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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE NEW YORK TIMES COMPANY and
:
CHARLIE SAVAGE,
:
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Plaintiffs,
:
:
-v:
:
NATIONAL SECURITY AGENCY,
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:
Defendant.
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KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 25, 2016

15-cv-2383 (KBF)
OPINION & ORDER

In this action, the newspaper the New York Times and one of its reporters,
Charlie Savage (collectively, the “New York Times” or “Times”) challenge three
redactions to two documents produced by the National Security Agency (the “NSA”
or “Agency”) in response to a Freedom of Information Act (“FOIA”) request. The
parties have cross-moved for summary judgment as to the propriety of these
redactions. (ECF Nos. 15 & 19.) For the reasons stated below, the NSA’s motion is
GRANTED and the New York Times’ motion is DENIED.
I.

FACTUAL BACKGROUND
A.

Procedural History

On January 12, 2015, the New York Times submitted a FOIA request to the
NSA pursuant to 5 U.S.C. § 552. (ECF No. 1 ¶¶ 1, 8.) The Times sought “copies of –
and declassification review of, as necessary – all NSA Inspector General Reports
related to” three topics: “the agency’s content collection activities under the FISA

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Amendments Act section 702 and the predecessor law, the Protect America Act;”
“bulk phone records collection activities under Section 215 of the Patriot Act (the
‘FISA Business Records’ program);” and “bulk Internet metadata collected under
the FISA pen register/trap and trace provision (the ‘FISA PR/TT’ program).” (Id. ¶
9; ECF No. 21 Exh. A.) The NSA did not provide a substantive response within 20
days as required by FOIA, and on March 31, 2015, the Times filed this action.
After the Agency answered the complaint (ECF No. 8), the parties jointly
agreed to a schedule under which the NSA would process and release all nonexempt responsive documents in three batches, on August 11, 2015, November 10,
2015, and February 10, 2016. (ECF No. 10.) The NSA engaged in an extensive
declassification process and released hundreds of pages of material, many of which
contained redactions. (ECF No. 20 at 2; ECF No. 13.) Following the three releases,
the New York Times challenged certain redactions, some of which the NSA agreed
were appropriate for publication in a supplemental release. (ECF No. 13.) The
Times and other media outlets have discerned important insights and published
numerous stories from the full roster of released documents. (ECF No. 20 at 3 &
nn. 3 & 4.)
B.

The Reports at Issue

The remaining conflict between the Times and the Agency concerns three
redactions in two NSA Inspector General Reports. The first report is five pages long
and titled “Report on the Special Study of NSA’s Purge of Pen Register and Trap
and Trace Bulk Metadata” (the “PR/TT Report”). (ECF No. 21 Exh. B.) The
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“Overview” section of the Report explains that it summarizes the Office of the NSA
Inspector General’s “special study of the Agency’s processes to destroy Pen Register
and Trap and Trace (PR/TT) bulk metadata from its declared systems, databases,
and backups before the authority expired on 9 December 2011.”1 (Id. at 1.)
The redaction the New York Times challenges is found on the first and
second pages of the Report, in a section titled “Background.” This section explains
that between July 2004 and December 2011 the NSA, “with the assistance of certain
U.S. telecommunications service providers, collected, processed, and analyzed
metadata from Internet communications to obtain foreign intelligence information.”
(Id.) It further states that “[i]n early 2011, the Signals Intelligence Directorate
(SID) conducted an examination of the NSA PR/TT program to assess its value,”
which “revealed that the PR/TT program was not producing valuable foreign
intelligence information after the program had been reinitiated.” (Id.) The Signals
Intelligence Directorate then requested that the Director of the NSA terminate the
PR/TT program and “identified several limitations that contributed to the program’s
inability to meet expectations.” (Id.) A list of four such limitations follows. One,
the fact that “[o]ther authorities can satisfy certain foreign intelligence
requirements that the PR/TT program was designed to meet,” is not redacted; the
other three are redacted in their entirety. (Id. at 1-2.)

1

The Sherman declaration, discussed further below, provides further background information about the PR/TT
program, through which the government acquired metadata, such as the “to” and “from” lines in an email and the
date and time it was sent, but not its contents. (ECF No. 17 ¶ 19.)

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The second report relevant to the instant motion is forty-six pages long and
titled “Report on the Special Study: Assessment of Management Controls Over FAA
§702” (the “§ 702 Controls Report”). (ECF No. 21 Exh. C.) A cover sheet explains
that the Report summarizes the Office of the NSA Inspector General’s “special
study of management controls that ensure compliance with Section 702 of the
Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA §702)
and the Targeting and Minimization Procedures associated with the 2011
Certifications.”2 (Id.)
The first redaction the New York Times challenges in the § 702 Controls
Report is on the first page, in the section titled “Background.” (Id. at 1.) Under the
subheading “Requirements of FAA §702,” the Report states that “[t]he target of
collection must be a non-U.S. person (USP) who is reasonably believed to be located
outside the United States and possesses, is expected to receive, and/or is likely to
communicate foreign intelligence”. (Id.) The next several words are redacted and
followed by the words “FAA § 702 Certifications:” (Id.) The paragraph beginning on
the next line is redacted in its entirety; it is this redaction the Times challenges.
The second redaction at issue in the § 702 Controls Report comes on the
twentieth page, in the section titled “FINDINGS AND RECOMMENDATIONS.”

2

The Sherman declaration, discussed further below, provides further background information about the NSA’s
activities pursuant to § 702, which is codified at 50 U.S.C. § 1881a. (ECF No. 17 ¶¶ 31-36.) Section 702 authorizes
the Attorney General and the Director of National Intelligence to jointly authorize the targeting of non-United States
persons reasonably believed to be outside the United States for foreign intelligence information. Each instance of
this targeting requires that the Foreign Intelligence Surveillance Court first approve of an annual certification and
affidavit filed by the Attorney General and the Director of National Intelligence which sets forth how the targeting
will comply with limiting and minimization requirements. See 50 U.S.C. § 1881a(g).

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(Id. at 13.) This section encompasses six separate findings and eleven related
recommendations. (Id. at 13-37.) Although five of the findings and ten of the
recommendations are at least partially disclosed, the second finding and associated
third recommendation are in effect entirely redacted. (Id. at 19-20.) Only a portion
of the title of the finding, “Certain FAA §702 Selectors,” one subheading stating
“Verification that Authorized Selectors Are on Collection,” and a reference to the
title, but not content, of a 2008 Office of the Inspector General report are not
redacted from the finding. (Id. at 19.) Within the recommendation, with one
exception, only headings such as “ACTION” and “Management Response,” but not
the content following, is not redacted. (Id. at 20.) The exception is the final
comment from the Inspector General, which reads “Planned action satisfies the
intent of the recommendation.” (Id.) The Times challenges the redaction of the
recommendation.
C.

The Sherman Declaration

In support of its motion for summary judgment, the NSA submitted a
declaration from David J. Sherman, the Agency’s Associated Director for Policy and
Records and the official responsible for processing FOIA requests for NSA records.
(ECF No. 17 ¶ 1.) Sherman is “a TOP SECRET original classification authority
(‘OCA’) pursuant to Section 1.3 of Executive Order (‘E.O.’) 13526.” (Id. ¶ 2.) He was
responsible for asserting FOIA exemptions on the materials disclosed in this case.
(Id.)

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Sherman’s declaration sets out the NSA’s reasoning for the challenged
redactions.3 According to the declaration, the redacted information falls within
three of the categories of information which can be properly classified under E.O.
13526: § 1.4(c), which covers “intelligence activities (including covert action),
intelligence sources or methods, or cryptology;” § 1.4(d), which covers “foreign
relations or foreign activities of the United States, including confidential sources;”
and § 1.4(g), which covers “vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the national
security.” (Id. ¶ 11.) Sherman further declared that the information was not
classified for an improper purpose, such as concealing violations of law or
preventing embarrassment, and that the withheld information is more specific than
any previously released information on the same topics. (Id. ¶¶ 13-14.) In a
separate section, Sherman attests that no portion of the challenged redactions could
have been reasonably segregated and publicized; while some information viewed in
isolation could be considered unclassified, if disclosed in the contexts of these
reports even these seemingly mundane portions could reveal classified information.
(Id. ¶¶ 44-45.)
The declaration then addresses the specific redactions at issue in this
litigation. As to the PR/TT Report, Sherman explains that while one of the four

3

The NSA argues that each of the challenged redactions are covered by both FOIA Exemption 1, 5 U.S.C. §
552(b)(1), and FOIA Exemption 3, id. § 552(b)(3). (ECF Nos. 16 & 17.) As discussed below, the Court finds that
the NSA acted properly pursuant to Exemption 1. Because “courts may uphold agency action under one exemption
without considering the applicability of the other,” the Court limits its discussion to the facts relevant to Exemption
1. Wilner v. NSA, 592 F.3d 60, 72 (2d Cir. 2009) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862-63 (D.C.
Cir. 2009)).

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operational limitations identified by the Signals Intelligence Directorate had been
previously disclosed and was thus not redacted, the remaining three were currently
and properly classified at the Top Secret level, meaning their release could
reasonably be expected to cause exceptionally grave damage to the national
security. (Id. ¶¶ 20-21.)
According to Sherman, disclosure of these limitations would reveal the
capabilities and limitations of the PR/TT program, thereby providing the country’s
adversaries with insight into both the likelihood that prior communications were
collected and the efficacy of particular countermeasures to protect current
communications. (Id. ¶ 22.) The limitations also include operational details, such
as technical means and analytic tools and methodologies, which have not been
disclosed and which could alert adversaries to the government’s awareness of
specific countermeasures and tradecraft. (Id. ¶¶ 23-24.) Although the PR/TT
program has been discontinued, Sherman’s declaration explains, the NSA still
collects certain electronic metadata pursuant to other authorities, and revealing the
success or lack thereof of the PR/TT program would thus risk exposing ongoing
efforts. (Id. ¶ 25.) Finally, information about the NSA’s technological capabilities
might assist other countries’ efforts to develop their own metadata collection
program to target the United States. (Id. ¶ 26.)
As to the § 702 Controls Report, the declaration first states that the redacted
information on page one “pertains to the number and categories of certifications
made pursuant to Section 702 of the FAA.” (Id. ¶ 31.) Sherman attests that this
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information is currently and properly classified at the Secret / No Foreign Nationals
level, meaning its release could reasonably be expected to cause serious damage to
the national security. (Id. ¶ 37.) According to the declaration, disclosure of the
number and categories of certifications would reveal the NSA’s ability to collect
intelligence or lack thereof and thereby provide adversaries with insight into
whether § 702 targeting had been potentially applied to their communications and
how they could tailor their communications to escape such targeting. (Id. ¶¶ 38-39.)
As to the redacted recommendation information on page twenty of the § 702
Controls Report, Sherman attests that “[t]his information consists of technical
aspects and procedures of NSA’s collections under Section 702 of the FAA,” and is
currently and properly classified Top Secret. (Id. ¶ 42.) The declaration explains
that the redacted information contains “granular detail” which, if revealed, would
indicate important information about “the sophistication of NSA’s SIGINT system”
and aid efforts to implement countermeasures. (Id.)
II.

LEGAL PRINCIPLES
A.

Summary Judgment Standard

Summary judgment is warranted if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). FOIA litigation is typically resolved on summary judgment. Carney
v. Dep’t of Justice, 19 F.3d 807, 812-13 (2d Cir. 1994). When an agency withholds
material under a FOIA exemption, “[t]he agency asserting the exemption bears the
burden of proof, and all doubts as to the applicability of the exemption must be
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resolved in favor of disclosure.” New York Times Co. v. Dep’t of Justice, 756 F.3d
100, 112 (2d Cir. 2014) (quoting Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 69 (2d Cir.
2009)). This burden can be met through the submission of “affidavits or
declarations giving reasonably detailed explanations why any withheld documents
fall within an exemption.” Id. (alteration omitted) (quoting ACLU v. Dep’t of
Justice, 681 F.3d 61, 69 (2d Cir. 2012)). Such declarations are “accorded a
presumption of good faith.” Carney, 19 F.3d at 812. If the affidavits describe the
justification for nondisclosure logically and in sufficient detail “and are not
controverted by either contrary evidence in the record nor by evidence of agency bad
faith,” summary judgment for the agency is appropriate. Larson v. Dep’t of State,
565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 772, 776 (D.C.
Cir. 1984)). If one exemption is upheld, the Court need not consider the
applicability of another. Wilner, 592 F.3d at 72.
B.

FOIA Exemption 1

The FOIA statute operates generally as a requirement that agencies disclose
information upon request. See 5. U.S.C. § 552(a) (“Each agency shall make
available to the public information as follows:”); id. § 552(a)(3)(A). The same statute
also lists a number of categories of materials to which “[t]his section does not
apply.” Id. § 552(b). The first exemption, and the one relevant to the instant
matter,4 carves out matters that are “(A) specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national

4

See supra note 3.

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defense or foreign policy and (B) are in fact properly classified pursuant to such
Executive order.” Id. § 552(b)(1).
The current standard for classification is set forth in Executive Order 13526,
75 Fed. Reg. 707 (Dec. 29, 2009). Section 1.1 of that order lists four requirements
for the classification of national security information: (1) “an original classification
authority” must classify the information; (2) the information must be “owned by,
produced by or for, or … under the control of the United States Government;” (3) the
information must “fall[] within one or more of [eight] categories of information”
listed elsewhere in the order; and (4) the original classification authority must
“determine[] that the unauthorized disclosure of the information reasonably could
be expected to result in damage to the national security,” which damage the
authority can identify and describe. “Original classification authorities” include
government officials delegated this authority in accordance with procedures and
limitations set forth in E.O. 13526. Id. § 1.3(a)(3). The eight relevant categories of
information include, as relevant to this case, information that pertains to
“intelligence activities (including covert action), intelligence sources or methods, or
cryptology;” “foreign relations or foreign activities of the United States, including
confidential sources;” or “vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the national
security.” Id. § 1.4. Information can never be properly classified “in order to: (1)
conceal violations of law, inefficiency, or administrative error; (2) prevent
embarrassment to a person, organization, or agency; (3) restrain competition; or (4)
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prevent or delay the release of information that does not require protection in the
interest of the national security.” Id. § 1.7.
Even where a FOIA exemption applies, the withholding must be narrow, such
that “[a]ny reasonably segregable portion of a record shall be provided … after
deletion of the portions which are exempt.” 5 U.S.C. § 552(b). This provision does
not require disclosure of non-exempt material rendered meaningless by surrounding
deletions, see Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 178 (2d Cir.
2014), nor does it require disclosure of facially mundane material that is classified
because it could, in context, reveal national security information and pose a harm.
See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009).
FOIA Exemption 1 is, like the other exemptions, to be construed narrowly.
Dep’t of Air Force v. Rose, 425 U.S. 352, 366 (1976); New York Times Co. v. Dep’t of
Justice, 756 F.3d 100, 111-12 (2d Cir. 2014). At the same time, however, courts
must pay careful attention to “the relative competencies of the executive and
judiciary” in the arena of national security. Wilner, 592 F.3d at 76. Courts do so by
giving not only a presumption of good faith but in fact “substantial weight” to
agencies’ affidavits regarding national security. ACLU v. Dep’t of Justice, 681 F.3d
61, 69 (2d Cir. 2012). Thus, rather than undertaking a detailed, searching review of
an agency’s opinions regarding the harm to the country posed by disclosure of
withheld information, courts should instead ask whether the government’s
arguments for nondisclosure are plausible and logical and, if so, uphold the

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application of the exemption. ACLU v. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir.
2011); Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
III.

ANALYSIS
As discussed above, the New York Times challenges three separate

redactions in the two Inspector General reports at issue. The Court addresses each
of the redactions independently and then addresses the Times’ argument that the
Court should conduct in camera review of the reports prior to rendering a decision.
A.

The Redaction in the PR/TT Report

Associate Director Sherman provided a detailed explanation for the
challenged redaction of three operational limitations in the PR/TT Report. He
specifically affirmed that the information is currently and properly classified Top
Secret, and explained that the withheld portion of the report includes details about
the National Security Agency’s capabilities and limitations which, if revealed, would
tend to inform adversaries about both the likelihood that specific communications
were captured in the past and the efficacy of certain countermeasures. Sherman’s
declaration also states that the withheld information includes operational details
about the technical means and analytic methods by which the NSA collected
metadata, and that revealing these details would, among other things, both reveal
the government’s knowledge of specific tradecraft practiced by adversaries and
assist adversaries’ efforts to develop their own metadata collections programs
targeting the United States.

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The Sherman declaration thus contains a detailed, logical, and plausible
explanation for why the challenged redaction in the PR/TT Report fits within FOIA
Exemption 1. Although the Times advances several arguments regarding the
strength of this explanation, none succeed in portraying it as illogical or
implausible.
First, the Times points out that the PR/TT program that is at issue in the
report was discontinued nearly five years ago; indeed, the focus of the Report is the
Agency’s purge of recorded bulk metadata following the expiration of the relevant
authority. However, the fact that the specific program at issue is no longer
operational does not answer the question of whether the redacted information is
properly classified. The Sherman declaration specifically notes that the NSA
remains authorized to acquire certain other metadata pursuant to different
programs. It is certainly logical to limit information about the capabilities and
vulnerabilities of a discontinued program where doing so could reveal the
capabilities and vulnerabilities of ongoing programs. See Amnesty Int’l USA v.
CIA, 728 F. Supp. 2d 479, 507-08 (S.D.N.Y. 2010) (upholding FOIA Exemption 1
redaction of information about discontinued practices).
The Times also argues that the NSA’s disclosures to date on topics similar to
the withheld limitations cut against the claims of harm in the Sherman declaration.
It points out that the undisclosed portions of the PR/TT Report indicate that the
program was not meeting expectations and that the Agency could meet certain of
the goals of the PR/TT program through alternative means. These points do not,
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however, undercut the explanation the Agency has offered. The Sherman
declaration does not describe the harms that would follow from any disclosure of the
Agency’s bulk metadata program, but instead focuses on the specific operational
and historical details contained in the three redacted limitations. The entire
statutory structure of FOIA and its exemptions anticipates a line-drawing exercise
and the disclosures to date are not of the kind that would suggest no identifiable
harm could come from further disclosure. See, e.g., Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 835 (D.C. Cir. 2001).
The final point of discrete dispute as to the redactions in the PR/TT Report
relates to the level of generality of the redacted limitations, which can be
imperfectly inferred by reference to the non-redacted third limitation. The New
York Times argues that this limitation is at a sufficiently high level of generality to
suggest that disclosure of the other limitations would not convey actionable
information. The NSA disputes the characterization. The passage reads, in its
entirety:
3. Other authorities can satisfy certain foreign intelligence
requirements that the PR/TT program was designed to meet. The
Supplemental Procedures Governing Communications Metadata
Analysis (SPCMA), which SID implemented widely in late 2010, allows
NSA to call-chain from, to, or through U.S. person selectors in Signals
Intelligence collection obtained under a number of authorities. In
addition, notwithstanding restrictions stemming from the FISC’s
recent concerns regarding upstream collection, FAA §702 has emerged
as another critical source for collection of Internet communications of
foreign terrorists. Thus, SPCMA and FAA §702 assist in the
identification of terrorists communicating with individuals within the
United States, which addresses one of the original reasons for
establishing the PR/TT program in 2004.
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Taking this non-redacted passage as imperfectly representative of the level of
detail contained in the redacted passage, they are not so general that the harm
anticipated in the Sherman declaration becomes illogical or implausible. The
disclosed passage describes how certain NSA programs developed over time to
capture particular forms of information and meet particular goals. Although these
are not highly technical details, they are certainly at a level that provides insight
and clarification about NSA practices and capabilities, precisely the kind of damage
Sherman invokes in his explanation that the redacted limitations are properly
classified at the Top Secret level. The Court thus does not agree that the redacted
information is only a high-level summary which could not logically harm the
country if released.
As a result of the above, the Court concludes that the NSA’s explanation for
its continued redaction of three operational limitations in the PR/TT Report is
logical, plausible, and contains the requisite reasonable detail to carry the Agency’s
burden of proving the applicability of FOIA Exemption 1.
B.

The First Redaction in the § 702 Controls Report

Associate Director Sherman’s declaration also provided a detailed and logical
explanation for the NSA’s decision to withhold the paragraph on the first page of
the § 702 Controls Report. This information, according to Sherman, “pertains to the
number and categories of certifications made pursuant to Section 702 of the FAA.”
The NSA explains that revealing such information would reveal important details
about the scope and limitation of the Agency’s § 702 program which would both
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provide insight as to the likelihood that prior communications were intercepted and
as to potential manners of tailoring future communications in order to evade
searches under this ongoing authority.
The New York Times challenges the adequacy of this explanation on multiple
grounds. It argues that a list of the number and categories of § 702 certifications is
too inexact to pose the threat Sherman identifies, analogizing the disclosure of such
information to “the FBI report[ing] on the number of wiretap applications and the
types of investigations in which they were used.” (ECF No. 20 at 17.) The NSA
persuasively responds that, in fact, publicizing the fact that the FBI did not use
wiretaps to investigate particular forms of crime would in fact pose a threat, and
that the same logic applies to the categories of § 702 certifications at issue.
Similarly, the number of targets investigated under § 702 authority, both at any one
time and in trends over time, could logically and plausibly inform adversaries of the
likelihood that past communications had been, and future communications would
be, targeted.
Another challenge the Times advances is to the breadth of the redaction. The
Times argues that it is unlikely that the entire redacted paragraph only contains
the number and category of certifications. In the Court’s view, there is little basis
for this hypothesis. The PR/TT and § 702 Controls Reports are more consistent
with a good faith effort to disclose non-classified information. Although certain
sections (like the finding and recommendation discussed below) are redacted almost
in their entirety, the more prevalent pattern is the redaction of particular sentences
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and words, rather than entire paragraphs. In light of that practice on the Agency’s
part, the Court does not agree that there is a credible basis to believe that the
redacted paragraph contains more than Sherman indicates in his declaration.
The New York Times pursues a related argument when it suggests that there
is reason to suspect that the redacted paragraph contains the NSA’s legal analysis
of § 702, and as such constitutes “working law.” See Caplan v. Bureau of Alcohol,
Tobacco & Firearms, 587 F.2d 544, 548 (2d Cir. 1978). Setting aside the fact that
working law doctrine is a limitation on FOIA Exemption 5, which is not at issue, see
Brennan Ctr. v. Dep’t of Justice, 697 F.3d 184, 195 (2d Cir. 2012), there is simply no
basis to believe that the redacted paragraph contains such information. The
Sherman declaration does not mention legal analysis, and the NSA clarified in a
sur-reply that “the withheld information is not legal analysis.” (ECF No. 28 at 1.)
Moreover, the context of the redaction is consistent with the redaction covering only
the number and categories of certifications. The line immediately before the
redaction, “FAA §702 Certifications:” ends with a colon. So too does the paragraph
that follows the redaction, and that colon is followed by a bulleted list of categories
of content found in the certifications. The context of the redaction is thus more
consistent with the NSA’s description of the redacted paragraph, which could
naturally follow the phrase “FAA §702 Certifications:” than with the Times’
description, which would not as naturally fit.
As a result of the above, the Court concludes that the NSA’s explanation for
its continued redaction of a paragraph on page one of the § 702 Controls Report is
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logical, plausible, and contains the requisite reasonable detail to carry the Agency’s
burden of proving the applicability of FOIA Exemption 1.
C.

The Second Redaction in the § 702 Controls Report

With regard to the final challenged redaction, on page 20 of the § 702
Controls Report, Associate Director Sherman’s declaration presents an explanation
for the Agency’s view that the information is currently and properly classified Top
Secret. According to Sherman, the redacted information in Recommendation 3
consists of technical aspects and procedures of NSA’s collections under § 702. The
declaration further states that the redacted information contains “granular detail”
which, if disclosed, would publicize the sophistication of the NSA’s efforts and aid
adversaries’ efforts to evade collection.
The New York Times argues that the proffered explanation for the redaction
is inadequate in light of two related facts: first, that the redacted recommendation
is one of eleven, all the others of which have been at least partially, if not entirely,
disclosed; and second, that the challenged redaction is effectively total, rather than
segregating out some limited information which could be disclosed. In the Times’
view, the Sherman declarations explanations relating to Recommendation 3 were
too vague and conclusory and failed to address the questions raised by these
observations of the redaction’s context.
As the Times recognizes, the same facts can be subject to competing
interpretations. The redaction of only one of eleven recommendations could be
evidence of a judicious application or redactions or could raise questions as to why
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the eleventh was so much more dangerous to disclose than the other ten.
Sherman’s declaration offers an answer: only this recommendation contains
granular technical details about improving collection procedures and methods.
That explanation is entitled to a presumption of good faith, and the Times does not
proffer any evidence that contradicts it.
The explanation that Recommendation 3 is categorically different from the
other ten recommendations in the § 702 Controls Report is also bolstered by the
redactions to Finding 2, which Recommendation 3 addresses. As is the case for the
other ten recommendations, a majority of each of the other five findings is disclosed.
As is the case for Recommendation 3, Finding 2 is almost entirely redacted.
Redaction of both the problem and the attempt to fix it is consistent with Sherman’s
statement that Recommendation 3 concerns technical aspects and procedures that
would provide insight into the NSA’s capabilities and limitations.
As a result of the above, the Court concludes that the NSA’s explanation for
its continued redaction of Recommendation 3 on page 20 of the § 702 Controls
Report is logical, plausible, and contains the requisite reasonable detail to carry the
Agency’s burden of proving the applicability of FOIA Exemption 1.
D.

In Camera Review

Finally, the New York Times argues that rather than granting summary
judgment to the NSA on the basis of the Sherman declaration and the non-redacted
portions of the two reports, the Court should conduct an in camera review of the full
reports. FOIA provides courts with the option to conduct such review. 5 U.S.C. §
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552(a)(4)(B). In 1974 Congress amended FOIA and, among other things,
“specifically extended the language of FOIA’s provision for in camera inspection to
encompass Exemption 1.” Halpern v. FBI, 181 F.3d 279, 291 (2d Cir. 1999).
In this Circuit, if a supporting affidavit or declaration submitted by an
agency to explain withheld information is sufficiently specific, logical, and plausible,
“the district court should be able to rule on the appropriateness of the redactions
without conducting an in camera review of the redacted materials.” Id. at 287; see
also Local 3, Int’l Brotherhood of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d
Cir. 1988) (“In camera review is considered the exception, not the rule.”). The
Second Circuit’s admonition that, absent an affirmative reason to doubt the
government’s affidavit, “the district court should restrain its discretion to order in
camera review,” Halpern, 181 F.3d at 292, is consistent with the oft-stated policy
that it is “unwise to undertake searching judicial review” of executive explanations
of national security risks and harms. Wilner v. NSA, 592 F.3d 60, 76 (2d Cir. 2009)
(quoting Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir.
2003)).
In this case, there is no evidence that contradicts Associate Director
Sherman’s declaration. Nor does the declaration confine itself to boilerplate
recitations of the statutory requirements; instead, it is quite detailed. There is also
no evidence from which one could infer bad faith on the part of the Agency; to the
contrary, the Agency has turned over documents which have led to published
stories, have turned over supplemental documents following discussions with the
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Times after the initial disclosures, and is not even alleged to have conducted an
inadequate search for records.
The Sherman declaration articulated a reasonably detailed explanation for
the redactions which was both logical and plausible. It did so in a way that served
its functional purpose by permitting the New York Times to meaningfully, and
fairly specifically, challenge the proffered explanations. As the Times put it in its
briefing, “the court’s task in cases involving national security is to consider both
whether the affidavits are sufficiently detailed and whether the explanation offered
for any given redaction is ‘logical and plausible.’” (ECF No. 20 at 11.) Under the
facts of this case, that task can be, and properly is, carried out without in camera
review of classified materials.
IV.

CONCLUSION
For the reasons stated above, the National Security Agency’s motion for

summary judgment is GRANTED and the New York Times Company and Charlie
Savage’s motion for summary judgment is DENIED. The Clerk of Court is directed
to close the motions at docket numbers 15 and 19 and to terminate this matter.
SO ORDERED.
Dated:

New York, New York
August 25, 2016

______________________________________
KATHERINE B. FORREST
United States District Judge
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