Case Detail

FOIA Project Annotation: Judge Rudolph Contreras has ruled that while the National Security Agency had not shown that it could withhold surveillance photos that might relate on the whereabouts of Nicholas Blake, a journalist who disappeared in Guatemala in 1985, under Exemption 1 (national security) the agency has shown that it can withhold all potentially responsive records under Exemption 3 (other statutes), specifically, the National Security Act of 1959 and the National Security Act of 1947. The case was brought by Robert Blake, Jr. and Samuel Blake, Nicolas Blake's brothers, and Mary Blake, Nicholas' mother. Nicholas traveled to Guatemala in 1985 as a journalist to cover the country's civil war. He, along with a companion, disappeared on a hiking trip in rural Guatemala in 1985. Their bodies were discovered and identified years later, and an investigation concluded that they had been shot to death. The Blakes believe that the Guatemalan Army and Civil Patrols in the region were responsible for Nicholas Blake's death. The Blakes filed a FOIA request with the NSA seeking the release of radio-telephone communications that the NSA allegedly intercepted in that region and time. The NSA invoked a Glomar response, neither confirming nor denying the existence of records, citing both Exemption 1 and Exemption 3 as the basis for its claim. Contreras found that the NSA had failed to justify its Glomar response under Exemption 1, but because he decided that its Glomar response under Exemption 3 was justified, he granted summary judgment to the agency on that basis. The Blakes argued that they had shown that the NSA had disclosed relevant information previously. Their sources included studies by the National Security Archive, diplomatic cables, and interviews with academic and NSA experts. Contreras noted that "under the prior disclosure test, however, none of these sources of information constitutes an official acknowledgment by the NSA. In short, there is no evidence that the NSA has itself acknowledged or disclosed this information." Contreras then found that the NSA has not shown that it had appropriate exemptions from declassification to explain why the records were not automatically declassified. After reviewing and rejecting the agency's claims for continuing to withhold relevant classified information, Contreras observed that "without more context, the Court is not prepared to rule for the NSA on this basis. Therefore, the NSA has not currently satisfied any of the declassification exemptions to show that the requested information is still classified under Exemption 1." He pointed out that "ordinarily, the Court would consider giving the NSA another chance to explain the basis for its Glomar response in more detail. That is unnecessary here, however, because the NSA is independently entitled to summary judgement on the basis of Exemption 3." He indicated that "the NSA's Glomar response falls squarely within Section 6 of the National Security Act of 1959. Section 6 provides that 'nothing in this chapter or any other law. . .shall be construed to require disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof. . .'" Contreras noted that "here, the NSA has explained that 'its signals intelligence activities and functions, and its intelligence sources and methods, would be revealed if it were to confirm or deny the existence of information responsive to plaintiffs' FOIA request."
Issues: Determination - Glomar response, Exemption 1 - Properly classified, Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2021-04-20	1	COMPLAINT against NATIONAL SECURITY AGENCY ( Filing fee $ 402 receipt number ADCDC-8388603) filed by RICHARD R BLAKE, JR, MARY BLAKE, SAMUEL BLAKE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Civil Cover Sheet, # 7 Summons, # 8 Summons, # 9 Summons)(Schneebaum, Steven) (Entered: 04/20/2021)
2021-04-20	2	NOTICE of Appearance by Cynthia Lynn McCann on behalf of All Plaintiffs (McCann, Cynthia) (Entered: 04/20/2021)
2021-04-21		Case Assigned to Judge Rudolph Contreras. (adh, ) (Entered: 04/21/2021)
2021-04-21	3	SUMMONS (3) Issued Electronically as to NATIONAL SECURITY AGENCY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 04/21/2021)
2021-05-26	4	NOTICE of Appearance by Marsha Wellknown Yee on behalf of NATIONAL SECURITY AGENCY (Yee, Marsha) (Entered: 05/26/2021)
2021-05-26	5	NOTICE of Consent to Assignment to Magistrate Judge by NATIONAL SECURITY AGENCY (Yee, Marsha) (Entered: 05/26/2021)
2021-06-03	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL SECURITY AGENCY served on 5/21/2021 (Schneebaum, Steven) (Entered: 06/03/2021)
2021-06-03	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/24/2021. (Schneebaum, Steven) (Entered: 06/03/2021)
2021-06-03	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/24/2021. Answer due for ALL FEDERAL DEFENDANTS by 6/23/2021. (Schneebaum, Steven) (Entered: 06/03/2021)
2021-06-03	9	AMENDED COMPLAINT against NATIONAL SECURITY AGENCY filed by RICHARD R. BLAKE, JR, MARY BLAKE, SAMUEL BLAKE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Schneebaum, Steven) (Entered: 06/03/2021)
2021-06-23	10	ANSWER to 9 Amended Complaint, by NATIONAL SECURITY AGENCY.(Yee, Marsha) (Entered: 06/23/2021)
2021-06-24		MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and jointly submit a proposed briefing schedule by July 8, 2021. SO ORDERED. Signed by Judge Rudolph Contreras on 6/24/2021. (lcrc3) (Entered: 06/24/2021)
2021-06-24		Set/Reset Deadlines: Proposed Briefing Schedule due by 7/8/2021. (tj) (Entered: 06/24/2021)
2021-07-08	11	PROPOSED BRIEFING SCHEDULE (JOINT) by NATIONAL SECURITY AGENCY. (Yee, Marsha) (Entered: 07/08/2021)
2021-07-12		MINUTE ORDER: Upon consideration of 11 the parties' Joint Proposed Briefing Schedule, it is hereby ORDERED that the following schedule shall govern further proceedings in this case: Defendant will file its motion for summary judgment on or before September 16, 2021; Plaintiffs will file their combined opposition to Defendants motion for summary judgment and any cross-motion for summary judgment on or before October 15, 2021; Defendant will file its reply in further support of its motion for summary judgment and opposition to any cross-motion for summary judgment on or before November 4, 2021; and Plaintiffs will file any reply in further support of any cross-motion for summary judgment on or before December 3, 2021. SO ORDERED. Signed by Judge Rudolph Contreras on 7/12/2021. (lcrc3) (Entered: 07/12/2021)
2021-09-16	12	MOTION for Summary Judgment by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Facts, # 2 Stevens Decl., # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 09/16/2021)
2021-10-15	13	Memorandum in opposition to re 12 MOTION for Summary Judgment and Cross-Motion filed by MARY BLAKE, RICHARD R. BLAKE, JR, SAMUEL BLAKE. (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Memorandum in Support, # 4 Text of Proposed Order)(Schneebaum, Steven) (Entered: 10/15/2021)
2021-10-15	14	CROSS MOTION for Summary Judgment by MARY BLAKE, RICHARD R. BLAKE, JR, SAMUEL BLAKE. (See Docket Entry 13 to view document. (ztth) (Entered: 10/20/2021)
2021-11-04	15	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Kiyosaki Decl., # 2 Def.'s Resps. to Pls.' SMF, # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 11/04/2021)
2021-11-04	16	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Kiyosaki Decl., # 2 Def.'s Resps. to Pls.' SMF, # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 11/04/2021)
2021-11-18	17	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by MARY BLAKE, RICHARD R. BLAKE, JR, SAMUEL BLAKE. (Schneebaum, Steven) (Entered: 11/18/2021)
2022-07-29	18	ORDER GRANTING 12 Defendant's Motion for Summary Judgment and DENYING 14 Plaintiffs' Cross-Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 7-29-2022. (lcrc3) (Entered: 07/29/2022)
2022-07-29	19	MEMORANDUM OPINION GRANTING 12 Defendant's Motion for Summary Judgment and DENYING 14 Plaintiffs' Cross-Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 7-29-2022. (lcrc3) (Entered: 07/29/2022)
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