is to consider both

whether the affidavits are sufficiently detailed and whether the explanation offered

for any given redaction is ‘logical and plausible.’” (ECF No. 20 at 11.) Under the

facts of this case, that task can be, and properly is, carried out without in camera

review of classified materials.

IV. CONCLUSION

For the reasons stated above, the National Security Agency’s motion for

summary judgment is GRANTED and the New York Times Company and Charlie

Savage’s motion for summary judgment is DENIED. The Clerk of Court is directed

to close the motions at docket numbers 15 and 19 and to terminate this matter.

SO ORDERED.

Dated:

New York, New York August 25, 2016

______________________________________ KATHERINE B. FORREST United States District Judge
21

 
 Case: 1:15-cv-2383 As of: 12/11/2016 01:54 PM EST 1 of 4
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:15−cv−02383−KBF

CLOSED,ECF

The New York Times Company et al v. National Security Agency Assigned to: Judge Katherine B. Forrest Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 03/31/2015 Date Terminated: 08/26/2016 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

The New York Times Company

represented by David Edward McCraw The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−4031 Fax: (212) 556−1009 Email: mccraw@nytimes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Alexander Kutner The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−5188 Fax: (212) 556−4634 Email: jeremy.kutner@nytimes.com TERMINATED: 03/02/2016 LEAD ATTORNEY

Tali Ravit Leinwand The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 212−556−7061 Fax: 212−556−1009 Email: tali.leinwand@nytimes.com ATTORNEY TO BE NOTICED

Plaintiff Charlie Savage

represented by David Edward McCraw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Alexander Kutner (See above for address) TERMINATED: 03/02/2016 LEAD ATTORNEY

Tali Ravit Leinwand (See above for address) ATTORNEY TO BE NOTICED

V. Defendant National Security Agency

represented by

Case: 1:15-cv-2383 As of: 12/11/2016 01:54 PM EST 2 of 4
Andrew Edward Krause United States Attorney's Office, SDNY 86 Chambers Street, 3rd Floor New York, NY 10007 (212) 637−2769 Fax: (212) 637−2786 Email: andrew.krause@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/31/2015 03/31/2015 03/31/2015 03/31/2015 03/31/2015 04/01/2015 04/02/2015
04/08/2015 04/15/2015
04/15/2015
05/04/2015 05/14/2015
05/15/2015 05/15/2015

# Docket Text
1 COMPLAINT against National Security Agency. (Filing Fee $ 350.00, Receipt Number 465401121330)Document filed by The New York Times Company, Charlie Savage.(moh) (Entered: 04/01/2015)
SUMMONS ISSUED as to National Security Agency. (moh) (Entered: 04/01/2015)
Magistrate Judge Michael H. Dolinger is so designated. (moh) (Entered: 04/01/2015)
Case Designated ECF. (moh) (Entered: 04/01/2015)
2 CIVIL COVER SHEET filed. (moh) (Entered: 04/01/2015)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charlie Savage, The New York Times Company.(Kutner, Jeremy) (Entered: 04/01/2015)
4 ORDER. The Court shall hold an initial conference on Wednesday, April 29, 2015 at 10:00 a.m. (Initial Conference set for 4/29/2015 at 10:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 4/2/2015) (rjm) (Entered: 04/02/2015)
5 CERTIFICATE OF SERVICE. National Security Agency served on 4/1/2015, answer due 4/22/2015. Service was made by Mail. Document filed by The New York Times Company; Charlie Savage. (Kutner, Jeremy) (Entered: 04/08/2015)
6 LETTER MOTION to Adjourn Conference and to reset the corresponding deadline to submit a proposed scheduling order addressed to Judge Katherine B. Forrest from Andrew E. Krause dated April 15, 2015. Document filed by National Security Agency.(Krause, Andrew) (Entered: 04/15/2015)
7 ORDER granting 6 Letter Motion to Adjourn Conference and to reset the corresponding deadline to submit a proposed scheduling order. A letter setting out how the parties propose to proceed in this matter is certainly fine. The initial conference is adjourned to 5/15/15 at 3:30 pm. (Initial Conference set for 5/15/2015 at 03:30 PM before Judge Katherine B. Forrest). (Signed by Judge Katherine B. Forrest on 4/15/2015) (kko) (Entered: 04/15/2015)
8 ANSWER to 1 Complaint. Document filed by National Security Agency.(Krause, Andrew) (Entered: 05/04/2015)
9 ORDER: The initial conference scheduled for Friday, May 15, 2015 shall now take place at 11:00 a.m. Initial Conference set for 5/15/2015 at 11:00 AM before Judge Katherine B. Forrest. (Signed by Judge Katherine B. Forrest on 5/14/2015) (lmb) (Entered: 05/14/2015)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Initial Pretrial Conference held on 5/15/2015. (jp) (Entered: 05/15/2015)
10 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Andrew E. Krause dated 5/11/2015 re: The parties submit this joint scheduling proposal in lieu of the Court's standard Scheduling Order form. ENDORSEMENT: Schedule adopted as set forth herein., ( Cross Motions due by 4/1/2016., Motions due by 3/11/2016., Responses due by 4/22/2016., Replies due by 4/29/2016.) (Signed by Judge Katherine B. Forrest on 5/15/2015) (lmb) (Entered: 05/15/2015)

Case: 1:15-cv-2383 As of: 12/11/2016 01:54 PM EST 3 of 4

02/14/2016 02/29/2016 03/01/2016 03/02/2016 03/22/2016 03/22/2016 03/22/2016 04/05/2016 04/12/2016 04/12/2016 04/12/2016
04/25/2016
04/25/2016 05/13/2016 05/20/2016 05/25/2016

11 NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 02/14/2016)
12 LETTER MOTION for Extension of Time for briefing deadlines for the parties' contemplated cross motions for summary judgment addressed to Judge Katherine B. Forrest from Andrew E. Krause dated February 29, 2016. Document filed by National Security Agency.(Krause, Andrew) (Entered: 02/29/2016)
13 ORDER granting 12 Letter Motion for Extension of Time. So ordered. Cross Motions due by 4/12/2016. Motions due by 3/22/2016. Reply due by 5/10/2016. Responses due by 5/3/2016. (Signed by Judge Katherine B. Forrest on 3/1/2016) (lmb) (Entered: 03/01/2016)
14 MEMO ENDORSEMENT on re: 11 Notice (Other) filed by The New York Times Company, Charlie Savage. ENDORSEMENT: So ordered., Attorney Jeremy Alexander Kutner terminated. (Signed by Judge Katherine B. Forrest on 3/1/2016) (lmb) (Entered: 03/02/2016)
15 MOTION for Summary Judgment . Document filed by National Security Agency.(Krause, Andrew) (Entered: 03/22/2016)
16 MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment . . Document filed by National Security Agency. (Krause, Andrew) (Entered: 03/22/2016)
17 DECLARATION of David J. Sherman in Support re: 15 MOTION for Summary Judgment .. Document filed by National Security Agency. (Krause, Andrew) (Entered: 03/22/2016)
18 NOTICE OF APPEARANCE by Tali Ravit Leinwand on behalf of Charlie Savage, The New York Times Company. (Leinwand, Tali) (Entered: 04/05/2016)
19 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment. Document filed by Charlie Savage, The New York Times Company. Responses due by 5/3/2016(McCraw, David) (Entered: 04/12/2016)
20 MEMORANDUM OF LAW in Support re: 19 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment. . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 04/12/2016)
21 DECLARATION of David E. McCraw in Support re: 19 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment.. Document filed by Charlie Savage, The New York Times Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McCraw, David) (Entered: 04/12/2016)
22 LETTER MOTION for Extension of Time for the NSA to file its reply brief in further support of its motion for summary judgment/opposition to Plaintiffs cross−motion for summary judgment addressed to Judge Katherine B. Forrest from Andrew E. Krause dated April 25, 2016. Document filed by National Security Agency.(Krause, Andrew) (Entered: 04/25/2016)
23 ORDER granting 22 Letter Motion for Extension of Time. So ordered. Reply due by 5/20/2016. Responses to Brief due by 5/13/2016. (Signed by Judge Katherine B. Forrest on 4/25/2016) (lmb) Modified on 4/27/2016 (lmb). (Entered: 04/25/2016)
24 REPLY MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment . and in opposition to Plaintiffs' cross−motion for summary judgment. Document filed by National Security Agency. (Krause, Andrew) (Entered: 05/13/2016)
25 REPLY MEMORANDUM OF LAW in Support re: 19 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment. . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 05/20/2016)
26 LETTER MOTION for Leave to File sur−reply letter of no more than two pages addressed to Judge Katherine B. Forrest from Andrew E. Krause dated May 25,

Case: 1:15-cv-2383 As of: 12/11/2016 01:54 PM EST 4 of 4

05/25/2016 05/25/2016 08/25/2016
08/25/2016 08/26/2016

2016. Document filed by National Security Agency.(Krause, Andrew) (Entered: 05/25/2016)
27 ORDER granting 26 Letter Motion for Leave to File Document. Permission granted. Defendants may file a sur−reply of not more than two pages. (Signed by Judge Katherine B. Forrest on 5/25/2016) (lmb) (Entered: 05/25/2016)
28 SECOND REPLY MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment . . Document filed by National Security Agency. (Krause, Andrew) (Entered: 05/25/2016)
29 OPINION &ORDER re: 19 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment. filed by The New York Times Company, Charlie Savage, 15 MOTION for Summary Judgment . filed by National Security Agency. For the reasons stated above, the National Security Agency's motion for summary judgment is GRANTED and the New York Times Company and Charlie Savage's motion for summary judgment is DENIED. The Clerk of Court is directed to close the motions at docket numbers 15 and 19 and to terminate this matter. As further set forth in this Order) (Signed by Judge Katherine B. Forrest on 8/25/2016) (lmb) (Entered: 08/25/2016)
Transmission to Judgments and Orders Clerk. Transmitted re: 29 Memorandum &Opinion, to the Judgments and Orders Clerk. (lmb) (Entered: 08/25/2016)
30 CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion &Order dated August 25, 2016, the National Security Agency's motion for summary judgment is granted and the New York Times Company and Charlie Savage's motion for summary judgment is denied; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/26/2016) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 08/26/2016)