NSA FOIA Withholdings Challenge.pdf

NSA withheld documents 7, 11, 12, and 14-21 in full and document 28 in part pursuant to Exemption 5 of the FOIA. The Court denied Defendants' motion for summary judgment concerning these materials and invited Defendants to supplement their submissions with regard to these documents concerning Exemption 5 applicability. The Court upheld NSA's withholdings of documents withheld in full pursuant to Exemptions 1 and 3. This submission addresses only Exemption 5 in the context of these specified legal memoranda.

NSA Documents 11 and 12 were withheld in full, and the Court noted that Defendants cannot satisfy their burden that Exemption 5 applies to these two documents. It is understood that NSD will continue to justify the applicability of the Attorney-Client and Deliberative Process Privileges under FOIA Exemption 5 to NSA Documents 11 and 12, providing such information in a supplemental declaration separate and apart from the instant submission.

NSA also asserted Attorney-Client Privilege regarding NSA Documents 7, 14, 15, 16, 17, 18, 19, 20, 21, and 28. With respect to these materials, it was explained that these documents "have not since been used to publicly justify NSA actions or expressly adopted as Agency policy." The Court was satisfied that these documents are protected by attorney-client privilege, but denied Defendants' motion for summary judgment on Exemption 5, as it could not determine whether these documents contain working law or have not been adopted.

NSA Document 7 is a legal memorandum to a Deputy General Counsel of NSA written by a senior NSA intelligence law attorney concerning a classified NSA SIGINT activity. The memorandum was provided to this Deputy General Counsel in order to provide updated information concerning past legal advice regarding the parameters of certain classified SIGINT activity.

NSA Document 14 is a legal memorandum written by a senior NSA intelligence law attorney for NSA's former Signals Intelligence Directorate (SID) concerning classified SIGINT activities and reflects legal advice concerning a range of options to be considered by decisionmakers.

NSA Document 15 is a legal memorandum written by a senior NSA intelligence law attorney for the Director of SID concerning classified NSA activities and is informational in nature. It does not reflect a decision to engage in a particular course of action, but rather constitutes recommendations from the attorney to the SID.

NSA Document 16 is a legal memorandum written by a senior NSA intelligence law attorney providing legal advice to the SID concerning classified activities undertaken pursuant to EO 12333 and reflects non-binding, attorney guidance.

NSA Document 17 is a legal memorandum written by a senior NSA intelligence law attorney for the Director of SID concerning audits of SIGINT activities undertaken pursuant to EO 12333. The memorandum constitutes recommendations and analysis provided by the senior attorney in response to a request for legal advice.

NSA Document 18 is a legal memorandum written by a senior NSA intelligence law attorney for NSA senior leadership concerning the protection of US Person information under EO 12333 and related regulations. The memorandum presents multiple points of consideration for leadership in its analysis, and reflects the attorney's legal interpretation of various aspects of the questions presented.

NSA Document 19 is a legal memorandum written by a senior NSA intelligence law attorney for the SID concerning the protection of US Person information during classified SIGINT activities undertaken pursuant to EO 12333. The memorandum contains legal conclusions concerning these issues and reflects recommendations to decisionmakers.

NSA Document 20 is a legal memorandum written by a senior NSA intelligence law attorney for the SID concerning querying data collected pursuant to EO 12333.