On January 12, 2015, the New York Times (“the Times”) submitted a Freedom of Information Act (“FOIA”) request to the National Security Agency (“NSA”) pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The Times sought copies of all NSA Inspector General Reports related to three topics: the NSA’s content collection activities under the Foreign Intelligence Surveillance Act (“FISA”) amendments section 702 (and the predecessor law, the Protect America Act); bulk phone records collected under Section 215 of the Patriot Act; and bulk Internet metadata collected under the FISA pen register/trap and trace provision (the ‘FISA PR/TT’ program).

The NSA informed the Times that it would deny the request for expedited processing, but it did not address any other aspect of the request. The NSA did not communicate any further within the 20 days as required by FOIA. Therefore, on March 31, 2015, the Times filed a complaint requesting the documents sought in the original FOIA request.

On May 15, 2015, Judge Katherine B. Forrest signed a jointly agreed to 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. The parties agreed at the time that if they disputed the extent of the released documents, then they would resolve the dispute through summary judgment motions rather than proceeding to trial. The NSA engaged in an extensive declassification process and released hundreds of pages of material, many of which contained redactions. 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.

The remaining conflict between the Times and the NSA concerned three redactions in two NSA Inspector General Reports. The Times challenged a redaction in the “Report on the Special Study of NSA’s Purge of Pen Register and Trap and Trace Bulk Metadata.” The report was said to summarize 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.” The Times also challenged two redactions in the “Report on the Special Study: Assessment of Management Controls Over FAA §702.” The report stated that it summarized 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.”

On March 22, 2016, the NSA moved for summary judgment and submitted a declaration in support of the motion from David J. Sherman, the Agency’s Associated Director for Policy and Records and the official responsible for processing FOIA requests for NSA records. After the Times submitted its own motion for summary judgment on April 21, 2016, the court found the NSA’s and Sherman’s reasonings for the redactions persuasive. The Times argued that the NSA had not sufficiently justified the redactions under FOIA; however, the court stated that the reasonings set forth by the Defendants were “both logical and plausible.”

On August 25, 2016, Judge Katherine B. Forrest signed an order granting summary judgment in favor of the NSA and denying summary judgment in favor of the Times. 205 F.Supp.3d 374.

The case is now closed.

Mary Kate Sickel - 01/14/2018


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