UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD R. BLAKE, JR., et al., : : Plaintiffs, : Civil Action No.: 21-1085 (RC) : v. : Re Document Nos.: 12, 14 : NATIONAL SECURITY AGENCY, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ CROSS- MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiffs

Richard Blake, Jr., Samuel Blake, Mary Blake, and Defendant National Security Agency

(“NSA”). Plaintiffs seek intelligence information relating to the 1985 disappearance and death

of Nicholas Blake—Richard and Samuel’s brother and Mary’s son. Blake Decl. ¶¶ 1–3, ECF

No. 13-2. Nicholas Blake was a U.S. citizen who traveled to Guatemala as a journalist to cover

the country’s civil war. Id. ¶ 2. He, along with a companion, disappeared while last seen on a

hiking trip in rural Guatemala in 1985. Ex. A to Blake Decl., Chronology of Blake Family

Investigation at 1–2, ECF No. 13-2. Their bodies were discovered and identified many years

later, and an investigation revealed that they had both been shot to death. Pls.’ Statement

Material Facts ¶ 3 (“Pls.’ Facts”), ECF No. 13-1. Plaintiffs believe that the Guatemalan Army

and Civil Patrols in the region were responsible for Nicholas Blake’s death. Id. ¶ 4. Decades

later, Plaintiffs have still been unsuccessful in obtaining the truth of what happened to Nicholas Blake. Blake Decl. ¶ 9. They now turn to the NSA for answers, seeking release of radio-

telephone communications that the NSA allegedly intercepted in that region and time. The NSA

claimed FOIA Exemptions 1 and 3 and refused to confirm or deny the existence of such

information. Both parties moved for summary judgment. For the reasons explained below, the

Court does not have sufficient information to grant the NSA’s Glomar response under

Exemption 1. But the NSA has adequately shown that its Glomar response is justified under

Exemption 3. Therefore, the Court will grant the NSA’s motion for summary judgment and

deny Plaintiffs’ motion for summary judgment.

II. BACKGROUND

On August 23, 2016, Plaintiffs submitted a FOIA request to the NSA seeking records

“related to the disappearance and death of Nicholas Blake, a United States citizen, in Guatemala

in 1985.” Def.’s Statement Material Facts ¶ 1 (“Def.’s Facts”), ECF No. 12-1; Ex. A to Stevens

Decl. (“Request Letter”), ECF No. 12-2. Plaintiffs requested, among other things, “digital or

audio recordings, or paper or electronically-stored transcriptions of such recordings in the

Agency’s possession, of [Guatemalan Army] communications during the period March 20

through April 7, 1985, in any way relating to Nicholas Blake and Griffin Davis . . . .” Request

Letter at 2. The letter also provided key words and additional context for the search. Id. at 3–5.

The NSA responded by refusing to confirm “the fact of the existence or non-existence of the

materials” and cited FOIA Exemptions 1 and 3 as grounds for its refusal. Ex. B to Stevens Decl.

Plaintiffs filed an administrative appeal on October 24, 2016. Ex. C to Stevens Decl. Despite

further inquiries from Plaintiffs on the status of their appeal, their case remained on appeal with

2 the NSA for over four years. Exs. D, E, F to Stevens Decl.1 Plaintiffs finally brought suit in this

Court on April 20, 2021. Compl., ECF No. 1. Less than a month later, the NSA’s appeals

authority informed Plaintiffs that it “determined that NSA’s response was correct.” Ex. G to

Stevens Decl. Both parties subsequently moved for summary judgment in this case. ECF Nos.

12, 14. In support of its motion, the NSA submitted declarations from Sara K. Stevens, NSA’s

Deputy Chief of Policy, Information, Performance, and Exports, and Linda M. Kiyosaki, NSA’s

Chief of Enterprise Guidance Services. See Stevens Decl. ¶ 1, ECF No. 12-2; Kiyosaki

Decl. ¶ 1, ECF No. 16-1.

III. LEGAL STANDARD

The Freedom of Information Act is meant “to pierce the veil of administrative secrecy

and to open agency action to the light of public scrutiny.” U.S. Dep’t of State v. Ray,

(1991) (quoting Dep’t of Air Force v. Rose,

(1976)). It “directs that

‘each agency, upon any request for records . . . shall make the records promptly available to any

person’ unless the requested records fall within one of the statute’s nine exemptions.” Loving v.

Dep’t of Def.,

(D.C. Cir. 2008) (quoting

(a)(3)(a)). “Consistent

with the Act’s goal of broad disclosure,” those exemptions should be “given a narrow compass.”

U.S. Dep’t of Just. v. Tax Analysts,

(1989). “The agency bears the burden of

establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Wash. v. U.S.

Dep’t of Just. (“CREW”),

(D.C. Cir. 2014).

1 Plaintiffs emphasize the length of this delay but do not argue that the NSA acted in bad faith or that the delay alters the FOIA analysis. Pls.’ Cross-Mot. at 3–4. The NSA argues that its delay is only relevant to whether this Court has jurisdiction, which it does not contest. See Def.’s Reply Support Mot. Summ. J. and Opp’n Pls.’ Cross-Mot. Summ. J. (“Def.’s Reply”) at 2, ECF No. 16 (citing Citizens for Resp. & Ethics in Washington v. FEC,

(D.C. Cir. 2013)). The Court is satisfied that it has jurisdiction. See Citizens,

;

(a)(6)(C)(i).

3 Because FOIA cases do not ordinarily involve disputed facts, they “are typically and

appropriately decided on motions for summary judgment.” Moore v. Bush,

(D.D.C. 2009) (citations omitted). Summary judgment is warranted “if the movant shows that

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). In assessing whether the movant has met that burden, a

court “must view the evidence in the light most favorable to the nonmoving party, draw all

reasonable inferences in his favor, and eschew making credibility determinations or weighing the

evidence.” Montgomery v. Chao,

(D.C. Cir. 2008) (citations omitted). “This

burden does not shift even when the requester files a cross-motion for summary judgment

because ‘the Government ultimately has the onus of proving that the documents are exempt from

disclosure . . . .’” Hardy v. ATF,

(D.D.C. 2017) (brackets omitted)

(quoting Pub. Citizen Health Research Grp. v. FDA,

, 904–05 (D.C. Cir. 1999)).

Even if a FOIA exemption applies, an agency cannot withhold information unless it also

“reasonably foresees that disclosure would harm an interest protected by” the exemption.

(a)(8)(A)(i)(I); see Reps. Comm. for Freedom of the Press v. FBI,

, 369

(D.C. Cir. 2021) (explaining the FOIA Improvement Act of 2016’s “foreseeable harm”

requirement).

Instead of searching for and withholding exempt records, “an agency may issue a Glomar

response, i.e., refuse to confirm or deny the existence or nonexistence of responsive records if

the particular FOIA exemption at issue would itself preclude the acknowledgement of such

documents.” Elec. Priv. Info. Ctr. v. NSA,

(D.C. Cir. 2012) (citing Wolf v.

4 CIA,

(D.C. Cir. 2007)).2 In considering a Glomar response, courts apply the

“general exemption review standards established in non-Glomar cases.” Knight First Amend.

Inst. at Columbia Univ. v. CIA,

, 813 (D.C. Cir. 2021) (quoting Wolf,

). “An agency thus bears the burden to sustain a Glomar response.”

(citing

(a)(4)(B)).

“[W]hen a Glomar response touches upon issues of national security—as is the case

here—courts must give agency decisions substantial deference, for judges lack the expertise

necessary to second-guess such agency opinions in the typical national-security FOIA case.”

Shapiro v. CIA,

(D.D.C. 2016) (cleaned up). Thus, courts “consistently

defer[] to executive affidavits predicting harm to national security, and have found it unwise to

undertake searching judicial review.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,

(D.C. Cir. 2003). “Courts must sustain an agency’s Glomar response predicated

on a FOIA exemption when the justification for nondisclosure appears logical or plausible.”

Shapiro,

(cleaned up).

IV. ANALYSIS

The NSA invokes two FOIA Exemptions—1 and 3—as grounds for its Glomar response.

As described in more detail below, the Court first concludes that the NSA has not waived its

Glomar response because Plaintiffs have provided no evidence that the NSA has previously

disclosed the existence of the requested information. Turning to the merits, the Court finds that

the NSA has not provided sufficient detail to show that that the requested information remains

classified under Exemption 1. Nonetheless, the NSA has provided sufficient information to

The term “Glomar response” is derived from a ship, the Glomar Explorer, at issue in a 2

FOIA case, Phillippi v. CIA,

(D.C. Cir. 1976). See Knight, 11 F.4th at 813.

5 satisfy Exemption 3 because the National Security Act protects the agency from disclosing its

intelligence functions and activities here. Because Exemption 3 provides a separate and

independent ground for the NSA’s Glomar response, the Court will grant the NSA summary

judgment. See Larson v. Dep’t of State,

, 862–63 (D.C. Cir. 2009) (“FOIA

Exemptions 1 and 3 are independent; agencies may invoke the exemptions independently and

courts may uphold agency action under one exemption without considering the applicability of

the other.”); see also ACLU, 628 F.3d at 619 n.2.

A. Prior Disclosure

The Court will first consider whether the NSA has waived its Glomar response. “An

agency waives any right to make a Glomar response by disclosing whether responsive records

exist.” Knight, 11 F.4th at 815 (citation omitted). “Once an agency makes such an

acknowledgment, ‘there is no value in a Glomar response. The secret is out.’” Id. (quoting

Leopold v. CIA,

, 167 n.5 (D.C. Cir. 2021)). “To establish official

acknowledgment, a plaintiff must identify information in the public domain that (1) matches the

information requested, (2) is as specific, and (3) has ‘been made public through an official and

documented disclosure.’”

(quoting Fitzgibbon v. CIA,

(D.C. Cir. 1990)).

This test imposes a “substantial burden” on Plaintiffs to meet. All Party Parliamentary Grp. on

Extraordinary Rendition v. U.S. Dep’t of Def.,

(D.D.C. 2015); see also

Am. Ctr. for L. & Just. v. NSA,

, 123 (D.D.C. 2020) (“The message is clear:

hold agencies to their official disclosures but be precise, lest courts force them to release

sensitive information they have not actually disclosed.”).

Here, Plaintiffs cannot show that prior disclosure occurred because they have not

supplied any evidence that the NSA acknowledged conducting surveillance in the region and

6 time at issue. They claim that it is “well established” that the NSA was a “careful observer[] of

developments in the brutal and bloody Guatemalan Civil War.” Pls.’ Mem. Opp’n Def.’s Mot.

Summ. J. and Support Cross-Mot. (“Pls.’ Cross-Mot.”) at 7, ECF No. 13-3. Plaintiffs aver that a

“two-volume report” published by George Washington University extensively discusses the

“‘sources and methods’ of surveillance operations . . . throughout the region.”

at 7–8. They

assert the U.S. government’s radio-telephone interceptions were “widely reported in the media”

and “discussed extensively in the academic literature.”

; Blake Decl. ¶¶ 7–8.

Plaintiffs claim to possess (but did not attach) “U.S. Government documents” such as

“diplomatic cables” of U.S. monitoring of “Guatemalan Army unit radio-telephone and radio

communications.” Pls.’ Cross-Mot. at 15. Finally, Plaintiffs conducted telephone interviews of

two academic experts and an ex-NSA employee and received “[e]xpert opinions” apparently

confirming the NSA’s surveillance activities in the region and time. Blake Decl. ¶¶ 7–8. Under

the prior disclosure test, however, none of these sources of information constitutes an official

acknowledgement by the NSA. See Knight,11 F.4th at 816 (“We have also rejected attempts to

establish an agency’s official acknowledgement based on disclosures by Congress . . . the

media . . . [and] the agency’s former employees . . . .” (citing cases)); see also id. at 817–18

(“[O]ne intelligence agency cannot officially acknowledge a matter for another . . . .”). In short,

there is no evidence that the NSA has itself acknowledged or disclosed this information. The

Court thus turns to the merits of the NSA’s Glomar response.3

3 The NSA construed the Request Letter as a request for “intelligence records.” Def.’s Facts ¶ 2. Plaintiffs agree with the NSA’s interpretation. Pls.’ Facts ¶ A; Def.’s Reply at 1. Accordingly, the Court’s analysis will be similarly limited in scope. Cf. Shapiro,

(requiring the NSA to address non-intelligence records when the requester argued that request was broadly worded to encompass non-intelligence records).

7 B. Exemption 1

Exemption 1 exempts records “specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national defense or foreign policy and [which]

are in fact properly classified pursuant to such Executive order.”

(b)(1)(A); see

also Larson,

. The applicable classification order, Executive Order (“E.O.”) No.

13,526,

(Dec. 29, 2009), sets forth “both substantive and procedural criteria for

classification.” Jud. Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2013). It

sets forth, in relevant part, the following conditions: (1) an original classification authority

classifies the information; (2) the information is under the control of the United States

Government; (3) the information falls under one or more of the categories of information listed

in § 1.4 of the order; and (4) the classification authority determines that the unauthorized

disclosure of the information reasonably could be expected to result in damage to the national

security, and the authority is able to identify or describe the damage. E.O. 13,526 § 1.1; see

Competitive Enter. Inst. v. Dep’t of Treasury,

(D.D.C. 2018).

Here, the parties’ dispute over Exemption 1 primarily centers on whether the NSA’s

Glomar response rests on information that is still classified.4 Specifically, Plaintiffs claim that

the requested records are thirty-six years old and therefore subject to automatic declassification

under E.O. 13,526. Pls.’ Cross-Mot. at 14. Section 3.3 of E.O. 13,526 provides that records

4 Plaintiffs also argue that Exemption 1 can never justify a Glomar response because E.O. 13,526 does not shield the fact of whether a document exists. Pls.’ Cross-Mot. at 13. But E.O. 13,526 expressly contemplates the use of Glomar responses, see § 3.6(a) (“An agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order of its predecessors.”), and courts routinely permit this practice, see, e.g., Knight, 11 F.4th at 821 (“The district court correctly concluded that the intelligence agencies’ Glomar responses were valid under Exemption 1.”).

8 which “are more than 25 years old and . . . have been determined to have permanent historical

value . . . shall be automatically declassified” “except as provided” by exemption. E.O. 13,526

§ 3.3; see James Madison Project v. CIA, No. 18-cv-03112,

, at *1 (D.D.C.

Sept. 23, 2020) (“Executive Order 13526 provides for automatic declassification, except in

certain circumstances.”).5 Section 3.3(b) then provides a list of nine exemptions to automatic

declassification. Notably, the NSA failed to identify which, if any, of § 3.3(b)’s nine

declassification exemptions applied. See Pls.’ Cross-Mot. at 13 n.7; Def.’s Mem. Support Def.’s

Mot. Summ. J. (“Def.’s Mot.”) at 4, ECF No. 12 (citing Stevens Decl. ¶¶ 22–26); cf. Hall v. CIA,

(D.D.C. 2009) (“The records at issue here may well fall into one or

more of these [nine] categories, but the CIA has not made such an assertion.”).

Instead, the NSA claims declassification exemptions from a different source. As it turns

out, § 5.3(b)(2) of the same executive order authorizes an entity called the Interagency Security

Classification Appeals Panel (“ISCAP”) to “approve, deny, or amend agency exemptions from

automatic declassification as provided in section 3.3 of this order[.]” E.O. 13,526 § 5.3(b)(2).

The NSA proffers two declassification exemptions from an internal manual called the

NSA/CSS’s 2018 Declassification Guide, which the ISCAP approved. Kiyosaki Decl. ¶¶ 19–20,

ECF No. 16-1; cf. DiBacco v. U.S. Dep’t of the Army,

(D.D.C. 2017)

(noting that the CIA Declassification Guide had been approved according to E.O. 13,526), aff’d,

(D.C. Cir. 2019). These two exemptions are: (1) “[i]nformation revealing specific

sources and methods used by NSA/CSS to collect, and/or process SIGINT and that are currently

5 Neither party briefed whether the requested information “ha[s] been determined to have permanent historical value.” E.O. 13,526 § 3.3. Because the NSA “bears the burden to sustain a Glomar response,” Knight, 11 F.4th at 813, and the NSA does not contest this point, the Court will only analyze the twenty-five-year requirement.

9 used today” and (2) “[i]nformation revealing NSA/CSS targeting, collecting, or processing

diplomatic or leadership communications of specific foreign country/countries, international

organization, group of individuals, or individuals after 31 December 1946.” Kiyosaki Decl.

¶ 21–22; Stevens Decl. ¶ 24–25.

At this juncture, the Court lacks enough information to allow the NSA to invoke these

two exemptions under the Declassification Guide. With respect to the Guide’s first exemption,

Plaintiffs claim that the 36-year old radio-telephone communications they seek is “substantially

obsolete” and therefore not “currently used” by the NSA. Pls.’ Cross-Mot. at 15; Pls.’ Reply

Def.’s Opp’n Cross-Mot. Summ. J. (“Pls.’ Reply”) at 5–7, ECF No. 17. The NSA did not

engage with this point. Pls.’ Reply at 6–7; Kiyosaki Decl. ¶ 23 n.6 (arguing that Glomar

response was appropriate “[r]egardless of the specific technology” in use today). Accordingly,

the NSA has not adequately explained why it is eligible to rely on the Guide’s first exemption.

With respect to the Declassification Guide’s second exemption, the NSA claims that

communications between military officials constitutes “leadership communications,” but makes

no attempt to define this term or explain its reach. Kiyosaki Decl. ¶ 23. For example, are

communications involving a low-level sergeant or mere civilians—which the request

encompasses—also “leadership communications”? Pls. Reply at 7. Therefore, the NSA has not

adequately explained why it is eligible to rely on the Guide’s second exemption, either.

The NSA’s briefing proffers yet one more basis to exempt information from automatic

declassification.6 According to the NSA, in 2014, the ISCAP approved “two file series

6 This new argument was raised in Ms. Kiyosaki’s supplemental declaration in support of the NSA’s combined reply and opposition brief. Kiyosaki Decl. ¶¶ 25–27. Even if the NSA did not forfeit this argument, see Conservation Force v. Jewell,

, 204 n.4 (D.D.C. 2016), it is inadequate for the reasons described in this paragraph.

10 exemptions for NSA records” that exempted “NSA SIGINT Product and SIGINT Cryptanalysis

Methodologies . . . from automatic declassification.” Kiyosaki Decl. ¶¶ 25–27. The NSA claims

that the “summaries of raw data” that Plaintiffs request “would be specific to NSA SIGINT

products” and therefore “would be exempt from automatic declassification under NSA’s file-

series exemptions.” Id. ¶ 27. Treating the NSA’s representation with “substantial deference,”

Shapiro,

, the Court nonetheless finds this explanation inadequate. For

instance, it is unclear whether the file-series exemptions, assuming they apply in this context,

also exempt the “raw data” and any other intelligence information that the request seeks. See

Kiyosaki Decl. ¶ 27 (claiming that “raw data” Plaintiffs seek is covered by the Declassification

Guide’s two exemptions whereas “summaries of raw data” are covered by file-series

exemptions). Without more context, the Court is not prepared to rule for the NSA on this basis.

Therefore, the NSA has not currently satisfied any declassification exemption to show that the

requested information is still classified under Exemption 1. 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 judgment

on the basis of Exemption 3.

C. Exemption 3

Exemption 3 permits the withholding of records that are “specifically exempted from

disclosure by [a different] statute . . . if that statute . . . (i) requires that the matters be withheld

from the public in such a manner as to leave no discretion on the issue; or (ii) establishes

particular criteria for withholding or refers to particular types of matters to be withheld.”

(b)(3). Under binding Circuit precedent, the agency must: “[1] show that the statute

claimed is one of exemption as contemplated by Exemption 3 and [2] that the withheld material

11 falls within the statute.” Larson,

(citation omitted); see DiBacco v. U.S. Army,

(D.C. Cir. 2015) (“[T]he sole issue for decision is the existence of a relevant

statute and the inclusion of withheld material within the statute’s coverage.” (citation omitted)).

Moreover, information need not be classified to fall within Exemption 3’s protection. See

Gardels v. CIA,

(D.C. Cir. 1982) (Exemption 3 does not require “first

determining that the withheld information was properly classified under Exemption 1” because

“Exemption 3 is independent of Exemption 1 and may be invoked independently”); Afshar v.

Dep’t of State,

(D.C. Cir. 1983) (same).

Here, the NSA claims that its Glomar response is specifically exempted by three

statutes: (1) Section 6 of the National Security Act of 1959,

; (2)

; and (3) Section 102A(i) of the National Security Act of 1947,

. Kiyosaki

Decl. ¶¶ 35–37. “It is well established that each of these [three] statutes qualifies as an

Exemption 3 withholding statute . . . .” Willis v. NSA, No. 17-cv-2038,

, at *8

(D.D.C. Apr. 30, 2019) (citing DiBacco,

; Larson,

; Hayden v.

NSA,

, 1389–90 (D.C. Cir. 1979)). Thus, the only remaining question is whether

the withheld information falls within any of these statutes.

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 the disclosure of the organization or any function of the National Security Agency, or

any information with respect to the activities thereof . . . .”

(a). As this Circuit

has recognized, “[s]ection 6 . . . provides absolute protection.” Larson,

(citations omitted); see Linder v. NSA,

(D.C. Cir. 1996) (“The protection

afforded by [this section] is, by its very terms, absolute.”); Schaerr v. United States Dep’t of

F. Supp. 3d 99, 114 n.12 (D.D.C. 2020) (“The protections provided by

(a) . . . are absolute.” (citations omitted)). Furthermore, “NSA need not make a specific

showing of potential harm to national security in order to justify withholding information under

Section 6, because ‘Congress has already, in enacting the statute, decided that disclosure of NSA

activities is potentially harmful.’” Elec. Priv. Info. Ctr. v. NSA,

(D.C. Cir.

2012) (quoting Hayden,

).

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.” Def.’s Mot. at 5 (citing Stevens Decl.

¶ 38). The NSA elaborated that “[a]cknowledging the existence or nonexistence of responsive

records on particular individuals or organizations would provide [its] adversaries with critical

information about the capabilities and limitations of the NSA, such as the types of

communications that may be susceptible to NSA detection.” Stevens Decl. ¶ 28. “Over time, the

accumulation of these inferences would disclose the targets and capabilities, and therefore the

sources and methods, of NSA’s SIGINT activities and functions . . . .”

The Court finds that

the NSA’s explanation is plainly “logical or plausible.” Shapiro,

(internal

quotation marks and citation omitted); see People for the Am. Way Found. v. NSA,

(D.D.C. 2006) (“[T]here can be no doubt that the disclosure of SIGINT [material]

would reveal information concerning the activities of the agency . . . .” (quoting Linder,

)); Wilner v. NSA,

(2d Cir. 2009) (“[T]he very nature of their request—

which seeks records concerning whether . . . communications were monitored by the NSA—

13 establishes that any response would reveal ‘information with respect to the activities’ of the

NSA.”.7 Accordingly, summary judgment is warranted for the NSA.8

V. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motion for summary

judgment (ECF No. 12) and DENIES Plaintiffs’ cross-motion for summary judgment (ECF No.

14). An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: July 29, 2022 RUDOLPH CONTRERAS United States District Judge

Where, as here, one statute provides “ample support for the propriety of the NSA’s 7

invocation of Exemption 3,” the Court “need not opine about the sufficiency of . . . alternative bases.” Agility Pub. Warehousing Co. K.S.C. v. NSA,

, 329 n.7 (D.D.C. 2015); Knight First Amend. Inst. at Columbia Univ. v. CIA,

, 42 n.10 (D.D.C. 2020), aff’d,

(D.C. Cir. 2021). 8 Plaintiffs also claim that 22 U.S.C. § 2715a requires a response from the NSA. Pls.’ Cross-Mot. at 22–23. This statute provides that “it is in the national interests of the United States to provide information regarding the killing, abduction, torture, or other serious mistreatment of United States citizens abroad to . . . the families of victims of such crimes if they are United States citizens.” 22 U.S.C. § 2715a(a)(1). But the same statute limits disclosure by allowing it only “without jeopardizing sensitive sources and methods or other vital national security interests” and when “such disclosure is [not] specifically prohibited by law.” Id. § 2715a(c). At the very least, the information protected by Exemption 3 meets the latter limitation because it is by definition “specifically exempted from disclosure by statute.”

(b)(3); see

(a) (“[N]othing in this chapter or any other law . . . shall be construed to require . . . disclosure . . . .” (emphasis added)); cf. Linder v. Calero-Portocarrero,

(D.C. Cir. 2001) (observing that this provision “creates no enforceable rights on behalf of any party. It provides no cause of action. It is simply a general statement of policy”).

14