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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________

)

ELECTRONIC FRONTIER )

FOUNDATION, )

)

Plaintiff, )

)

v. ) Civil Action No. 14-760 (RMC)

)

DEPARTMENT OF JUSTICE, )

)

Defendant. )

_________________________________ )

OPINION

Plaintiff Electronic Frontier Foundation seeks the production of an opinion of the 

Foreign Intelligence Surveillance Court under the Freedom of Information Act. The document is 

exempt from disclosure under Exemptions 1 and 3 because the opinion is properly classified and 

because its disclosure is prohibited by statute. Summary judgment will be entered in favor of the 

Department of Justice.

I. FACTS

Electronic Frontier Foundation (EFF) is a non-profit corporation whose mission is 

to inform policymakers and the public about civil liberty issues related to technology and to 

defend such liberties. Compl. [Dkt. 1] ¶ 4. “In support of its mission, EFF uses the Freedom of

Information Act to obtain and disseminate information concerning the activities of federal 

agencies.” Id. EFF submitted four requests under the Freedom of Information Act (FOIA), 5 

U.S.C. § 552, to the National Security Division of the Department of Justice (DOJ):

(1) August 23, 2013 request seeking disclosure of two Foreign 

Intelligence Surveillance Court (FISC) opinions;
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(2) October 31, 2013 request seeking disclosure of two FISC 

opinions and associated documents;

(3) February 24, 2014 request seeking disclosure of any still secret 

Foreign Intelligence Court of Review (FISCR) decisions and any 

opinion and orders of the U.S. Supreme Court in any matter 

appealed from the FISCR; and 

(4) March 14, 2014 request seeking disclosure of three separate 

FISC opinions and related documents.

DOJ granted EFF’s request for expedited processing on April 10, 2014,

1 and EFF filed this suit 

on May 1, 2014. DOJ produced various documents, and EFF withdrew most of its requests. At 

this point, EFF challenges only the withholding of a single document––a specific FISC opinion.

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The opinion in question, referred to here as the Section 1809 Opinion, held that 50 

U.S.C. § 1809(a)(2) precluded the FISC from approving the Government’s proposed use of 

certain data acquired by the National Security Agency (NSA) without statutory authority through 

“Upstream” collection.

3

 EFF is aware of the holding of the Section 1809 Opinion because it was 

referenced in an October 3, 2011 FISC opinion4 that was released to EFF in the course of a

 1 FOIA requires agencies to provide expedited processing of requests for records (1) where the 

requester has demonstrated a compelling need or (2) where the agency determines expedition is 

appropriate. 5 U.S.C. § 552(a)(6)(E). DOJ’s regulations provide for expedited processing 

where, for example, there is an urgency to inform the public about alleged government activity,

there is loss of a substantial due process right, or there is widespread and exceptional media 

interest regarding a question of government integrity. 28 C.F.R. § 16.5(e)(1).

2 Because EFF has conceded the withholding of all other documents, its cross motion for 

summary judgment is a partial motion.

3 “Upstream” collection refers to the acquisition of Internet communications as they transit the 

“internet backbone,” i.e., principal data routes via internet cables and switches of U.S. internet 

service providers. See [Caption Redacted], 2012 WL 9189263, *1 (FISC Aug. 24, 2012); see 

also https://en.wikipedia.org/wiki/Upstream_collection (last visited Oct. 19, 2015); 

https://en.wikipedia.org/wiki/Internet_backbone (last visited Oct. 19, 2015).

4 The October 3, 2011 FISC opinion, authored by Judge John Bates and released in August 2013,

stated:
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different FOIA lawsuit–– Electronic Frontier Foundation v. DOJ, 57 F. Supp. 3d 54 (D.D.C. 

2014). In that FOIA suit, Judge Amy Berman Jackson held that DOJ properly withheld the 

citation to the Section 1809 Opinion because the information was classified and exempt from 

disclosure under FOIA Exemption 1. Id. at 61.

DOJ seeks summary judgment on the ground that the Section 1809 Opinion is 

subject to withholding under Exemptions 1 and 3. See Mot. for Summ. J. [Dkt. 15] (MSJ); DOJ 

Reply [Dkt. 18]. EFF filed a cross motion for partial summary judgment. See Cross Mot. for 

Summ. J. [Dkt. 17] (XMSJ); EFF Reply [Dkt. 20].

II. LEGAL STANDARD

FOIA cases are typically and appropriately decided on motions for summary 

judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Moore v. Bush, 601 F. Supp. 2d 

6, 12 (D.D.C. 2009). Federal Rule of Civil Procedure 56 provides that summary judgment must 

be granted when “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); Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted 

 

The government’s revelations regarding the scope of NSA’s 

upstream collection implicate 50 U.S.C. § 1809(a), which makes it 

a crime (1) to “engage[ ] in electronic surveillance under color of 

law except as authorized” by statute or (2) to “disclose[ ] or use [ ] 

information obtained under color of law by electronic surveillance, 

knowing or having reason to know that the information was obtained 

through electronic surveillance not authorized” by statute. See

[redacted] (concluding that Section 1809(a)(2) precluded the Court 

from approving the government's proposed use of, among other 

things, certain data acquired by NSA without statutory authority 

through its “upstream collection”). The Court will address Section 

1809(a) and related issues in a separate order.

[Caption Redacted], 2011 WL 10945618, at *6 n.15 (FISC Oct. 3, 2011) (emphasis added).
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against a party who “after adequate time for discovery and upon motion . . . fails to make a 

showing sufficient to establish the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable 

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. 

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere 

existence of a scintilla of evidence” in support of its position. Id. at 252.

In a FOIA case, the burden is on the agency to sustain its action and the district 

court must decide de novo whether an agency properly withheld information under a claimed 

exemption. 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.

Cir. 1981); Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). 

“The underlying facts are viewed in the light most favorable to the [FOIA] requester,” Weisberg 

v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983), and the exemptions are narrowly 

construed, FBI v. Abramson, 456 U.S. 615, 630 (1982). An agency must demonstrate that “each 

document that falls within the class requested either has been produced, is unidentifiable, or is 

wholly [or partially] exempt” from FOIA’s requirements. Goland v. CIA, 607 F.2d 339, 352 

(D.C. Cir. 1978) (internal quotation marks and citation omitted).

A court may award summary judgment solely on the basis of information 

provided by the department or agency in affidavits describing “the documents and the 

justifications for nondisclosure with reasonably specific detail, demonstrate that the information 

withheld logically falls within the claimed exemption, and are not controverted by either contrary 

evidence in the record nor by evidence of agency bad faith.” Military Audit Project, 656 F.2d at

738; see also Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973). Affidavits submitted by 
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the agency to demonstrate the adequacy of its response are presumed to be in good faith, Ground 

Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), “which cannot be rebutted by 

purely speculative claims about the existence and discoverability of other documents,” SafeCard 

Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). “Ultimately, an agency’s justification for 

invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of 

State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 

2007)).

III. ANALYSIS

A. Collateral Estoppel

DOJ contends that EFF should be collaterally estopped from seeking the release 

of the Section 1809 Opinion because EFF already litigated, and lost, prior FOIA requests for 

(1) docket information regarding the Section 1809 Opinion, see Electronic Frontier Foundation 

v. DOJ, 57 F. Supp. 3d at 61, and (2) the identity of telecommunications service providers who 

participated in NSA’s call records collection program, see Electronic Frontier Foundation v. 

DOJ, Case No. 4:11-cv-5221-YGR, 2014 WL 3945646, at *5-7 (N.D. Cal. Aug. 11, 2014). 

Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of fact or law 

that was actually litigated and necessarily decided is conclusive in a subsequent action between 

the same parties or their privies. Allen v. McCurry, 449 U.S. 90, 94 (1980); Yamaha Corp. v. 

United States, 961 F.2d 245, 254 (D.C. Cir. 1993); Johnson v. Duncan, 746 F. Supp. 2d 163, 168 

(D.D.C. 2010). In this case, EFF seeks the release of the Section 1809 Opinion itself. Because 
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the issue of DOJ’s withholding the Section 1809 Opinion has not been actually litigated and 

necessarily decided, collateral estoppel does not apply.5

B. Exemption 1

Under Exemption 1, FOIA does not require the production of records that are: 

“(A) specifically authorized under criteria established by an Executive order to be kept secret in 

the interest of national defense or foreign policy and (B) are in fact properly classified pursuant 

to such Executive order.” 5 U.S.C. § 552(b)(1). DOJ relies upon Executive Order 13526, 75 

Fed. Reg. 707 (Dec. 29, 2009), which governs the classification and protection of national 

security information, to withhold the Section 1809 Opinion. Information can be properly 

classified under E.O. 13526 if four requirements are met: (1) an original classification authority 

has classified the information; (2) the United States Government owns, produces, or controls the 

information; (3) the information pertains to one or more of eight protected categories listed in

Section 1.4 of the Executive Order, which include intelligence methods;

6 and (4) the original 

 5 EFF has expressly agreed in this litigation not to seek docket information, the date of the 

Section 1809 Opinion, or the names or descriptions of surveillance targets. See MSJ at 6; EFF 

Reply at 2; Sherman Decl. [Dkt. 15-4] ¶ 9 n.1.

6 Section 1.4 of Executive Order 13526 describes the classification categories as follows:

Information shall not be considered for classification unless its 

unauthorized disclosure could reasonably be expected to cause 

identifiable or describable damage to the national security in 

accordance with section 1.2 of this order, and it pertains to one or 

more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence 

sources or methods, or cryptology;
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classification authority determines that the unauthorized disclosure of the information reasonably 

could be expected to result in a specified level of damage to the national security, and the 

original classification authority is able to identify or describe the damage. E.O. 13526 § 1.1(a).

David Sherman, Associate Director for Policy and Records at the National Security Agency, 

submitted declarations in support of DOJ’s withholding of the Section 1809 Opinion. See

Sherman Decl. [Dkt. 15-4]; Sherman Supp. Decl. [Dkt. 18-1]. Through these declarations, DOJ 

made an affirmative showing that (1) the Section 1809 Opinion was classified by an original 

classification authority, (2) the Opinion is owned, produced, or controlled by the U.S.

Government, (3) the information pertains to three of the protected categories listed in Executive 

Order 13526––intelligence methods, foreign activities, and systems related to national security; 

and (4) disclosure could reasonably be expected to result in damage to national security. See

Sherman Decl. ¶¶ 2, 15, 46-47, 52. Mr. Sherman explained that DOJ withheld the Section 1809 

 

(d) foreign relations or foreign activities of the United States, 

including confidential sources;

(e) scientific, technological, or economic matters relating to the 

national security;

(f) United States Government programs for safeguarding nuclear 

materials or facilities;

(g) vulnerabilities or capabilities of systems, installations, 

infrastructures, projects, plans, or protection services relating to the 

national security; 

or (h) the development, production, or use of weapons of mass 

destruction.

E.O. 13526 § 1.4.
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Opinion in full under FOIA Exemption 1 “because the release of any portion of that document 

would tend to reveal information that is currently and properly classified at the Top Secret level, 

specifically, an intelligence method.” Sherman Supp. Decl. ¶ 8. With regard to the fact that 

disclosure could be expected to result in damage to national security, Mr. Sherman indicated 

that:

47. Specifically, the release of the redacted information would 

disclose sensitive operational details associated with NSA’s 

“Upstream” collection capability. While certain information 

regarding NSA’s “Upstream” collection capability has been 

declassified and publicly disclosed, certain other information 

regarding the capability remains currently and properly classified. 

The redacted information would reveal specific details regarding the 

application and implementation of the “Upstream” collection 

capability that have not been publicly disclosed. Revealing the 

specific means and methodology by which certain types of SIGINT 

collections are accomplished could allow adversaries to develop 

countermeasures to frustrate NSA’s collection of information 

crucial to national security. Disclosure of this information could 

reasonably be expected to cause exceptionally grave damage to the 

national security. I have reviewed this information and determined 

that it is currently and properly classified as Top Secret and falls 

within Sections 1.4(c), 1.4(d), and 1.4(g) of E.O. 13526.

. . . 

52. With respect to the FISC opinion withheld in full, it is my 

judgment that any information in the [Section 1809 Opinion] is 

classified in the context of this case because it can reasonably be 

expected to reveal classified national security information 

concerning particular intelligence methods, given the nature of the 

document and the information that has already been released. . . . 

In these circumstances, the disclosure of even seemingly mundane 

portions of this FISC opinion would reveal particular instances in 

which the “Upstream” collection program was used and could 

reasonably be expected to encourage sophisticated adversaries to 

adopt countermeasures that may deprive the United States of critical 

intelligence.

Sherman Decl. ¶¶ 47, 52.
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Through the Sherman Declarations,7 DOJ has sustained its burden of showing that 

the Section 1809 Opinion is classified and that it properly withheld the document under FOIA 

Exemption 1.8 See Larson, 565 F.3d at 865 (“If an agency’s statements supporting exemption 

contain reasonable specificity of detail as to demonstrate that the withheld information logically 

falls within the claimed exemption and evidence in the record does not suggest otherwise, . . . the 

court should not conduct a more detailed inquiry to test the agency’s judgment and expertise or 

to evaluate whether the court agrees with the agency’s opinions.”).

EFF argues that while the Section 1809 Opinion was classified, it has been 

officially disclosed and thus it should be released. See Fitzgibbon v. CIA, 911 F.2d 755, 765 

(D.C. Cir. 1990) (official disclosure of classified information overcomes an otherwise valid 

exemption claim). EFF insists that DOJ cannot continue to withhold the Section 1809 Opinion 

in full because “it has already officially acknowledged and described the content of the 

Opinion.” See Opp’n [Dkt. 16] at 8. The alleged official acknowledgement is the 2011 FISC 

opinion’s statement of the Section 1809 Opinion’s holding, i.e., that “Section 1809(a)(2) 

precluded the Court from approving the government's proposed use of, among other things, 

 7 The Court also reviewed the Classified Sherman Declaration and Classified Supplemental 

Sherman Declaration. See Notice [Dkt. 15-6] (DOJ lodged ex parte submission of Classified 

Sherman Declaration with Classified Information Security Officer); Notice [Dkt. 18-1] (DOJ 

lodged ex parte submission of Classified Supplemental Sherman Declaration with Classified 

Information Security Officer).

8 FOIA Exemption 3, 5 U.S.C. § 552(b)(3) protects from disclosure information that is exempted 

by another statute. Exemption 3 applies here as well. See Sherman Decl. ¶ 48 (the Section 1809 

Opinion includes technical information about how NSA accomplishes its SIGINT mission, and 

thus it is protected from disclosure under Exemption 3 and under the National Security Act, 50 

U.S.C. §§ 3605, 3024(i)(1), exempting from disclosure NSA functions, activities, intelligence 

sources, and methods); Sherman Supp. Decl. ¶ 13 (the Section 1809 Opinion is also protected 

from release under 18 U.S.C. § 798, which exempts communications intelligence activities and 

information obtained through communications intelligence).
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certain data acquired by NSA without statutory authority through its ‘Upstream collection.’”

[Caption Redacted], 2011 WL 10945618, at *6 n.15 (FISC Oct. 3, 2011).

Classified information may be disclosed over Government objection if the 

information has been “officially acknowledged,” that is, if (1) the same (2) specific information 

(3) already has been “made public through an official and documented disclosure.” Fitzgibbon, 

911 F.2d at 765 (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)). “These 

criteria are important because they acknowledge the fact that in the arena of intelligence and 

foreign relations there can be a critical difference between official and unofficial disclosures.” 

Id. The D.C. Circuit has emphasized that “‘[p]rior disclosure of similar information does not 

suffice; instead, the specific information sought by the plaintiff must already be in the public 

domain by official disclosure. This insistence on exactitude recognizes the Government’s vital 

interest in information relating to national security and foreign affairs.’” Am. Civil Liberties 

Union v. DoD, 628 F.3d 612, 621 (2011) (quoting Wolf, 473 F.3d at 378). Because the specific 

content of the Section 1809 Opinion has not been officially and publicly disclosed, the Opinion 

may be properly withheld under Exemption 1.

C. Segregability

Even if an agency properly withholds responsive records under a FOIA 

exemption, it nevertheless must disclose any non-exempt information that is “reasonably 

segregable.” 5 U.S.C. § 552(b). “It has long been a rule in this Circuit that non-exempt portions 

of a document must be disclosed unless they are inextricably intertwined with exempt portions.”

Mead, 566 F.2d at 260; see also Trans-Pacific Policing Agreement v. United States Customs 

Serv., 177 F.3d 1022 (D.C. Cir. 1999). A district court need not “order an agency to commit 

significant time and resources to the separation of disjointed words, phrases, or even sentences 

which taken separately or together have minimal or no information content.” Mead, 566 F.2d at 
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261 n. 55. An agency cannot rely on mere conclusory statements that non-exempt material in a 

document is not reasonably segregable, but instead it must provide a reasonably detailed 

justification, except where “such a detailed justification . . . would itself compromise the secret 

nature of potentially exempt information.” Id. at 261. Nonetheless, “[a]gencies are entitled to a 

presumption that they complied with the obligation to disclose reasonably segregable material.” 

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). A district court has “an 

affirmative obligation to consider segregability sua sponte.” Trans-Pacific Policing Agreement, 

177 F.3d at 193.

EFF asserts that the legal analysis in the Section 1809 Opinion should be released 

because doing so would not implicate any legitimately withheld information. EFF surmises that 

the Section 1809 Opinion contains the following information that is not classified: FISC’s legal 

analysis of Section 1809(a)(2)’s preclusive effect, the statutory authority governing NSA 

surveillance, and NSA’s violation of that authority. See Opp’n at 9; see also id. at 10 (assuming 

that the Opinion contains “an analysis of the NSA’s statutory authority and that authority’s 

interaction with 50 U.S.C. § 1809”). EFF further hypothesizes that the Section 1809 Opinion 

contains information that was not properly classified.

EFF has not offered any support for these claims. The Court presumes that the 

Sherman affidavits were filed in good faith, see Ground Saucer Watch, 692 F.2d at 771, and this 

presumption is not rebutted by purely speculative claims, see SafeCard, 926 F.2d at 1200.

Further, EFF’s argument is substantially undermined by the reality that legal 

analysis is meaningless without facts. Legal analysis necessarily includes facts, and in this case 

those facts are classified. As Mr. Sherman indicated, the withheld information would reveal 

specific details regarding the application and implementation of the “Upstream” collection
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capability and would reveal the specific means and methodology by which certain types of 

SIGINT collections are accomplished. Sherman Decl. ¶¶ 47, 52. Mr. Sherman stressed that 

“[i]n these circumstances, the disclosure of even seemingly mundane portions of this FISC 

opinion would reveal particular instances in which the ‘Upstream’ collection program was used 

and could reasonably be expected to encourage sophisticated adversaries to adopt 

countermeasures that may deprive the United States of critical intelligence.” Id. ¶ 52. See 

Larson, 565 F.3d at 864 (“Minor details of intelligence information may reveal more information 

than their apparent insignificance suggests because much like a piece of jigsaw puzzle, each 

detail may aid in piecing together other bits of information even when the individual piece is not 

of obvious importance itself.”) (internal quotations and citations omitted).

Relying on the Sherman Declarations, the Court finds that disclosure of any part 

of the Section 1809 Opinion could reasonably be expected to cause grave damage to national 

security. The document has been properly withheld in its entirety under Exemption 1.

IV. CONCLUSION

For the reasons set forth above, the motion for summary judgment filed by the 

Department of Justice [Dkt. 15] will be granted, and the cross motion for partial summary 

judgment filed by the Electronic Frontier Foundation [Dkt. 17] will be denied. Judgment will be 

entered in favor of the Department of Justice. A memorializing Order accompanies this Opinion. 

Date: October 30, 2015 /s/ 

ROSEMARY M. COLLYER

United States District Judge