In June 2009, plaintiff Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act request to defendant National Security Agency (NSA) for records related to National Security Presidential Directive 54 (NSPD 54), aka Homeland Security Presidential Directive 23 that was ...
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In June 2009, plaintiff Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act request to defendant National Security Agency (NSA) for records related to National Security Presidential Directive 54 (NSPD 54), aka Homeland Security Presidential Directive 23 that was issued by President George W. Bush in January 2009, and to the Comprehensive National Cybersecurity Initiative (CNCI). NSA released several redacted documents. However, it informed EPIC that it had no records responsive to the Cybersecurity Initiative, and records responsive to the NSPD 54 request were withheld under FOIA exemptions for inter-agency memoranda, classified information, and presidential communications privilege.
EPIC filed an administrative appeal, and brought suit in United States District Court for the District of Columbia in February 2009 against NSA and the National Security Council (NSC) under the Freedom of Information Act, 5 U.S.C. § 552, and the Administrative Procedure Act, 5 U.S.C. § 706, seeking production of the records and a Vaughn index of withheld records and applicable exemptions.
The NSC was immediately dismissed as a defendant because it is not an "agency" within the meaning of FOIA.
Defendant NSA and plaintiff EPIC cross-moved for summary judgment in late 2011. Nearly two years later, in October 2013, the district court ruled that NSPD 54 is not an agency record at all because it originated with the President or the NSC, and contained clear limits on its use and further dissemination. Electronic Privacy Information Center v. Nat'l Security Agency, -- F. Supp. 2d --, 2013 WL 5701645, (D.D.C. Oct. 21, 2013).Thus, NSPD 54 was "the type of document that is generally not ordered disclosed under the FOIA." Id. at *9. However, the district court ruled that several portions of EPIC's FOIA request survived because the requested records originated with the NSA. Defendant NSA was ordered to produce those responsive records or to submit a Vaughn index detailing the records and applicable exemptions.Elizabeth Homan - 11/11/2013