Nsa Vice Snowden Emails - Redacted

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, )
) Case No. 1:14-cv-0919-KBJ
Plaintiff, )
)
v. )
)
NATIONAL SECURITY AGENCY, )
)
Defendant. )
____________________________________)

DEFENDANTS STATEMENT OF MATERIAL FACTS
AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to LCvR 7(h), defendant, the National Security Agency (NSA), submits this
Statement of Material Facts as to Which There is No Genuine Dispute.
1. Plaintiff submitted a FOIA request to the NSA on April 8, 2014, seeking
disclosure of any and all emails written by former NSA contractor Edward Snowden in which
Mr. Snowden contacted agency officials through email to raise concerns about NSA programs.
See Compl. 12, Answer 12.
2. On June 23, 2014, the NSA responded to plaintiffs request by informing him
that, inter alia, his request has been processed under the provisions of the FOIA. A thorough
search of our files was conducted, but there are no documents indicating that Mr. Snowden
contacted agency officials to raise concerns about NSA programs. Answer 14; see also
Declaration of David J. Sherman 8.
3. As a courtesy, the NSA also provided plaintiff with an email Mr. Snowden had
sent to the NSA Office of General Counsel asking about the hierarchy of legal authorities
governing NSA activities. Sherman Decl. 8.
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4. That email did not raise concerns about NSA programs. Id.; see also Compl.
12, Answer 12.
5. Following unauthorized disclosures of classified information in June 2013, NSA
conducted a comprehensive investigation. Sherman Decl. 11.
6. This investigation included searches of any records where emails by Mr. Snowden
raising concerns about NSA programs would be expected to be found within the agency. Id.
16.
7. This investigation was conducted after Mr. Snowden had severed his contractor
relationship with the NSA. Id. 17.
8. As part of its comprehensive investigation, NSA searched all of Mr. Snowdens
email available on NSAs classified and unclassified systems, including sent and received email
from his inbox as well as email restored from back-up tapes. Sherman Decl. 11.
9. Any email written by Mr. Snowden to raise concerns about NSA programs
through official channels most likely would have been located in Mr. Snowdens email
account or back-up tapes of his emails. Id. 16.
10. The NSA also conducted additional searches in the agencys Office of General
Counsel, Office of the Inspector General, Office of the Director of Compliance, Signals
Intelligence Directorate Office of Oversight and Compliance, the NSA/CSS Threat Operations
Center where Mr. Snowden had worked in Hawaii, and NSA Associate Directorate for Security
and Counterintelligence (ADS&CI) for any emails by Mr. Snowden that raised concerns about
NSA programs. Id. 12-15.
11. The Office of General Counsel directed its staff to each search their individual
emails for email to or from Mr. Snowden. Id. 12.
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12. The Office of Inspector General conducted an advanced search of its records of
complaints and grievances seeking any contact from anyone with the last name Snowden. Id.
13. The Office of the Director of Compliance staff searched their official email,
contacts, and correspondence for any contacts from Mr. Snowden. Id.
14. The Signals Intelligence Directorate Office of Oversight and Compliance
personnel searched their official email accounts for any emails containing Mr. Snowdens name.
Id. 13.
15. The NSA/CSS Threat Operations Center personnel also searched their email
records for any email from Mr. Snowden. Id. 14.
16. The NSA Associate Directorate for Security and Counterintelligence
(ADS&CI) searched in several ways for emails from Mr. Snowden raising concerns about
NSA programs, including by reviewing notes of interviews of NSA affiliates who responded to a
June 10, 2013 message to everyone in the agency with an NSA email account asking anyone
who had contact with Mr. Snowden to report those contacts to ADS&CI. Id. 15.
17. These multiple searches did not identify any email by Mr. Snowden responsive to
plaintiffs request, that is, in which he raised concerns about NSA programs. Id. 12-15.
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Dated September 12, 2014 Respectfully submitted,
STUART F. DELERY
Assistant Attorney General

RONALD C. MACHEN
United States Attorney

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Steven Y. Bressler
STEVEN Y. BRESSLER
Senior Counsel
U.S. Department of Justice, Civil Division
Ben Franklin Station, P.O. Box 833
Washington, D.C. 20044
(202) 305-0167
Steven.Bressler@usdoj.gov

Counsel for Defendant


JASON LEOPOLD, )
Plaintiff, )
)
v. )
)
)
Defendant. )
____________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT

INTRODUCTION
Plaintiff in this Freedom of Information Act (FOIA) case, Jason Leopold, requested
that defendant, the National Security Agency (NSA), disclose to him any and all emails
written by former NSA contractor Edward Snowden in which Mr. Snowden contacted agency
officials through email to raise concerns about NSA programs. See Complaint 12. The NSA
responded to plaintiffs request by informing him that it conducted a thorough search of its files
but found no responsive records. See Answer 14.
Plaintiff challenges the sufficiency of the NSAs search for responsive documents. Any
such challenge is meritless, however. As set forth in the accompanying declaration of a senior
NSA official, David J. Sherman, the NSA conducted an extensive search reasonably calculated
to uncover any responsive records. Indeed, the NSA searched not only all of Mr. Snowdens
emails, including on back-up tapes, but also searched the files of every office that would have
received a responsive email, if one existed. The NSAs search more than meets the requirements
Case l:l4-cv-009l9-KBJ Document 8-l Filed 09/l2/l4 Page l of 8
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of FOIA, and the Court should, accordingly, grant defendants motion and enter summary
judgment for the NSA.
BACKGROUND
Plaintiff submitted a FOIA request to the NSA on April 8, 2014, seeking disclosure of
any and all emails written by former NSA contractor Edward Snowden in which Mr. Snowden
contacted agency officials through email to raise concerns about NSA programs. See Compl.
12 (quoting Apr. 8, 2014 FOIA req.), Answer 12. On June 23, 2014, the NSA responded to
plaintiffs request by informing him that, inter alia, his request has been processed under the
provisions of the FOIA. A thorough search of our files was conducted, but there are no
documents indicating that Mr. Snowden contacted agency officials to raise concerns about NSA
programs. Answer 14; see also Declaration of David J. Sherman 8. As a courtesy, the NSA
also provided plaintiff with an email Mr. Snowden had sent to the NSA Office of General
Counsel asking about the hierarchy of legal authorities governing NSA activities. Sherman Decl.
8; Exh. D to Sherman Decl. at 2. Because that email did not raise concerns about NSA
programs, it was not responsive to plaintiffs FOIA request. Id.; see also Compl. 12 (quoting
April 8, 2014 FOIA req.), Answer 14. Plaintiff had filed his Complaint initiating this civil
action on May 29, 2014, prior to receiving the NSAs response. See generally Compl.; see also
Compl. 14; Sherman Decl. 7.
ARGUMENT
I. Standard of Review
The Freedom of Information Act, 5 U.S.C. 552, requires agencies to release documents
responsive to a properly submitted request, except for those documents (or portions of
documents) subject to any of the statutory exemptions to the general disclosure obligation. See 5
Case l:l4-cv-009l9-KBJ Document 8-l Filed 09/l2/l4 Page 2 of 8
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U.S.C. 552(a)(3), (b)(1)-(b)(9). When a requester challenges the adequacy of an agencys
search, [i]n order to obtain summary judgment, the agency must show that it made a good faith
effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested. Oglesby v. Dept of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990). The Court may then grant summary judgment based on information provided
in [a] reasonably detailed affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials (if such records exist)
were searched. ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)
(quoting Oglesby, 920 F.2d at 68) (alteration in original); Meeropol v. Meese, 790 F.2d 942, 952
(D.C. Cir. 1986); Riccardi v. Dept of Justice, --- F. Supp. 2d ----, Civ. No. 12-1887-KBJ, 2014
WL 1254616, *3 (D.D.C. Mar. 27, 2014). Such agency affidavits attesting to a reasonable
search are afforded a presumption of good faith, and can be rebutted only with evidence that
the agency's search was not made in good faith. Riccardi, 2014 WL 1254616 at *3 (citations
omitted).
Reasonableness, not perfection, is therefore the Courts guiding principle in determining
the adequacy of a FOIA search. Id.; Campbell v. Dept of Justice, 164 F.3d 20, 27 (D.C. Cir.
1998). Where, as here, an agency does not locate records responsive to a FOIA request and the
requester challenges the search, the agency is entitled to summary judgment when it shows by
affidavit that its search was reasonable. See Oglesby, 920 F.2d at 68; Riccardi, 2014 WL
1254616 at *4; Concepcin v. FBI, 606 F. Supp. 2d 14, 30 (D.D.C. 2009).
II. The NSA is Entitled to Summary Judgment Because it Conducted a
Reasonable Search for Responsive Records

A senior NSA official, David J. Sherman, provides a detailed description of NSAs
search for responsive records in his attached declaration. As explained below and demonstrated
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by Mr. Shermans testimony, NSAs search was reasonable and meets the requirements of FOIA.
The Court should, accordingly, enter summary judgment for defendant.
As noted, an agency can show that it discharged its obligations under FOIA and is
entitled to summary judgment by submitting declarations that demonstrate that it has conducted
a search reasonably calculated to uncover all relevant documents. Weisberg v. Dept of Justice,
745 F.2d 1476, 1485 (D.C. Cir. 1984) (internal quotations and citations omitted). There is no
requirement that an agency search every record system. Oglesby, 920 F.2d at 68. Moreover, a
failure to uncover a responsive document does not render the search inadequate; the issue to be
resolved is not whether there might exist any . . . documents possibly responsive to the request,
but rather whether the search for those documents was adequate. Weisberg, 745 F.2d at 1485
(internal citation omitted); see also Meeropol, 790 F.2d at 952-53 (search is not presumed
unreasonable simply because it fails to produce all relevant material); Perry v. Block, 684 F.2d
121, 128 (D.C. Cir. 1982) (agency need not demonstrate that all responsive documents were
found and that no other relevant documents could possibly exist). Conducting a reasonable
search is a process that requires both systemic and case-specific exercises of discretion and
administrative judgment and expertise and is hardly an area in which the courts should attempt
to micro manage the executive branch. Schrecker v. Dept of Justice, 349 F.3d 657, 662 (D.C.
Cir. 2003) (quoting Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.
2002)).
In evaluating the adequacy of a search, courts accord agency affidavits a presumption of
good faith which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (internal quotation and citation omitted); see also Ground Saucer Watch, Inc. v. CIA,
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692 F.2d 770, 771 (D.C. Cir. 1981) (same). Declarations should be sufficiently detailed, but
[t]he standard . . . is not meticulous documentation [of] the details of an epic search. Tex.
Indep. Producers Legal Action Assn v. IRS, 605 F. Supp. 538, 547 (D.D.C. 1984) (quoting
Perry, 684 F.2d at 127). To establish the sufficiency of its search, the agencys affidavits
therefore need only explain the scope and method of the search in reasonable detail. Kidd v.
Dept of Justice, 362 F. Supp. 2d 291, 295 (D.D.C. 2005) (quoting Perry, 684 F.2d at 127). The
agency is not required to search every record system, but need only search those systems in
which it believes responsive records are likely to be located. W. Ctr. for Journalism v. IRS, 116
F. Supp. 2d 1, 9 (D.D.C. 2000); Roberts v. Dept of Justice, No. 92-1707, 1995 WL 356320, at *
1 (D.D.C. Jan. 29, 1993).
The NSAs search for responsive records here, and Mr. Shermans declaration describing
that search, easily meet these standards. Following the unauthorized disclosures of classified
information in June 2013, NSA conducted a comprehensive investigation. Sherman Decl.
11. As Mr. Sherman explains, this investigation included searches of any records where emails
by Mr. Snowden raising concerns about NSA programs would be expected to be found within
the agency. Moreover, it was conducted after Mr. Snowden had severed his contractor
relationship with the NSA. Id. 17; cf. Houghton v. Dept of State, 881 F. Supp. 2d 37 (D.D.C.
2012) (search was adequate where, inter alia, agency relied on fact that certain responsive emails
would have been uncovered by prior searches, if they existed); Roman v. NSA, 2012 WL 569747,
*6 (E.D.N.Y. Feb. 22, 2012) (in responding to new FOIA request on a topic, agency properly
relied on result of similar search conducted in response to earlier, more detailed FOIA request).
As part of its comprehensive investigation, NSA searched all of Mr. Snowdens email
available on NSAs classified and unclassified systems. Sherman Decl. 11. This included the
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sent, received, and deleted email, from Mr. Snowdens email account as well as email restored
from back-up tapes. Id. Any email written by Mr. Snowden to raise concerns about NSA
programs through official channels most likely would have been located in Mr. Snowdens
email account or back-up tapes of his emails. Id. 16. Nonetheless, the NSA went beyond
searching Mr. Snowdens sent, received, and deleted emails to also conduct searches in the
agencys Office of General Counsel, Office of the Inspector General, and Office of the Director
of Compliance for any emails by Mr. Snowden that raised concerns about NSA programs. Id.
12. The Office of General Counsel directed its staff to each search their individual emails for
email to or from Mr. Snowden. Id. The Office of Inspector General conducted an advanced
search of its records of complaints and grievances seeking any contact from anyone with the last
name Snowden. Id. And the Compliance staff searched their official email, contacts, and
correspondence for any contacts from Mr. Snowden. Id. These searches did not identify any
email by Mr. Snowden responsive to plaintiffs request, that is, in which he raised concerns
about NSA programs. Id.
The NSA searched other offices records, as well. Because the unauthorized disclosures
involved signals intelligence information, the Signals Intelligence Directorate Office of
Oversight and Compliance was also tasked to perform a search. Id. 13. Its personnel searched
their official email accounts using Mr. Snowdens name, but did not identify any email written
by Mr. Snowden in which he contacted agency officials to raise concerns about NSA programs.
Id. Likewise, the NSA/CSS Threat Operations Center where Mr. Snowden had worked in
Hawaii was tasked to search for any emails by Mr. Snowden raising concerns about NSA
programs. Id. 14. They also searched their email records for any email from Mr. Snowden, but
found none raising concerns about NSA programs. Id.
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Finally, the NSA Associate Directorate for Security and Counterintelligence
(ADS&CI) searched in several ways for emails from Mr. Snowden raising concerns about
NSA programs. Id. 15. Among other things, they reviewed notes of interviews of NSA
affiliates who responded to a June 10, 2013 message to everyone in the agency with an NSA
email account asking anyone who had contact with Mr. Snowden to report those contacts to
ADS&CI. Id. ADS&CI did not find any email, or indication of an email, written by Mr.
Snowden responsive to plaintiffs request. Id.
As Mr. Sherman has described in detail, the NSA thus searched Mr. Snowdens NSA
email account and its back-up tapes of that account where any email responsive to plaintiffs
FOIA request would likely be found. Id. 16. The NSA also searched the files of all offices
where such an email would have been received. See id. Accordingly, as set forth above and in
more detail in Mr. Shermans declaration filed herewith, the NSA made a good faith effort to
search for the records requested, and its methods were reasonably expected to produce the
information requested, Kidd, 362 F. Supp. 2d at 294 (internal quotations and citation omitted).
Mr. Shermans declaration provides in reasonable detail the scope and method of the search
conducted by the agency and it therefore suffice[s] to demonstrate compliance with FOIA.
See Perry, 684 F.2d at 127.
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CONCLUSION
Accordingly, for all of the foregoing reasons, the Court should grant the NSAs Motion
for Summary Judgment and enter judgment for defendant.
STUART F. DELERY

RONALD C. MACHEN


STEVEN Y. BRESSLER
Senior Counsel
(202) 305-0167



JASON LEOPOLD, )
Plaintiff, )
)
v. )
)
)
Defendant. )
____________________________________)

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Defendant, the National Security Agency (NSA), respectfully moves this Court to enter
summary judgment in this action for defendant pursuant to Federal Rule of Civil Procedure 56
and for the reasons set forth in the accompanying Memorandum of Points and Authorities.
STUART F. DELERY

RONALD C. MACHEN


STEVEN Y. BRESSLER
Senior Counsel
(202) 305-0167

Case l:l4-cv-009l9-KBJ Document 8 Filed 09/l2/l4 Page l of l


JASON LEOPOLD, )
Plaintiff, )
)
v. )
)
)
Defendant. )
____________________________________)

[PROPOSED] ORDER

Upon consideration of the motion by defendant, the National Security Agency (NSA),
for summary judgment in this action, the memoranda in support and opposition, and the entire
record herein, it is hereby ORDERED that defendants Motion is GRANTED. This case is
dismissed with prejudice. The Clerk is directed to enter judgment for defendant on a separate
paper pursuant to Fed. R. Civ. P. 58.

Dated ______________________

Hon. Ketanji Brown Jackson
United States District Judge
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