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4 May 1998
Source: Hardcopy from William H. Payne

See related documents: http://jya.com/whpfiles.htm

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
98 APR 30 AM 11:45
Robert M. Marsh
CLERK-SANTA FE

ENTERED ON DOCKET
4/30/98

MEMORANDUM OPINION AND ORDER

THESE MATTERS come before the Court sua sponte; on pro se Plaintiffs' Motion for Summary Judgment, filed June 4, 1997 [Doc. No. 11]; on Defendant's Motion to Dismiss Plaintiff Arthur R. Morales, filed September 23, 1997 [Doc. No. 21]; on Defendant's Motion for Partial Dismissal and Motion for Summary Judgment, filed October 3, 1997 [Doc. No. 23]; and on Plaintiffs' Motion for Summary Judgment Based on Evidence from Admissions, filed December 22, 1997 [Doc. No. 34]. Plaintiffs' claims are for injunctive or other appropriate relief, requiring the disclosure and release of information under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiffs contend this information is being improperly withheld from them by Defendant and his agency, the National Security Agency (NSA or Agency). Plaintiffs

[1]

filed their Complaint on February 28, 1997, in this Court, alleging federal jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. Defendant argues that Plaintiff Payne failed to exhaust his administrative remedies with regard to his first request; that some of the information requested by Plaintiff Payne in his second request is exempt under Exemptions 1 and 3 of the FOIA; and that Plaintiff Morales, as a concerned citizen who has not filed a FOIA request, has no standing in this lawsuit.

For the reasons below, the Court will: (1) deem Plaintiffs' suit to be against the NSA and not against Lt. Gen. Kenneth A. Minihan, USAF Director, NSA, in his personal or official capacity; (2) deny without prejudice Plaintiff Payne's Motion for Summary Judgment; (3) grant the Defendant's Motion to Dismiss Plaintiff Morales; (4) deny Defendant's Motion for Partial Dismissal, and (5) stay Defendant's Motion for Summary Judgment; and (6) deny as moot Plaintiff Payne's motion for Summary Judgment Based on Evidence from Admissions.

I. FACTS

Plaintiff Payne is a scientist, specializing in cryptography and computer programming. He formerly was employed by Sandia National Laboratories. Sandia National Laboratories performs cryptography work for the NSA. Plaintiff Morales is currently employed at Sandia National Laboratories as an electrical engineer. Plaintiffs contend that the "NSA has primary responsibility for government cryptography and electronic espionage." Comp. at ¶ 4. Plaintiffs further contend that the NSA has

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engaged in classification abuse, that the NSA lacks the technical ability and expertise to control cryptography, that the NSA's cryptology work is deficient, that the NSA attempts to illegitimately control academic research relating to pseudorandom numbers and machine combinatorics, and that the NSA was involved in a spy sting involving tactical battlefield messages given to Iraq during the Iran-Iraq War and "spiked crypto units." Plaintiff Payne also contends that the United States Department of Energy has wasted millions of dollars of the taxpayers money on deficient NSA algorithm work over a twenty-year period.

While employed by Sandia National Laboratories, Plaintiff Payne attempted through a 1989 report (Appendix T or SAND report) to alert the NSA of generic deficiencies in its crypto algorithms, specifically Benincasa's Algorithm, which is used in treaty data verification programs. Wishing to bring the NSA's cryptology ineptitude to the attention of the general public and the Clinton Administration and Congress, on June 10, 1996, Plaintiff Payne made two separate FOIA and/or Privacy Act (PA), 5 U.S.C. § 552a, requests to the NSA.¹

In his first FOIA request, Plaintiff Payne, under 522b of the FOIA, requested "access [to] all technical documentation on" (1) "Benincasa's original NSS/USA

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1 In his two requests, Plaintiff Payne stated that he was requesting this information for a book he was writing concerning the government's "lack of ability and expertise, mismanagement, fraud, waste, abuse, corruption, violations of law, classification abuse, clearance abuse, abuse of national security interests, and cover-up of wrongdoing." Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A, Attachments 1, 2.

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algorithm"; (2) "Benincasa's revision of [his original NSS/USA algorithm]"; (3) "[t]he Unkenholz-Judy GRANITE algorithm"; (4) "[Brian Snow's] MSCU algorithm"; (5) "the clipper algorithm"; and (6) "the STU III algorithms." Def. Mot. Partial Dism and Mot. Summ. Judg., Exh. A., Attachment 1. In his second FOIA/PA request, Plaintiff Payne, under both the FOIA, 5 U.S.C. § 552, and the PA, 5 U.S.C. § 552a, requested copies of (1) "all documents containing the name William H. Payne, Bill Payne, etc.[,] between the dates of January 1, 1970 [and] June 10, 1996"; (2) under the FOIA, "NSA's required published classification guidelines"; and (3) "all NSA intercepted Iranian messages and translations between June 1, 1980 and June 10, 1996"; and (4) "all NSA intercepted Libyan messages and translations between January 1980 and June 10, 1996." Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A., Attachment 2. Only the Iranian and Libyan messages and translation items of Request 2 are mentioned in Plaintiff Payne's Complaint. Consequently, Plaintiff Payne's PA request and his FOIA request for the NSA published classification guidelines are not before the Court.

In each of his two request letters, Plaintiff Payne asked that if any of the requested materials were classified, that the NSA perform the required declassification review. Plaintiff Payne also requested that if there were any search or copy fees for the requested materials, that he be notified before being billed. Plaintiff Payne further stated that his information request fell into the "primarily benefitting the public" category and, thus, statutorily, the NSA should waive or reduce any fees. Plaintiff

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Payne requested that if any part of his request was denied, that the statutory exemption(s) for such denial(s) be specifically cited, and that he be informed of the administrative appeal procedures available to him. Finally, Plaintiff Payne requested that his request be expedited and that he expected a response within ten working days, as then required under both the FOIA and the PA.² In his second request letter, Plaintiff Payne additionally requested that the records be provided to him within thirty days or he would consider his request denied.

Plaintiff Payne's two FOIA/PA requests sent on June 10, 1996, were not addressed to the statutorily required person at the NSA, see 32 C.F.R. Part 299, but rather addressed to NSA personnel Plaintiff Payne knew or with whom he had had previous contact through his employment. Plaintiff Payne's first FOIA request was addressed to NSA crypto-mathematician Brian Snow and was received by the NSA's FOIA/PA unit on June 20, 1996. A notification of receipt to Plaintiff Payne was mailed that same day. Plaintiff Payne never received the original notification of

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² The FOIA recently has been amended, effective 180 days or one year (depending on the amendment) from the date of enactment on October 2, 1996. See Electronic Freedom of Information Amendments of 1996, 5 U.S.C.A. § 552 (West Cum. Ann. Pocket Part 1998), Pub. L. No. 104-231, 110 Stat. 3048. Under the Electronic Freedom of Information Amendments of 1996, agencies now have twenty business days from the receipt of the request to determine "whether to comply with such request." 5 U.S.C. § 552(a)(6)(A)(i) (as amended). As before, the agency must then immediately notify the requester "of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination." Id.

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receipt. A copy of the notification of receipt was sent to Plaintiff Payne as an enclosure to a NSA letter dated December 31, 1996.

Plaintiff Payne's second FOIA/PA request was addressed to NSA administrator Bruce Bottomly and was received by the NSA's FOIA/PA unit on July 18, 1996. A notification of receipt was mailed to Plaintiff Payne on that same date. Again, Plaintiff Payne never received the original notification of receipt, although a copy was sent to him on December 31, 1996.

On July 15, 1996, the NSA's FOIA/PA unit sent a request for information to various NSA offices on a cost estimate for a search for records responsive to Plaintiff Payne's first request. By August 7, 1996, all responses to the estimates of search costs for Plaintiff Payne's first request had been received by the FOIA case officer. The case was then placed in the queue for a response to Plaintiff Payne with the search cost estimate.

Lieutenant General Kenneth A. Minihan, USAF, stating that the green return receipt requested postcards attached to his two request letters had not been returned and that he had received no response from the NSA regarding his two requests. Plaintiff Payne further explained that the NSA never requested an extension of time to respond as required by law. Because of the NSA's lack of response, Plaintiff Payne informed

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Director Minihan that he was appealing to him, as head of the NSA, the implied denials of his two FOIA/PA requests.

On December 31, 1996, the NSA Deputy Director and FOIA/PA Appeals Authority, William P. Cromwell, informed Plaintiff Payne of the NSA's method of processing FOIA requests and stated that the Office of Policy was searching for responsive documents to his PA request (item 1 of Request 2). Plaintiff Payne was further informed that the FOIA portions of his requests (all of Request 1, and items 3 and 4 of Request 2) would require an Agency-wide search, that the Office of Policy was compiling the cost estimates from the various offices involved, and that the Office of Policy would forward a cost estimate for this search. (The cost estimates for Request 1, however, had been compiled by the NSA FOIA case officer approximately four months earlier--by August 7, 1996. See Def. Resp. to Pls. Mot. Summ. Judg., Exh. A, at 2 (Declaration of Rona L. Lerner).) The letter then explained that "[b]ecause the processing of your request has not progressed to a point where there have been any initial, substantive Agency determinations on the release or withholding of responsive records, I can offer you no administrative remedy." Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A., Attachment 4. The letter also informed

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Plaintiff Payne of his right to treat the letter as a denial of his appeal and of his right to judicial review under 5 U.S.C. § 552(a)(4)(B).³

On January 6, 1997, five months after the search fee cost estimate for Request 1 had been placed in the response queue, the NSA through James P. Cavanaugh, NSA Deputy Director of Policy, informed Plaintiff Payne that in regard to his first request, an Agency-wide search would be required and that his request for a fee waiver had been denied. In its letter, the NSA outlined the four factors 4 it used to evaluate fee waiver requests, and informed Plaintiff Payne that it was denying his fee waiver request

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³ Cromwell also explained to Plaintiff that the reason Plaintiff did not receive the green return receipt postcards was because his requests had been forwarded to the NSA's FOIA office. One letter was forwarded by fax, and thus there was no return receipt postcard the FOIA office could return to Plaintiff. As for the green return receipt postcard for the second letter, it was inadvertently left on the envelope in the case file. Cromwell enclosed in his letter the second green return receipt postcard. Cromwell further explained to Plaintiff that the NSA had sent postcards indicating its receipt of his requests. Cromwell enclosed copies of these postcards in his letter, as well. See Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A, Attachment 4.

⁴ The four fee waiver decision factors considered by the NSA were:

(1) whether the subject of the requested records concerns the operations or activities of the government; (2) whether the disclosure is likely to contribute significantly to an understanding of specific government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of the public at large, i.e., the general public must benefit from disclosure; and (4) whether [the requester] has a commercial interest the magnitude of which is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily" in [the requester's] interest. Def. Mot.

Partial Dism. and Mot. Summ. Judg., Exh. A., Attachment 5.

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on the basis of the third factor (whether disclosure of the requested information will contribute to the understanding of the public at large). The NSA stated that Plaintiff Payne had "not demonstrated either an expertise in the subject area or the ability and intent to disseminate information." Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A, Attachment 5. The NSA also informed Plaintiff Payne that the total cost of the search would be approximately $1,267.50, and that to commence the search, Plaintiff Payne would have to make an advance payment of $1,267.50 within thirty days. The letter further informed Plaintiff Payne that if he disagreed with the denial of the fee waiver he could appeal the decision within sixty days. Plaintiff Payne neither tendered a payment nor appealed the fee waiver decision. As a result, the processing of Plaintiff Payne's first request was terminated and the first request was administratively closed as of January 6, 1996.

On February 18, 1997, Plaintiffs brought this action.

On September 18, 1997, the NSA informed Plaintiff Payne that his request for information concerning the existence or nonexistence of Iranian or Libya messages and translations in his second request was denied on the basis of FOIA Exemptions 1 and 3.

II. PRELIMINARY ISSUES

A. Recusal of Court

Although Plaintiffs have filed no motion for recusal with a supporting affidavit, see 28 U.S.C. 144, Plaintiffs have requested in many of their pleadings that the Court

9

recuse or disqualify itself and allow another judge to decide the pending motions because this Court and the Magistrate Judge have acted illegally in preventing Plaintiffs from undertaking discovery without prior court approval. Plaintiffs contend that Federal Civil Procedure Rule 36 explicitly provides that discovery is allowed without leave of the court.⁵ The Court is unsure where Plaintiffs found the language they quote, but it is incorrect. As currently written, Rule 36 does not explicitly provide that discovery is allowed without leave of court.⁶ Furthermore, under both the Federal

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⁵ Plaintiff quotes Rule 36 as providing:

Request for admission (a) A party may serve upon any other party a written request for the admission, for the purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth the request that relate to the statements or opinions of fact or of the application of law to fact including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or otherwise furnished or made available for inspection and copying. The request may WITHOUT LEAVE OF THE COURT, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party . . . .

Pls. Mot. Summ. Judg. Based on Evid. from Admiss. at 2.

⁶ Federal Rule of Procedure 36 provides, in relevant part:

(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for

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Rules of Civil Procedure, the Local Civil Rules of the United States District Court for the District of New Mexico, and Tenth Circuit caselaw, a court is allowed discretion to set the rules for discovery. See, e.g Fed. R. Civ. Pro. 26(b),(f); U.S. Dist. Ct., N.M. Dist., Local Civil Rule 26.5(a) (effective Jan. 1, 1996) ("The Court, sua sponte or on motion by a party, may chan~e the discovery limitations imposed by federal or local rule and may fashion discovery to meet special circumstances."); Cole v. Ruidoso Municipal Schools, 43 F.3d 1373, 1387 (10th Cir. 1994) (The "trial court's determinations on allowing or denying discovery are discretionary . . . ."); Graham v. Gray, 827 F.2d 679, 681 (10th Cir. 1987) (A "trial court's decision to allow or deny discovery is discretionary . . . ."); United States v. West, 672 F.2d 796, 799 (10th Cir. 1982) ("Generally, the trial court has wide discretion concerning discovery matters."). The Court has not acted illegally. The Court has followed the Federal Rules of Civil Procedure, the local rules of civil procedure, and the law as established by the Tenth Circuit. The Court has acted impartially in all matters concerning this lawsuit. Consequently, the Court will not recuse or disqualify itself. In addition, the Court will proceed with deciding the pending motions and not stay the proceedings to await any response by the United States Supreme Court to Plaintiffs' October 24, 1997 letter to

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inspection and copying. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d).

Fed. R. Civ. Proc. 36.

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that Court demanding that this Court and Magistrate Judge Svet be disqualified and replaced with new judges to hear this case de novo.

B. Standing of Plaintiff Morales

The FOIA, as amended effective October 1, 1996, provides for a federal district court's jurisdiction as follows:

On complaint, the district court of the United States in the district in which the complainant resides, . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case, the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set in subsection (b) of this section, and the burden is on the agency to sustain its action . . . .

5 U.S.C. § 552(a)(4)(B). Only Plaintiff Payne filed FOIA requests with the NSA. Plaintiff Morales sues as a "concerned citizen." The NSA has not withheld documents, properly or improperly, from Plaintiff Morales. It is Plaintiff Payne's FOIA requests to the NSA which are at issue in this case.

The FOIA creates a cause of action only for persons who have followed its procedures, which include requesting certain agency information. "[A] person like [Plaintiff Morales] whose name does not appear on a FOIA request for records may not sue in district court when the agency refuses to release requested documents [to the

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FOIA requestor] because he has not administratively asserted a right to receive them in the first place." McDonnell v. United States, 4 F.3d 1227, 1237 (3d Cir. 1993).

Furthermore, a "fundamental aspect of standing' is that it focuses primarily on the party seeking to get his complaint before the federal court rather than 'on the issues he wishes to have adjudicated.' " United States v. Richardson, 418 U.S. 166, 174 (1974) (quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). It is the filing of his requests and their actual or constructive denials which distinguishes the harm suffered by Plaintiff Payne under the FOIA from the harm incurred by Plaintiff Morales, as a concerned citizen, or by other members of "the general public arising from deprivation of the potential benefits accruing from the information sought." See McDonnell, 4 F.3d at 1238; see also NLRB v. Sears. Roebuck & Co., 421 U.S. 132, 144 n.10 ( 1975).

Because Plaintiff Morales is not a FOIA requester, under the plain language of 552(a)(4)(B), he has no standing to bring this lawsuit and the Court, thus, has no jurisdiction to adjudicate his claim.⁷ See McDonnell, 4 F.3d at 1236-39, 1260. Only Plaintiff Payne has standing to sue in this case. The Court, therefore, will grant

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⁷ Some courts evaluate a FOIA plaintiff's failure to make a FOIA request before bringing a lawsuit as not lack of standing but as failure to exhaust administrative remedies, and evaluate the issue under exhaustion doctrine(s). See United States v. Steele, 799 F.2d 461, 466 (9th Cir. 1986); Muhammad v. United States Bureau of Prisons, 789 F. Supp. 449, 450 (D . D . C . 1992) .

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Defendant's Motion to Dismiss Plaintiff Morales from this lawsuit. The Court's use of the term "Plaintiff in the remainder of its opinion refers only to Plaintiff Payne.

C. Proper Defendant

Plaintiff has sued NSA Director Lt. Gen. Kenneth A. Minihan. As quoted above, 5 U.S.C. §552(a)(4)(B) provides that a federal district court, on complaint, can enjoin the subject agency from withholding agency records. "Agency," as defined by 5 U.S.C. § 552(f), arguably does not include individual defendants or allow suits against individual employees of agencies, in their individual or official capacities. The majority of courts which have addressed the issue have found that § 552(a)(4)(B) and § 552(f) mandate that a FOIA suit is proper only against the agency involved, not agency personnel. See e.g., Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993) (per curiam); Petrus v. Bowen, 833 F.2d 581, 582-83 (5th Cir. 1987); Sherwood Van Lines, Inc. v. United States Department of the Navy, 732 F. Supp. 240, 241 (D.D.C. 1990); Gary Energy Corp. v. United States Department of Energy, 89 F.R.D. 675, 675-77 (D. Colo. 1981). But see, e.g Diamond v. FBI, 532 F. Supp. 216, 21920 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983); Hamlin v. Kelley, 433 F. Supp. 180, 181 (N.D. Ill. 1977). While the Tenth Circuit has held that individuals cannot be sued under the related PA see Parks v. IRS, 618 F.2d 677 684 (10th Cir. 1980) (The PA authorizes suit against an agency only. "The term 'agency' is

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defined in the [PA], and so defined it excludes individual officers or employees."), it has not spoken on the issue of individual liability in the FOIA context.

The Court adopts the majority view. However, because the Defendant does not challenge the Plaintiff's suit against him on the ground that he is an improper defendant, because this Court finds that the NSA was on notice of this suit because its Director was the original defendant, and to avoid further delay in the resolution of this case, rather than dismissing the Plaintiff's complaint or requiring an amendment to the Complaint before it will proceed in this case, the Court will deem that Plaintiff's complaint is against the NSA and not against Lt. General Kenneth A. Minihan, in his personal or official capacity. All pronoun references to the Defendant in the remainder of the opinion will be to "it" or "its."

III. FOIA

A. FOIA Policy

"The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v, Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

The FOIA provides a statutory right of access to federal agency records, except to the extent that such records, in whole or in part, are protected from disclosure by the FOIA's exemptions or exclusions. This statutory right of access to government is enforceable in court.

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It is undisputable that the purpose of the FOIA is disclosure, government openness and accountability, discouraging government secrecy, and promoting a democratic way of governing. See McDonnell v. United States, 4 F.3d 1227, 1251 (3d Cir. 1993); (" '[T]he FOIA is designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.' " (quoting Anderson v. Department of Health and Human Services, 907 F.2d 936, 941 (10th Cir. 1990) (internal quotations omitted in McDonnell)); In re Department of Justice, 999 F.2d 1302, 1312 (8th Cir. 1993) ("A healthy distrust of government, and a corresponding suspicion of government secrecy, is the underlying premise of [the] FOIA."); Maricopa Audubon Society v. United States Forest Service, 923 F. Supp. 1436, 1438-39 (D.N.M. 1995) ("'The predominant objective of [the] FOIA is disclosure. Congress enacted [the] FOIA to ensure that the public has access to government information so that it can scrutinize the government's performance of its statutory duties and thereby promote governmental honesty.'") (quoting Hale v. United States Department of Justice, 973 F.2d 894, 897 (10th Cir. 1992) (citing EPA v. Mink, 410 U.S. 73, 79-80 (1973), vacated on other grounds, 509 U.S. 918 (1993)); see also Office of Information and Privacy, U.S. Department of Justice, Freedom of Information Act Guide & Privacy Act Overview 3 (Sept. 1997 ed.) [hereinafter FOIA Guide]⁸ ("The principles of government

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⁸ The FOIA Guide is published by the Office of Information and Policy of the United States Department of Justice.

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openness and accountability underlying the FOIA . . . are inherent in the democratic ideal . . . ."); S. Rep. No. 813, 89th Cong., 1st Sess. 10 (1965), quoted in Hale, 973 F.2d at 897 ("A government by secrecy benefits no one. It injures the people it seeks to serve; it injures its own integrity and operation. It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty."). "Official information that sheds light on an agency's performance of its statutory duties falls squarely within [the FOIA's] statutory purpose." United States Department of Justice v. Reporters Commission for Freedom of the Press, 489 U.S. 749, 773 (1989); see id. at 774 ("[The] FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eyes of public scrutiny . . . .").

Because of the FOIA's broad purpose, the FOIA's exemptions are to be narrowly construed, with a presumption in favor of disclosure of government documents. See Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976); Anderson v. Department of Health and Human Services, 907 F.2d 936, 941 (10th Cir. 1990); Johnson v. United States Department of Justice, 739 F.2d 1514, 1516 (10th Cir. 1984), overruled on other grounds, Hale v. United States Department of Justice, 2 F.3d 1053, 1057 (10th Cir. 1993); see also Cal-Almond, Inc. v. United States Department of Agriculture, 960 F.2d 105, 107 (9th Cir. 1992). When an agency refuses to disclose documents, the burden is on the government agency to show that the invoked FOIA exemption applies. See 5 U.S.C. § 552(a)(4)(B); see also Bowen v. United States Food

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and Drug Administration, 925 F.2d 1225, 1226 (9th Cir. 1991) . The district court must conduct a de novo review of all exemption claims. See 5 U.S.C. §552(a)(4)(B); King v. Department of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987).

In conducting its de novo review, a court must balance the rights of the public to access government information against the needs of the government to prevent disclosure of information that would violate the rights of other individuals, harm the national security or national foreign policy, or impede the public's and the government's interest in effective and efficient government operations. See FOIA Guide, supra, at 3; see also McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir. 1993). In its review, the Court "must determine whether all of the requested materials fall within an exemption to the FOIA and may not simply conclude that an entire file or body of information is protected without consideration of the component parts." Anderson, 907 F.2d at 941.

In reviewing an agency's exemption claims under the FOIA and balancing the counterpositioned interests, a court must take into account the unlevel playing field that generally exists in the ability of the two parties, the requester and the agency, to argue for and against disclosure. See McDonnell, 4 F.3d at 1241 (The court must "strive to correct, however imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation."); see also In re Department of Justice, 999 F 2d 1302, 1313 (8th Cir. 1993). The agency usually holds all the cards, and, in response to the

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agency's nondisclosure contentions, the requester is often left making arguments based on surmise, speculation, or implication. See Founding Church of Scientology v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979); Gilmore v. NSA., No. 92-3646, 1993 U.S. Dist. LEXIS 7694 (N.D. Ca. April 30, 1993) (unpublished opinion). Because of this serious distortion of the traditional adversarial process, see In re Department of Justice, 999 F.2d at 1313, a district court must afford the requester a "meaningful opportunity to contest . . . the soundness of the [agency's] withholding." Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991) (internal quotations omitted). The district court also must ensure that it has an adequate foundation for review of the agency withholding and that there is an adequate factual basis for the court's summary judgment decision. See id.

An agency generally meets its burden by submitting affidavits that are reasonably detailed.⁹ "Because FOIA cases stand in a different posture with regard to discovery than do other cases, the sufficiency of the agency's affidavits is of paramount importance." Gilmore, 1993 U.S. Dist. LEXIS 7694. Not only are an agency's affidavits of utmost importance, but a court must give them substantial weight. See

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⁹ What is termed a "Vaughn index" usually is required to help level the playing field and to provide a court with enough of a public record to make a sound decision. A Vaughn index, usually submitted within an agency official's affidavit, typically identifies each document withheld, the statutory exemption advanced, and a particularized explanation of the nexus between disclosure of a particular document and harm to the interest protected by the claimed exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Weiner v. FBI, 943 F.2d 972, 977 (9th Cir. 1991). However, when an agency is refusing to admit or deny the very existence of the requested documents, an adequate Vaughn index may be difficult, if not impossible, for the agency to prepare, and other avenues must be pursued.

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McDonnell, 4 F.3d at 1244; Halperin v. CIA, 629 F.2d 144, 14849 (D.C. Cir. 1980); cf. 5 U.S.C. § 552(a)(4)(B) ("In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).").¹⁰

In October 1993, President Clinton and Attorney General Reno promulgated new FOIA policy memoranda. See President Clinton, [FOIA] Memorandum for Heads of Departments and Agencies, Oct. 4, 1993, reprinted at FOIA Update,¹¹ Summer/Fall 1993, available at < http://www.usdoj.gov/oip/oip.html >, [hereinafter President's FOIA Memorandum]; Attorney General Reno, [FOIA] Memorandum for Heads of Departments and Agencies, Oct. 4, 1993, reprinted at FOIA Update, Summer/Fall 1993, available at < http://www.usdoj.gov/oip/oip.html >, [hereinafter AG's 1993 FOIA Memorandum]; see also Memorandum Summary, FOIA Update. Winter 1993. available at < http://www.usdoj.gov/oip/oip.html >, [hereinafter Memorandum Summary]. In these policy memoranda, the President and the Attorney General

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¹⁰ Subsection (a)(2)(C) of the FOIA concerns the inspection and copying of "administrative staff manuals and instructions to staff that affect a member of the public." 5 U.S.C. (a)(2)(C). Subsection (b) of the FOIA delineates the nine exemptions to the FOIA and the segregability of nondisclosable portions from disclosable portions. See 5 U.S.C. § 552(b).

¹¹ The FOIA Update is a newsletter of information and guidance for federal agencies, published quarterly by the Office of Information and Privacy, United States Department of Justice.

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emphasized their commitment to the FOIA and their belief that the FOIA is vital to government openness and accountability and to a democratic government. See generally President's FOIA Memorandum; AG's 1993 FOIA Memorandum.

In addition to announcing a revitalized institutional attitude, which it requested government agencies to adopt and promote, the Administration also announced new FOIA policies. See President's FOIA Memorandum; AG's 1993 FOIA Memorandum. These new policies included adopting a presumption of disclosure and a policy that there should be an agency assertion of exemptions only in cases where the agency "reasonably foresees" that disclosure would be harmful to an interest protected by the invoked exemption. See AG's 1993 FOIA Memorandum. "Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be." Id. The Attorney General explained: "It is my belief that this change in policy serves the public interest by achieving the Act's primary objective--maximum responsible disclosure of government information--while preserving essential confidentiality." Id. Since October 1993, the Attorney General has consistently reiterated to federal agencies that they are to approach the FOIA with a spirit of customer-service and of government openness. Attorney General Reno, [Follow-Up FOIA] Memorandum to Heads of All Individual Components of the Department of Justice, Nov. 1993, reprinted at FOIA Update, Summer/Fall 1993, available at < http://www.usdoj.gov/oip/oip.html >; Attorney

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General Reno, Address at the National Press Club (March 16, 1994) (speech for National Press Club's Annual FOIA Day Celebration), summarized at FOIA Update, Spring 1994, available at < http://www.usdoj.gov/oip/oip.html >; Attorney General Reno, [FOIA] Memorandum for Heads of Departments and Agencies, May 1997, reprinted at FOIA Update, Spring 1997, available at < http://www.usdoj.gov/oip/oip.html >.

B. Exhaustion of Administrative Remedies

1. Procedure

Defendant contends that with respect to Plaintiff's first request he has failed to exhaust his administrative remedies, and that, as a result, the court has no subject matter jurisdiction over this portion of Plaintiff's action under Federal Rule of Civil Procedure 12(b)(1) . In the alternative, Defendant contends that Plaintiff has failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

Courts have differed in whether failing to exhaust administrative remedies under FOIA, or the related PA, is a subject matter jurisdiction issue, a nonjurisdictional jurisprudential exhaustion doctrine issue, or a ripeness issue. See e.g., Taylor v. United States Treasury Department, 127 F.3d 470, 475 (5th Cir. 1997) ("[E]xhaustion of administrative remedies under the Privacy Act is not a jurisdictional prerequisite. Whenever the Congress statutorily mandates that a claimant exhaust

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administrative remedies, the exhaustion requirement is jurisdictional because it is tantamount to a legislative investiture of exclusive original jurisdiction in the agency. However, in the absence of a statutory requirement of exhaustion of administrative remedies, the jurisprudential doctrine of exhaustion controls. The jurisprudential exhaustion doctrine is not jurisdictional in nature." (citations omitted)); Taylor v. Appleton, 30 F.3d 1365, 1367 n.3 (11th Cir. 1994) ("Defendants [in FOIA case] moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Exhaustion of administrative remedies is not a jurisdictional requirement, however. Instead, it is [a] requirement [which] perform[s] a function similar to the judicial doctrine of ripeness by postponing judicial review. Therefore, the FOIA claim . . . should have been dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted," and not pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. (citation and internal quotations omitted)); McDonnell v. United States, 4 F.3d 1227, 1240 n.9 (3d Cir. 1993) ("The magistrate judge indicated that McDonnell's failure to exhaust his administrative remedies deprived the court of subject matter jurisdiction. That is not exactly correct. A failure to exhaust administrative remedies does not per se deprive the court of subject matter jurisdiction. lt is a prudential consideration that the court takes into account in determining whether to exercise subject matter jurisdiction."); Crooker v. United States Secret Service, 577 F. Supp. 1218, (D.D.C. 1983) ("Because plaintiff has failed to exhaust the available

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administrative remedies, . . . [t]he Court has no subject matter jurisdiction over this [FOIA] case . . . .").

Exhaustion of administrative remedies is not clearly and explicitly mandated by Congress in the FOIA. As a result, the Court agrees that exhaustion of administrative remedies is not a jurisdictional issue in FOIA cases, but rather is a prudential concern and an issue of whether the Plaintiff has failed to state a claim upon which relief can be granted.¹² See Oglesby v. United States Department of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990); cf. Taylor, 127 F.3d at 475-76, 478 n.8 (PA case); Volvo GM Heavy Truck Corp. v. United States Department of Labor, 118 F.3d 205, 208-09 (4th Cir. 1997) (explaining exhaustion doctrine fundamentals). Therefore, the Court will approach the exhaustion of administrative remedies issue as a Rule 12(b)(6) matter.

2. Merits

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¹² There is no published Tenth Circuit law on this procedural issue. The Tenth Circuit has stated in an unpublished, summary opinion that it "agree[d] with the district court that the district court lacked subject matter jurisdiction over this [FOIA] action where plaintiff has failed to exhaust her remedies." Trenerry v. Internal Revenue Service, No. 95-5150, 70 F.3d 598, 1996 WL 88459 at *1 (10th Cir. March 1, 1996) (unpublished opinion). In an earlier unpublished opinion, the Tenth Circuit simply stated that a plaintiff's FOIA claims must be dismissed for failure to exhaust his administrative remedies. See Lanter v. Department of Justice, No. 93-6308, 19 F.3d 33, 1994 WL 75876 at *1 (10th Cir. March 8, 1994) (unpublished opinion). The Lanter court did not state that the FOIA claims before it were dismissed for lack of subject matter jurisdiction. See id. Because the Tenth Circuit's opinion in Trenerry was unpublished, extremely brief, and with no analysis of the technical procedural issue, its statement that the district court lacked subject matter jurisdiction acts as guiding, but not binding, precedent on the procedural issue of whether failure to exhaust administrative remedies under the FOIA is a 12(b)(1) matter or a 12(b)(6) issue.

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The question presented then is whether Plaintiff has failed to state a claim upon which relief can be granted because he has failed to exhaust the available administrative remedies under the FOIA. The Plaintiff's and the Defendant's arguments on exhaustion of administrative remedies are, to some extent, ships passing in the night. To clarify the issue, the Court will first set out the relevant law and then revisit the facts of this case.

The general rule is that before a FOIA requestor can file suit in court, she must exhaust her administrative remedies with the agency to which she has addressed her FOIA requests. See Oglesby, 920 F.2d at 61; Dettmann v. United States Department of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986); United States v. United States District Court, 717 F.2d 478, 480 (9th Cir. 1983); see also Lanter v. Department of Justice, No. 93-6308, 19 F.3d 33, 1994 WL 75876 (10th Cir. March 8, 1994) (unpublished opinion) ("Plaintiffs are required to show that they have exhausted their administrative remedies. They have failed to do so. We agree with the district court that all FOIA claims must be dismissed for failure to exhaust administrative remedies."). Under FOIA, as generally interpreted by the courts, a requestor can exhaust his administrative remedies in two ways: actually or constructively. The mechanics of actual exhaustion depends on the circumstances of each case. However, a requester has actually exhausted his administrative remedies if he has unsuccessfully appealed to the head of the relevant agency any denial of his requests. See 5 U.S.C. §

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552(a)(6)(A) (as amended); see also Oglesby, 920 F.2d at 61 (A "requester can seek judicial review . . . after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his remedies."); Hass v. United States Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994) (failure to appeal denial of FOIA request to higher authority within agency constitutes failure to exhaust administrative remedies); Gale v. United States Government, 786 F. Supp. 697, 699 (N.D. 111. 1990); cf. Gillin v. Internal Revenue Service, 980 F.2d 819, 821 (1st Cir. 1992) ( Exhaustion not at issue impliedly because plaintiff "had pursued his administrative appeals without gain" before filing suit).

A requester has constructively exhausted her remedies if the relevant agency has not responded to her request (or to her administrative appeal) in the statutorily prescribed time period, and the requester brings an action in a federal district court to order the production of improperly withheld agency documents before the agency eventually does respond, albeit untimely, to her request. See 5 U.S.C. §552(a)(6)(C) (as amended); see also Pollack v. Department of Justice, 49 F.3d 115 (4th Cir. 1995); Oglesby v. United States Department of the Army, 920 F.2d 57 (D.C. Cir. 1990), 920 F.2d 57. Explained another way:

[T]he FOIA permits requesters to treat an agency's failure to comply with its specific time limits as full, or "constructive," exhaustion of administration remedies. Thus, when an agency does not respond to a perfected request within the . . . statutory time limit . . . set forth in the Act, the requester is deemed to have exhausted administrative remedies and

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can seek immediate judicial review, even when the requester had not filed an administrative appeal . . . .

The special right to immediate judicial review that arises from the lack of a timely response lapses, however, if an agency responds to a request at any time before suit is filed; in that situation, the requester must administratively appeal a denial and wait [the statutorily prescribed amount of time] for the agency to adjudicate the appeal . . . before commencing litigation.

FOIA Guide, supra, at 457 (footnotes omitted).

The determination of whether Plaintiff has exhausted his administrative remedies under the FOIA is a fact-intensive inquiry. Thus, before the Court can make a determination, a detailed review of the relevant facts is necessary. "In a FOIA action, the facts are viewed in the light most favorable to the requester of information." Katzman v. CIA, 903 F. Supp. 434, 437 (E.D. N.Y. 1995) (citing Becker v. Internal Revenue Service, 34 F.3d 398, 405 (7th Cir. 1994)).

On June 16, 1996, by two letters, Plaintiff made two FOIA requests. However, Plaintiff did not address his requests to the proper personnel in the NSA. As a result, the legal date of the receipt of Plaintiff's requests by the NSA are not the date the requests were mailed, but the date that the requests were received by the proper NSA-FOIA personnel--June 20, 1996 and July 18, 1996. The NSA, pursuant to the statutory provisions in effect at the time, had ten days to respond in the statutorily prescribed

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manner.¹³ The NSA did not respond with the required response in the required time, nor did they request an extension of time in which to reply, see id.¹⁴

On July 15, 1996, the NSA's FOIA unit sent to various NSA offices a request for a cost estimate for a search of records responsive to Plaintiff's first request. By August 7, 1996, the FOIA case officer had received all the search cost estimate responses for Plaintiff's first request, and the case file was placed in the queue for a response to Plaintiff, including the search cost estimate.

Having heard nothing from the NSA in response to his two requests, rather than bring suit in a federal district court, as Plaintiff could have done under the doctrine of "constructive" exhaustion, see 5 U.S.C. § 552(a)(6)(C), on October 24, 1996, by letter to the head of the NSA, Lt. General Kenneth A. Minihan, Plaintiff appealed what he characterized as a denial of his two requests. By statute, the NSA was required to

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¹³ To comply with the requirements of the FOIA, an agency's response must inform the requester of the agency's determination of whether to comply with the request, of the reasons for that determination, and of the right of that requester to appeal to the head of the agency any adverse determination. See 5 U.S.C. §552(a)(6)(A)(i). The NSA's FOIA office mailed to Plaintiff in June and July of 1996 notification receipt postcards in response to Plaintiff's two FOIA requests, postcards which Plaintiff contends he never received. (Copies of these postcards were sent to Plaintiff by the NSA in December of 1996.) These notification receipt postcards were not part of the Record. However, even if Plaintiff had received these postcards soon after they were sent, it appears from what is in the Record that these notification receipt postcards were not request "responses" as defined by the FOIA under § 552 (a)(6)(A)(i).

¹⁴ The FOIA, as amended by the Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552 (West. Cum. Ann. Pocket Part 1998), have changed how and when an agency can request more time in which to respond to a FOIA request from the previous ten-day extension for "unusual or exceptional circumstances" rule.

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respond to Plaintiff's letter of appeal, with a determination, within twenty business days of receipt. See id. at § 552(a)(6)(A)(ii). The NSA did not respond until two months after the date of Plaintiff's appeal letter. By a letter dated December 31, 1996, the NSA, through NSA Deputy Director and FOIA/PA Appeals Authority, William P. Cromwell, responded to Plaintiff's appeal of the Agency's de facto denial of both of his requests.¹⁵

In his December 31, 1996 letter, Cromwell informed Plaintiff that the FOIA portion of his two requests would require an Agency-wide search and that the Office of Policy would forward a cost estimate for this search under separate cover. (The search cost estimate for Plaintiff's first request had already been compiled four months earlier by the NSA, but not yet sent to Plaintiff.) Cromwell also informed Plaintiff of his right to treat his letter as a denial of Plaintiff's appeal and informed Plaintiff of his right to judicial review under 5 U.S.C. 552(a)(4)(B).¹⁶

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¹⁵ Under the FOIA, administrative appeals are to be directed to the head of the agency. However, "by regulation, the [NSA] Director has appointed the NSA Deputy Director[, William P. Cromwell,] as the FOIA/PA Appeal Authority." Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A. (Declaration of Gary Winch) at 5.

¹⁶ Specifically, Cromwell stated:

Your FOIA requests . . . will require an Agency-wide search. The Office of Policy is compiling the cost estimates . . . and will forward the cost estimate to you under separate cover . . . .

Because the processing of your FOIA request[s] has not progressed to a point where there has been any initial, substantive Agency determinations on the release or withholding of

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A search cost estimate for Plaintiff's first request, which had been compiled by August 7, 1996, with a denial of Plaintiff's fee waiver request, was sent to the Plaintiff by a letter, dated January 6, 1997. Plaintiff failed to either pay the fee requested to commence the first search, or to appeal the denial of his fee waiver request. Instead, Plaintiff filed suit on February 28, 1997.

Defendant contends that Plaintiff missed his opportunity to bring this suit under the FOIA constructive exhaustion doctrine. Assuming, as Defendant does, that the relevant untimely response by the Agency to Plaintiff's first request was the Agency's January 6, 1997 letter and not the earlier December 1996 letter, and applying the rules of constructive exhaustion, the Court agrees that Plaintiff waived his constructive exhaustion right to sue in federal district court. Plaintiff did not bring this lawsuit after the NSA failed to satisfy its statutory duty of responding to his request within the then

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responsive documents, I can offer you no administrative remedy.

The FOIA permits you to treat this letter as a denial of your appeal, and you are hereby advised of your rights under 5 U.S.C. 552 to seek judicial review of my determination. You may seek an order from the United States District Court in the district in which you reside, in which you have your principal place of business, in which this Agency's records are situated (District of Maryland) or in the District of Columbia for the production of information held by this Agency. Title 5 U.S.C. § 552(a)(4)(B) sets out your rights in this matter with respect to such judicial action.

Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A, Attachment 4 (December 31, 1996 letter to William Payne from William P. Cromwell).

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statutorily prescribed time of ten working days, but before the NSA finally did reply on January 6, 1997.

Defendant also contends that Plaintiff has not exhausted his remedies because he failed to pay the search cost fees or appeal the denial of his fee waiver request, both of which he was informed of in the NSA's January 6, 1997 letter. However, the Court disagrees. Plaintiff has actually exhausted his administrative remedies. The Court's reasons are as follows. First, as already stated, an unsuccessful appeal of any denial to the head of the relevant agent is actual exhaustion of administrative remedies under the FOIA. See Ruotolo v. Department of Justice, 53 F.3d 4, 8 (2d Cir. 1995); Oglesby v. United States Department of the Army, 920 F.2d 57, 61, 65 (D.C. Cir. 1990); Spannaus v. United States Department of Justice, 824 F.2d 52, 59 (D.C. Cir 1987); Hass v. United States Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994); see also Trenerry v. Internal Revenue Service, No. 94-92, 1994 WL 714063 at *1 (N.D. Okla. Sept. 13, 1994). Plaintiff appealed an implied or de facto denial of his requests to the head of the NSA; the NSA acknowledged the implied denial and the appeal; and the NSA denied his appeal and informed him of his rights to sue in a federal district court under 5 U.S.C. § 552(a)(4)(B). (It is salient that Defendant informed Plaintiff that his right to sue in federal district court arose under § 552(a)(4)(B) and not under § 552(a)(6)(C) (constructive exhaustion provision).)

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Second, the Court recognizes that there are cases which have held that actual exhaustion of remedies occurs when a requester has paid the search fee or unsuccessfully appealed the denial of her fee waiver request. See, e.g., Oglesby, 920 F.2d at 66; Trueblood v. United States Department of Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996); Crooker v. United States Secret Service, 577 F. Supp. 1218, 1219 (D.D.C. 1983); see also Kuchta v. Harris, No. 92-1121, 1993 WL 87705 at *3 (D.Md. March 25, 1993) (unpublished disposition). The Court does not dispute the correctness of the holding of these fee cases, given the facts of those cases. However, these cases, generally speaking, are factually distinguishable from the case at bar. In the fee cases, generally, no prior unsuccessful appeal by the requester to the agency head of any agency denial had occurred before the requestor sued in federal court. In some of these fee cases, the requester had done nothing before the agency's untimely response to her request in its fee estimate letter. See, e.g., Oglesby, 920 F.2d at 66. In other of these fee cases, the requester had administratively appealed the agency's nonresponsiveness, but the agency had not denied the appeal or informed the requester of his rights to sue in federal district court under § 552(a)(4)(B), but instead the agency had requested additional time to respond to the request or otherwise informed the requester of the status of his request. See Trueblood, 943 F. Supp. at 66-67; Crooker, 577 F. Supp. at 1219. In one of these fee cases, the requester and the agency had had a series of communications or discussions about the requester's request, duplication costs, and

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applicability of FOIA exemptions, before the agency notified the requester of the estimated search fees. See Kuchta, 1993 WL 87705, at *1-*2. The requester sued in federal court after he received the agency's letter notifying him of the estimated search fee, without corresponding further with the agency. See id. In all of these fee cases, the requester clearly failed to exhaust her administrative remedies before filing suit. This is not the situation here.

Third, the NSA's statement to Plaintiff regarding his judicial appeal rights provided Plaintiff actual rights to sue in district court and not constructive rights. Defendant contends that even though Plaintiff was informed of his judicial appeal rights in the NSA's December 31, 1996 letter, Plaintiff was on notice through the NSA's January 6, 1996 letter that he had to take further administrative action (pay the search fee or appeal the NSA's denial of fee waiver request), and that by failing to file suit before the January 6, 1997 letter, Plaintiff waived his right to appeal in district court. However, Defendant confuses the doctrines of actual and constructive exhaustion. Under the FOIA doctrine of constructive exhaustion, Plaintiff indeed would have waived his right to appeal if he had failed to sue before the NSA's untimely response in its January 6, 1997 letter ~ he had taken no other administrative action. However, the January 6, 1997 letter is irrelevant in the case of prior actual exhaustion. With the December 31, 1996 letter denying Plaintiff's appeal and informing Plaintiff of his right to bring suit in federal court under § 552(a)(4)(B), Plaintiff s actual rights were

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perfected, and he was free to sue in district court. See Pollack v. Department of Justice, 49 F.3d 115, 118 (4th Cir. 1995).¹⁷

Fourth, any doubts as to whether Cromwell's forked response perfected Plaintiff's actual exhaustion rights, or was a confused letter intending only to inform Plaintiff that the Agency was still working on his requests, should be resolved in favor of Plaintiff. The NSA is deemed to have knowledge of its own policies and of FOIA law. Cromwell also is deemed to have had knowledge of the fact that the search fee compilation had been completed in early August 1996 by the NSA's FOIA case worker for Plaintiff's first request. Instead of both informing Plaintiff that the NSA was still working on his requests and that his appeal was denied and he could sue in district court, Cromwell could have informed Plaintiff only that the NSA was working on his request, and that Plaintiff's appeal was unripe. See Hemenway v. Hughes, 601 F. Supp. 1002, 1003 (D.D.C. 1985) (Requester wrote agency stating that because he had received no response, he assumed his request had been denied. Requester also stated

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¹⁷ This is not to say that Plaintiff could have waited an unreasonable period of time before suing after he had actually exhausted his administrative remedies. However, because Plaintiff did sue in a reasonable time after his receipt of the December 31, 1996 letter, the Court need discuss the issue of untimely suits.

This also is not to say that Plaintiff is under no obligation to pay any reasonable statutorily allowable search or duplication fees. See Pollack v. Department of Justice, 49 F.3d 115, 119 (4th Cir. 1995); see also 5 U.S.C. 552(a)(4)(A). However, Plaintiff is not required to repeatedly actually exhaust his administrative remedies, once he has already done so once and filed a lawsuit in federal court. Cf. Dettmann v. United States Department of Justice, 802 F.2d 1472, 1477-78 (D.C. Cir. 1986) (Gesell, D.J., dissenting) (majority's holding that requester must pursue administrative remedies twice frustrates the purpose of the FOIA, is impractical and unnecessary, and places form over substance).

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that his letter was a formal appeal of the de facto denial. Agency responded, in same month as appeal letter, that it had not had an opportunity to review his request.); see also Trueblood v. United States Department of Treasury, 943 F. Supp. 64, 66-67 (D.D.C. 1996); Trenerry v. Internal Revenue Service, No. 94-92, 1994 WL 714063 at *1 (N.D. Okla. Sept. 13, 1994). Cromwell also could have included the search fee estimate that had been compiled by August 7, 1996. In the alternative, Cromwell could have denied Plaintiff's appeal and informed him of his constructive right to sue under 5 U.S.C. § 552(a)(6)(C).

A reasonable person's interpretation of the NSA's December 31, 1996, letter would be that she had permission to sue in district court. Plaintiff is a lay person and he followed the NSA's instructions, and the cited statutory provision, 5 U.S.C. § 552(a)(4)(B). Agencies and courts demand that FOIA requesters follow FOIA policies and law, as provided in 5 U.S.C. § 552 and in caselaw. Plaintiff here did so in every relevant respect, and he should not be punished for the NSA's obfuscation. See Trenerry v. Internal Revenue Service, No. 95-5150, 78 F.3d 598, 1996 WL 88459 at *1 (10th Cir. March 1, 1996) (unpublished opinion) (Plaintiff failed to exhaust administrative remedies under FOIA. "[T]he procedures for exhaustion were clearly articulated to [the plaintiff by the agency]."). Such a resolution of the conflicting intent of the NSA's December 31, 1996 letter is in the spirit of the FOIA and advances the Administration's new FOIA policy.

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Because Plaintiff has actually exhausted his administrative remedies under the FOIA, he has properly stated a claim upon which relief could be granted. Therefore, Defendant's Motion to Partially Dismiss must be denied.¹⁸

C. Summary Judgment

1. Pro se Litigants

Pleadings filed pro se are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The pleadings of parties proceeding pro se are to be liberally construed. See Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994). Despite this rule of liberal construction, pro se litigants are bound by the same rules of procedure as other litigants. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).

2. Legal Standard

A motion for summary judgment should be granted only when there is no genuine issue of material fact, and, as a matter of law, the moving party is entitled to judgment. See Fed. R. Civ. P. 56(c). A court's job in ruling on a motion for summary judgment is not to weigh the evidence, make credibility determinations, or

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¹⁸ Defendant's Motion for Partial Dismissal concerns only Plaintiff's first request. There is no question that Plaintiff has actually or constructively exhausted his administrative remedies as to his second request. To the extent that the NSA's December 31, 1996 letter covered Plaintiff's second request, Plaintiff has actually exhausted his administrative remedies. In the alternative, Plaintiff clearly has constructively exhausted his remedies for his second request because he brought this lawsuit before the NSA responded to his second request on September 18, 1997. The NSA's response to Plaintiff's second request was extremely untimely--more than a year after the deemed receipt of the request on July 18, 1996.

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draw inferences from the facts, but, rather, to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). The inquiry a court must make is "whether the evidence presents a sufficient disagreement to require submission to a [fact finder] or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. If a court finds that there are genuine and material factual issues, these issues should be resolved by the fact finder, and summary judgment is precluded. See id. at 248.

When ruling on a motion for summary judgment, a court must construe the facts in the light most favorable to the nonmovant. See Magnum Foods, Inc. v. Continental Casualty Co., 36 F.3d 1491, 1497 (10th Cir. 1994). All doubts must be resolved in favor of the existence of triable issues. See World of Sleep. Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett. 477 U.S. 317, 325 (1986). Only then does the burden shift to the nonmovant to come forward with evidence showing that there is a genuine issue of material fact. See Bacchus Industries. Inc. v. Arvin Industries. Inc., 939 F.2d 887, 891 (10th Cir. 1991).

3. Plaintiff's First Summary Judgment Motion

In his first motion for summary judgment, Plaintiff failed to establish that there were no material facts at issue in this case and that the Plaintiff was entitled to

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judgment as a matter of law. There were, and are, many controverted factual and legal issues in this case, such as did Morales have standing to sue, did Plaintiff exhaust his administrative remedies so that it was proper for the Court to hear Plaintiff's motion for summary judgment, and did the NSA improperly withhold documents that Plaintiff requested in his two FOIA requests. Because Plaintiff did not meet his burden under Federal Rule of Civil Procedure 56 of showing there were no triable issues or that the evidence was so one-sided that he must prevail as a matter of law, his motion for summary judgment must be denied.

4. Plaintiff's Second Summary Judgment Motion--Based On Evidence from Admissions

Plaintiff filed a Motion for Summary Judgment Based on Evidence from Admissions. Previously, on October 23, 1997 [Doc. No. 28], Defendant filed a Motion and Memorandum to Strike Any and All of Plaintiff's First Set of Requests for Admissions. Defendant's Motion was granted by the Magistrate Court on January 28, 1998 [Doc. No. 37], and Plaintiff's First Set of Admissions were struck from the Record. Because Plaintiff's First Set of Admissions were struck from the Record, Plaintiff's Motion for Summary Judgment Based on Evidence from Admissions must be denied as moot by the Court. See Powell v. McCormack, 395 U.S. 486, 496 (1969) (A dispute becomes moot when "the issues presented are no longer 'live' . . . .").

5. Defendant's Motion for Summary Judgment--FOIA Exemptions 1and 3

In the portion of Plaintiff s second FOIA request which is before the Court, Plaintiff requested access to all NSA intercepted Iranian and Libyan messages and translations from June 1, 1980 to June 10, 1996. In a letter dated September 18, 1997, more than one year after his request, Plaintiff was informed by the NSA that the requested documents would not be released pursuant to Exemptions 1 and 3 of FOIA. Generally, FOIA exemptions are to be narrowly construed. Defendant bears the burden of demonstrating the applicability of the FOIA exemptions it invokes. The Clinton Administration's new FOIA policy advocating openness and disclosure whenever possible also must be effectuated.

a. Exemption 1 - National Security

In invoking FOIA Exemption 1, the NSA explained to Plaintiff that

the fact of the existence or non-existence of NSA intercepted Iranian/Libyan messages and translations is a currently and properly classified matter in accordance with Executive Order 12958. Thus, this portion of your request is denied pursuant to [Exemption 1 of the FOIA] which provides that the FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are in fact properly classified pursuant to such Executive Order.

Def. Mot. Partial Dism. and Mot. Summ. Judg., Exh. A., Attachment 6 (Letter Dated Sept. 18, 1997, from Gary Winch, Director of Policy, NSA, to William Payne). Plaintiff responds that Exemption 1 does not apply in this case because there has been a prior disclosure of the requested information Plaintiff also contends that Defendant's

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invocation of Exemption 1 is pretextual, and that under Executive Order 12958 Exemption 1 cannot be invoked to avoid embarrassment or to cover-up agency wrongdoing or ineptitude.

Exemption 1, which also is known as the National Security Exemption, precludes disclosure of information that is (1) "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national security or foreign policy and" that (2) is "in fact properly classified pursuant to such Executive Order." 5 U.S.C. § 552(b)(1). The relevant executive order in effect is Executive Order 12958.¹⁹ Under § 3.7 of Executive Order 12958, in response to a FOIA request, "an agency may refuse to confirm or deny the existence of requested information whenever the fact of its existence or nonexistence is itself classified under this order." Exec. Order 12968 § 3.7(a). This type of response is known as a "Glomar response" or "Glomarization." See FOIA Guide, supra, at 64 & note 46; see also Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). Information that concerns intelligence activities, intelligence sources or methods, cryptology, foreign relations or

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¹⁹ Executive Order 12958 took effect October 14, 1995, replacing Executive Order 12356. The determination of which Executive Order applies to an agency's Exemption 1 invocation may be determined by which Executive Order was in force at the time the agency's ultimate classification decision was made. See King v. United States Department of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). In the case before the Court, a classification date or dates for the requested information is unknowable, and possibly nonexistent, because the very existence of the requested data is unknown and at issue. However, the classification date of the Agency's "Glomar response" appears to be no later than September 1997. Neither party has challenged the applicability of Executive Order 12958 to this case. As a result, this Court will apply Executive Order 12958 in evaluating Defendant's invocation of Exemption 1.

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activities of the United States, foreign government information, or vulnerabilities or capabilities of systems or projects relating to national security may be classified by an agency. See Exec. Order 12958 § 1.5. Information that reveals an intelligence source, method, or activity, or a cryptologic system or activity or foreign government information, or that would damage relations between the United States and a foreign government may remain classified for more than the general statutory maximum of ten years from the original classification decision date. See Exec. Order 12958 § 1.6.

Defendant bears the burden of demonstrating "that the withheld material is under the purview of an Executive Order and has been properly classified pursuant to such order." Patterson v. FBI, 705 F. Supp. 1033, 1039 (D.N.J. 1989), aff'd 898 F.2d 595 (3d Cir. 1990). However, in regard to Exemption 1, because of the government's superior knowledge about national defense and foreign policy matters and its "unique insights into what adverse [e]ffects might occur as a result of public disclosure, . . . courts are required to 'accord substantial weight to an agency's affidavits concerning the details of the classified status of a disputed record.' " American Friends Service Committee v. Department of Defense, 831 F.2d 441, 444 (3d Cir. 1987) (quoting Salisbury v. United States, 690 F.2d 996, 970 (D.C. Cir. 1982) (quoting Sen. Report No. 1200, 93rd Cong. 12 (1974), U.S. Code Cong. & Admin. News 6267, 6290 (1974)).

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Under the Administration's new FOIA policy, when considering whether to withhold information under a FOIA exemption, agency personnel should apply a "foreseeable harm" standard. "As a rule, rather than withholding an item of information as exempt on the basis of its character in general, a FOIA officer now should pause to specifically consider the actual sensitivity of that item of information in particular." Memorandum Summary, supra. Information should be withheld "only after consideration of the reasonably expected consequences of disclosure in each particular case." AG's 1993 FOIA Memorandum, supra. "The individual sensitivity of each item of information and the particular circumstances of each case--including the passage of time--are the primary considerations in the application of the 'foreseeable harm' standard." Memorandum Summary, supra.

Defendant contends that the fact of the existence or nonexistence of Iranian and Libyan message traffic between June 1, 1980 and June 10, 1996 falls within the classification provisions of Executive Order 12958 and thus its nondisclosure is covered by Exemption 1 of FOIA. Defendant further states that to admit or deny the existence of the sought information is currently classified SECRET in accordance with Executive Order 12958. Defendant explains: "Information that would reveal either directly or indirectly, the degree of exploitation of a foreign government's communications by NSA is classified pursuant to Executive Order 12958, Sections 1.5(c) and l.5(g) because disclosure would result in the impairment or possible defeat of NSA's

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communications intelligence efforts and the loss of valuable foreign information." Def. Mot. Partially Dism. and Mot. Summ. Judg. at 13. Defendant further explains that "[t]o admit or deny that such records exist would reflect the vulnerabilities and capabilities of systems, installations, projects, or plans relating to national security. Id. In support of its contentions, Defendant cites the Declaration of Gary W. Winch, NSA Director of Policy, which is attached to its motion as Exhibit A.

Plaintiff responds, first, that the NSA has waived its right to invoke Exemption 1 because the information that Plaintiff seeks is already publicly known, if not publicly available. In establishing prior disclosure, Plaintiff bears "the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). Plaintiff points to articles published in the news and magazine media, both here and abroad, as well as Internet sources. However, that there have been articles or media/public speculation about the NSA's "Trojan horse" crypto-spiking, and about the circumstances surrounding the arrest of the Crypto AG salesman Hans Buehler by Iran, is insufficient to establish prior public disclosure or waiver.

A very stringent standard is applied to prior disclosure claims. "Plaintiff cannot merely point to information that happens to find its way into a published account; rather there must be an 'official acknowledgment by an authoritative source.' " Pfeiffer v. CIA, 721 F. Supp. 337, 342 (D.D.C. 1989) (quoting Afshar, 702 F.2d at 1130); see

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Exec. Order 12958, 1.2(c) ("Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information."). Courts have held that general discussions by Congress, books written by former CIA officials, unofficial agency statements, and books or articles cleared by the CIA do not constitute official prior disclosure. See Pfeiffer, 721 F. Supp. at 342 (citing cases). It has even been held that "an agency does not waive FOIA [E]xemption 1 by permitting an agency official publicly to discuss material otherwise properly exempt from FOIA disclosure by that provision." Public Citizen v. Department State, 11 F.3d 198, 204 (D.C. Cir. 1993). "FOIA plaintiffs cannot simply show that similar information has been released, but must establish that a specific fact already has been placed in the public domain . . . ." Id. at 201.

The reason for imposing such a high standard, and for devaluing the legal salience of prior publications or public statements which allegedly demonstrate that the requested information is in the public forum, is that even if the published information is true, the harm that the agency fears may not be the information's dissemination in the media by reporters, etc., but the harm that will be caused by an official acknowledgment of such information. See Afshar, 702 F.2d at 1130-31 ("[E]ven if a fact . . . is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to national security. Unofficial leaks and public surmise can often be

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ignored by foreign governments that might perceive themselves to be harmed by disclosure . . ., but official acknowledgment may force a government to retaliate."); see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) ("[W]e have unequivocally recognized that the fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods, and operations."); Military Audit Project v. Casey, 656 F.2d 724, 74345 (D.C. Cir 1981) (The lack of authoritative acknowledgment can leave foreign intelligence services guessing as to whether information is true.); Phillippi v. CIA, 655 F.2d 1325, 1332-33 (D.C. Cir. 1981) ("In the world of international diplomacy, where face-saving may often be as important as substance, official confirmation . . . could have an adverse effect on our relations [with other nations."). As the Afshar court explained:

[The FOIA] bars the court from prying loose from the government even the smallest bit of information that is properly classified . . . . In many cases, the very fact that a known datum appears in a certain context or with a certain frequency may itself be information that the government is entitled to withhold.

Afshar,, 702 F.2d at 1130.

The sources cited by Plaintiff clearly are not "official acknowledgment"--with the possible exception of President Reagan's alleged announcement on television that the United States was reading Libyan communications. In addition, the information in the cited "unofficial" sources does not duplicate the information sought by Plaintiff--Iranian

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and Libyan message traffic from June 1, 1980 to June 10, 1996. Rather, the information sought by Plaintiff, assuming its existence, appears to only corroborate or further delineate the stories or theories to which Plaintiff points. As for President Reagan's statement, Plaintiff did not provide a transcript of this statement to the Court. As a result, the Court is unable to determine whether this alleged statement constitutes an "official acknowledgment," whether it was as specific as the information requested, or whether it concerned information sufficiently similar to the requested information so as constitute a waiver. See Public Citizen v. Department of State, 11 F.3d 198, 202 (D.C. Cir. 1993). Plaintiff has failed to meet his burden of establishing that any of his proffered evidence represents an official governmental disclosure or acknowledgment or even that the published or otherwise disseminated information duplicates his requested information. Because Plaintiff has offered no probative evidence in support of his prior disclosure claim, this claim must fail.

Plaintiff's second contention in response to Defendant's invocation of Exemption 1 is that the Executive Order at issue, Executive Order 12958, prohibits classification of information in order to "conceal violations of law, inefficiency, or administrative error," Exec. Order 12958 § 1.8(a)(1), or to "prevent embarrassment of a person, organization, or agency," Exec. Order 12958 § 1.8(a)(2), or to "prevent or delay the release of information that does not require protection in the interest of national security," Exec. Order 12958 § 1.8(a)(4).

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Plaintiff made his FOIA request in order to reveal to the public, the Clinton administration, and Congress the NSA's classification abuse, its cover-up of wrongdoing, and its substandard, inefficient, and wasteful cryptogram work and methods. Plaintiff's request goes to the core of the FOIA. The Agency responded to Plaintiff's request by "Glomarizing." Plaintiff's contends that the Agency's invocation is pretextual or unjustified. As another district court has stated:

When the request, on its face, seeks information that goes to the core of the FOIA, and the agency asserts a "Glomar response," the court must be much more diligent in deciding whether to undertake a deeper inquiry into the agency's claims . . . . Where there are any doubts as to whether a claimed exemption applies, the court should not rely on the government's "Glomar response" . . . . [T]he court must undertake the ad hoc balancing of interests in deciding whether an exemption applies . . . . Depending on the request, the public's right to know may outweigh [the government's secrecy] interests. Conversely, simply because a request seemingly goes to the core of [the] FOIA does not mean that the public interest in disclosure will prevail. Where a court is called upon to balance the competing interest, it must do so conscientiously on a case by case basis.

McNamera v. United States Department of Justice, 974 F. Supp. 946, 955-56 (W.D. Tex. 1997). While a court must give an agency's affidavit substantial weight, see Halperin v. CIA, 629 F.2d 144, 14849 (D.C. Cir. 1980), a court may not sit on its hands. Because the FOIA request seeks information that could "shed" light on an agency's performance of its statutory duties," United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989); see id. at

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775, the court "has a duty to undertake a further inquiry . . . ." McNamera, 974 F. Supp. at 957. A court must take an active role in fulfilling the goals of the FOIA and making an independent review of the agency's proffer of evidence. See id. at 956.

Given the purpose of the FOIA, the Administration's FOIA policy memoranda, the purpose of Plaintiff's request, and the Court's heavy obligation of de novo review under the FOIA, Plaintiff's contentions must not be taken lightly and the NSA's exemption claims "rubber stamped." To grant Defendant's motion for summary judgment, the Court must find that the NSA's "Glomar response" and invocation of Exemption 1 are factually supported and the balancing of the private and public interests weighs in its favor. The Court finds that the public record has been established as much as is possible without letting the cat out of the bag, and making this controversy moot. See King v. United States Department of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987); Fitzgibbon v. CIA, 578 F. Supp. 704, 709 (D.D.C. 1983). However, the NSA's affidavit supporting its "Glomar response" does not provide the Court with an adequate factual basis on which to render its decision. See Katzman v. CIA, 903 F. Supp. 434, 438 (E.D.N.Y. 1995). Genuine and material factual issues remain. The public, nonclassified affidavit provided as an exhibit by Defendant is insufficient to allow the Court to evaluate parties' conflicting claims on the Exemption 1 issue, determine whether the NSA properly invoked Exemption 1, or to balance the interests involved in an informed manner. Consequently, the Court requests that

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Defendant provide to it, as Defendant has offered, an in camera ex parte declaration or detailed affidavit, explaining the nexus between its "Glomar response" (i. e., its admitting or denying the existence of Iranian and Libyan message traffic between June 1, 1980 and June 10, 1996) and/or disclosing any, some, or all of the messages and translations to Plaintiff, if they exist, and the foreseeable harm to national security and/or impairment of NSA's communications intelligence (COMINT) efforts and loss of valuable foreign intelligence information. See Anderson v. Department of Health and Human Services, 907 F.2d 936, 942 (10th Cir. 1990); see also In re Department of Justice, 999 F.2d 1302, 1318 (8th Cir. 1993); Fitzgibbon, 578 F. Supp. at 709. If these messages exist, some of them are eighteen years old and may no longer need to be classified. See Exec. Order 12958, 1.8(a)(4). The Court will stay any decision on Defendant's Motion for Summary Judgment (Exemption 1 claim) until after the in camera ex parte classified declaration or detailed affidavit of Defendant to the Court. The Defendant shall have sixty days from the date of this opinion to provide the Court an in camera ex parte declaration or detailed affidavit.²⁰

_____________________

²⁰ The Court recognizes that an in camera ex parte review "has the defect that it is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure," i.e., the Plaintiff. Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976); see McNamera v. United States Department of Justice, 974 F. Supp. 946, 956 (W.D. Tex. 1997). However, the Court is satisfied that the public record has been made as complete as is possible within the confines of a nonclassified, public document. The Court's examination of Defendant's classified declaration or affidavit, without participation by Plaintiff, is the only road by which the Court can effect " its congressionally imposed obligation to make a de novo determination of the propriety of a refusal to provide information in response to a FOIA request." Phillippi, 546 F.2d at 1013.

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b. Exemption 3 - Statutory Exemption

Plaintiff's requested information under his second request was denied additionally by Defendant on the basis of Exemption 3 of the FOIA. When they are advanced by an agency for national security reasons, Exemption 1 and 3 have similar purposes. Exemption 3 differs from Exemption 1 in that rather than being based on an executive order, it is based on statutory law. Exemption 3 nondisclosure mandates, generally, also are more explicit and clear-cut, and less discretionary, than those under Exemption l.

Under Exemption 3, an agency may withhold information "specifically exempted from disclosure by statute," other than the FOIA, if that statute either "(A) requires that the matter be withheld from the public in such a manner as to leave no discretion on the issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). "[T]he sole issues for decision in determining the applicability of Exemption 3 to a particular set of documents are the existence of either type of relevant statue and the inclusion of withheld material within the statute's coverage." McDonnell v. United States, 4 F.3d 1227, 1246 (3d Cir. 1993) (citing Association of Retired Railroad Workers v. United States Railroad Retirement Board, 830 F.2d 331, 336 (D.C. Cir. 1987)).

In withholding the information requested by Plaintiff in his second request, pursuant to Exemption 3, Defendant invoked statutes 18 U.S.C. 798(a)(3), 798

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(a)(4)²¹; Section 6 of Pub. Law No. 86-36 [50 U.S.C. 402 note]²²; and 50 U.S.C. 403-3(c)(5).²³ (Subsection 403-3(c)(5) of Title 50 of the United States Code is now 403-3(c)(6). The Court will refer to this subsection as 403-3(c)(6), and not as 4043(c)(5).) Plaintiff's response to Defendant's invocation of Exemption 3 is similar to his response to Defendant's advancement of Exemption 1--waiver by prior disclosure and inapplicability of exemption. The Court's prior disclosure analyses of these two Exemption 1 responses by Plaintiff apply in equal force to this Exemption 3 discussion. As explained under the Court's earlier Exemption 1 analysis, Plaintiff's prior disclosure claim is unfruitful. The Court, however, will proceed to examine the applicability of

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²¹ Section 798 makes it a crime for anyone to knowingly and willfully communicate[ ] . . . or otherwise make available to an unauthorized person, . . . in any manner prejudicial to the safety or interest of the United States . . . any classified information . . .

(3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes . . . .

18 U.S.C. § 798.

²² Section 6(a) of Public Law No. 86-36, provides that "(a) Except as provided in subsection (b) of this section, nothing in this Act or any other law . . . shall be construed to require the disclosure of . . . any function of the [NSA], or of any information with respect to the activities thereof ...." Section 6 of Public Law No. 86-36, reprinted at 50 U.S.C. 402 note.

²³ Section 403-3(c) provides in relevant part: "In the Director's capacity as head of the intelligence community, the Director shall . . . (6) protect intelligence sources and methods for unauthorized disclosure." 40 U.S.C. § 403-3(c) (as amended). The term "Director" refers to the Director of Central Intelligence.

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the advanced statutes to Defendant's "Glomar response" and Exemption 3 claim because of the differences between the mechanics of Exemption 1 and Exemption 3.

As stated under the Exemption 1 discussion, Plaintiff's request goes to the core purpose of the FOIA. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 775 (1989). The FOIA is focused "on the citizens' right to be informed about what their government is up to." Reporters Committee, 489 U.S. at 773. The Court has a statutory obligation to test the validity of the NSA's "Glomar response" and its Exemption 3 claim. "In other words, the court does not take on the role of a passive observer and accept as gospel an agency's assertion of an exemption. Rather, the court takes on an active role in determining whether the claimed exemption, which is serving as the basis for the 'Glomar response,' applies." McNamera v. United States Department of Justice, 974 F. Supp. 946, 955 (W.D. Tex. 1997); see Founding Church of Scientology v. NSA, 610 F.2d 824, 30, 833 & n. 80 (D.C. Cir. 1979).

In order to successfully invoke its "Glomar response" and Exemption 3, through the three statutes it advances, Defendant must establish a nexus between foreseeable prejudice to the safety or interests of the United States, see 18 U.S.C. § 798, or unauthorized disclosure of intelligence sources and methods, see 40 U.S.C. 403-3(c)(6), or disclosure of information regarding the NSA's activities, see Section 6(a), Pub. L. 86-36, and the disclosure of the existence or nonexistence of Iranian and

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Libyan message traffic between June 1, 1980 and June 10, 1996 and/or, if such messages do exist, the disclosure of such messages.

Section 798 of Title 18 of the United States Code and 403-3(c)(6) of Title 40 do not require a categorical determination of nondisclosure or justify a blanket exemption. However, a conservative or literal reading of Section 6(a), Pub. L. 86-36 would result in a finding that Defendant's "Glomar response" must be categorically upheld. But, as stated above, FOIA nondisclosure exemptions must be narrowly construed to fulfill the FOIA's broad goals. If the Court were to literally read Section 6(a), Pub. L. 86-36, no NSA decision to withhold information requested under the FOIA could ever be challenged and the NSA would be provided with a blank check for nondisclosure. See Founding Church of Scientology, 610 F.2d at 828-29. Such an interpretation of the exemption would gut the FOIA as it relates to the NSA and shroud the NSA in a veil of secrecy from the very people it serves and to whom it is accountable. Such an interpretation also would be in conflict with the Administration's and the Supreme Court's pro-democracy demand for government openness about its operations and performance of its statutory duties. See President's FOIA Memorandum supra; EPA v. Mink, 410 U.S. 73, 80 (1973); See also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Thus, the Court interprets Section 6(a) of Pub. L. 86-36 to prohibit disclosure of NSA activities that would negatively affect or defeat its ability to perform its statutory duties. Cf. Pollack v. Department of Justice,

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49 F.3d 115, 120 (4th Cir. 1995) (FOIA requests must not be so burdensome that they prohibit agencies effectively and efficiently performing their jobs and carrying out the daily business of the government.).

While the three statutes cited by Defendant may be relevant to its Exemption 3 claim, the NSA's affidavit does not adequately specify for summary judgment purposes the nexus between admitting or denying the existence of Iranian and Libyan message traffic from June 1, 1980 and June 10, 1996 (and/or disclosing any, some, or all such messages, if they exist,) and a foreseeable harm to the nation's interests or safety, or to the NSA' s intelligence sources or methods, or to the effective performance of the NSA's duties. See Founding Church of Scientology, 610 F.2d at 830. However, the Court does find that the public record is as developed as is possible without forcing the NSA to disclose what is at issue. Consequently, the Court requests that Defendant provide it, as it has offered to do, an in camera ex parte declaration or detailed affidavit explaining its reasons for its "Glomar response" and for nondisclosure of none of the Iranian and Libyan messages and translations from June 1, 1980 to June 10,1996, if they do exist. See Anderson v. Department of Health and Human Services, 907 F.2d 936, 942. (10th Cir. 1990).²⁴ The declaration of affidavit must be provided by the

_____________________

²⁴ As the Tenth Circuit has explained:

In order to fulfill its obligation to review de novo the agency's decision not to disclose materials sought under the FOIA, a district court has a variety of options. "The FOIA allows the

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Defendant to the Court within sixty days of the date of this opinion. The Court will stay its decision on Defendant's Motion for Summary Judgment (Exemption 3) until after it has heard or examined Defendant's explanation.

NOW, THEREFORE, IT IS ORDERED that sua sponte, Defendant is DEEMED by the Court to be the NSA, and not Lt. Gen. Kenneth A. Minihan. Future captions for this case should reflect this change.

IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment is DENIED without prejudice.

IT IS FURTHER ORDERED that Defendant's Motion to Dismiss Plaintiff Morales is GRANTED.

IT IS FURTHER ORDERED that, in regard to Defendant's Motion for Partial Dismissal and for Summary Judgment, Defendant's Motion for Partial Dismissal is DENIED and Defendant's Motion for Summary Judgment is STAYED pending an in

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district court flexibility in utilizing in camera review of the disputed documents, indexing, oral testimony, detailed affidavits, or alternative procedures to determine whether a sufficient factual basis exists for evaluating the correctness of the [agency] determination in each case." [If a Vaughn index or an affidavit is insufficient,] then the district court must utilize other procedures in order to develop an adequate factual basis for review of the agency action.

Anderson v. Department of Health and Human Services, 907 F.2d 936, 942 (10th Cir. 1990) (quoting DeSalvo v. Internal Revenue Service, 861 F.2d 1217, 1222 n.6 (10th Cir. 1988) (first alteration in Anderson)).

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camera ex parte declaration consistent herewith provided by Defendant to the Court within sixty (60) days of the date of this opinion.

IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment Based on Evidence from Admissions is DENIED as MOOT.

[Signature: Santiago E. Campos]

SENIOR UNITED STATES DISTRICT JUDGE

Counsel for Plaintiff Payne: William H. Payne, Pro Se, Albuquerque, New Mexico

Counsel for Plaintiff Morales: Arthur R. Morales, Pro Se, Albuquerque, New Mexico

Counsel for Defendant: Jan Elizabeth Mitchell, ASSISTANT U.S. ATTORNEY, Albuquerque, New Mexico

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[End]

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