Case Detail
| Case Title | AGILITY PUBLIC WAREHOUSING COMPANY K.S.C. v. NATIONAL SECURITY AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2014cv00946 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2014-06-04 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2015-07-10 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Beryl A. Howell | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | AGILITY PUBLIC WAREHOUSING COMPANY K.S.C. also known as AGILITY also known as PUBLIC WAREHOUSING COMPANY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Agility Public Warehousing Company, a Kuwaiti logistics company, had several Defense Department contracts to provide food to U.S. troops in Iraq, Kuwait, Qatar, and Jordan from 2003 through 2010. Based on the revelations about the extent of surveillance by the National Security Agency, PWC submitted a FOIA request to the agency for any records pertaining to surveillance of their communications between 2003 through 2010. The agency acknowledged receipt of the request, but after the time limit for responding expired, PWC wrote to the NSA appeals officer to appeal the failure to respond. The agency acknowledged receipt of PWC's appeal, but took no further action. PWC then filed suit. Complaint issues: Failure to respond within statutory time limit | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | NATIONAL SECURITY AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Opinion/Order [28] FOIA Project Annotation: In affirming that metadata collected from telephone calls as part of the National Security Agency's surveillance program is protected by Exemption 1 (national security) and Exemption 3 (other statutes), Judge Beryl Howell has made it clear that both exemptions provide ample protection for such data. She has also added a new wrinkle that serves to expand the accepted bases for withholding the data, finding that the Foreign Surveillance Court Orders allowing the NSA to conduct the surveillance act as a court-ordered prohibition on its disclosure under FOIA. The case before Howell provided a somewhat more plausible claim than the basis for several of the cases that have previously reached district court in which the plaintiff starts with the assumption that because the NSA collects all electronic data it must have everybody's individual data as a result. While that premise formed the basis of this case, the FOIA litigation was brought by Agility Public Warehousing Company, a Kuwaiti logistics company that provided food to U.S. troops stationed in Iraq, Kuwait, Qatar and Jordan from 2003 through 2010 as a part of a series of contracts with the Defense Logistics Agency. The company was indicted in 2009 in the Northern District of Georgia on charges of conspiracy to defraud the United States. Agility requested NSA data on itself, alleging that it had communicated from Kuwait with its U.S.-based attorneys at Skadden, Arps, Slate, Meagher & Flom. The law firm was a customer of Verizon Business Network Services, which had been publicly identified as one of the carriers subject to specific FISC Orders. The agency searched its Office of General Counsel, its acquisition organization and its logistics organization for any records pertaining to the contracts or litigation mentioned in Agility's FOIA request. The agency indicated that it could neither confirm nor deny the existence of any records related to its surveillance program. Agility challenged the agency's Glomar response, arguing both that the information did not fall under Exemption 1 or Exemption 3 and also that the existence of the data had been publicly acknowledged. Howell found that disclosure of the information would risk revealing sources and methods. She agreed with the agency that "such information would permit adversaries to change their communications behavior or otherwise 'alert targets that their existing means of communications are potentially safe.' As a result, disclosure 'could reasonably be expected to cause exceptionally grave and irreparable harm to the national security by providing. . .adversaries a road map that instructs them on which communication modes or personnel remain safer or are successfully defeating NSA's capabilities.'" Agility contended that admitting the agency had records on Agility would not harm the agency because it was publicly known the agency was engaged in a bulk collection program. Howell pointed out that the same argument had been rejected in another case involving NSA data collection, Competitive Enterprise Institute v. NSA 2015 WL 151465 (D.D.C. 2015). There, Howell explained, the court indicated that "were the agency required to confirm or deny the existence of such records for specific individuals, it would begin to sketch the contours of the program, including, for example, which provider turned over data and whether the data for those providers is complete." She noted that "just as in Competitive Enterprise Institute, the Court finds the NSA's explanation regarding the classification and potential national harm to be both 'logical' and 'plausible'" Having found that Exemption 1 covered the records, she indicated that Section 102A(i)(1) of the National Security Act of 1947, which was cited under Exemption 3, also provided complete coverage. Turning to the issue of public acknowledgement, Agility argued that two publicly acknowledged FISC Orders showed that the NSA had collected data from Verizon Business Networks Services. Howell indicated that "the plaintiff argues, at a minimum, the NSA has acknowledged the existence of records relating to its communications sent through Verizon Business Networks between April 25 and July 19, 2013, and, at a maximum, has acknowledged the existence of records relating to communications sent through Verizon Business Network Services and other providers since at least May 2006." Relying again on the Competitive Enterprise Institute decision, Howell observed that "the court concluded that the 'sources do not give any indication that the government collects metadata for all U.S. phone customers or even the subject of all Verizon Wireless users. As such, they do not show that the government has the specific records they seek.' The court's analysis turned on whether NSA had acknowledged the participation of a service provider in the collection program." Agility pointed out that the government had admitted collecting data from Verizon Business Network Services. But Howell indicated that "the plaintiff is correct, but only with respect to those documents obtained as a result of the officially acknowledged Secondary Order, i.e., the telephony metadata collected from Verizon Business Network Services between April 25, 2013 and July 19, 2013." She observed that "with respect to other telephone service providers and other periods of time, the plaintiff has not pointed to any disclosures documenting the specific telephone service providers that participated in the program and during what periods of time. Such imprecision will not suffice to overcome the NSA's Glomar response." Agility asserted that it was logical to conclude that the NSA's surveillance program was much broader than the limited FISC Order. But Howell indicated that "logical deductions may not substitute for official acknowledgments, however." Having found a discrete subset of data collected from Verizon Business Network Services had been publicly acknowledged and was not covered by a Glomar response, Howell looked at whether that data could be properly withheld. Here, she turned to Morgan v. Dept of Justice, 923 F.2d 195 (D.C. Cir. 1991), a case in which the D.C. Circuit indicated that a court order sealing records could serve as a prohibition on disclosure only if one of the purposes of the order was to prohibit public disclosure. She pointed out that "a review of the Morgan factors reveals that the NSA has no discretion to disclose the requested documents and its withholding in the present case was proper." She observed that "the Primary [FISC] Order permits the agency to access metadata records only in certain defined circumstances," including access "for purposes of obtaining foreign intelligence information." She indicated that the uses of the data permitted by the FISC Order did not allow "the NSA the discretion to access the metadata for purposes of complying with the plaintiff's FOIA request." She explained that "to permit FOIA plaintiffs (and thereby the public at large) access to all the collected metadata would be to undermine the careful architecture erected by the FISC and enshrined in its Primary Order." She added that "the materials obtained pursuant to the telephony metadata program may be accessed only in the most limited fashion, and not for purposes of the FOIA."
Issues: Determination - Glomar response, Public domain, Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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