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Hetznecker v. National Security Agency

United States District Court, E.D. Pennsylvania

August 23, 2017



          Schiller, J.

         In the fall of 2011, demonstrators descended on downtown Philadelphia, rallying around the belief that an elitist “1%” exploited the economy at the expense of the “99%.” The protestors patterned themselves after a similar group in New York City, Occupy Wall Street, and the Occupy Philly movement was born. During one of the many marches throughout Occupy Philly's seven week lifespan, police arrested a number of the demonstrators. Paul Hetznecker represented the Occupy Philly members in a lawsuit brought against the City of Philadelphia stemming from those arrests.[1]

         Concerned that federal authorities illegally spied on the Occupy Philly movement, Hetznecker requested documents under the Freedom of Information Act (“FOIA”) from the Federal Bureau of Investigation (“FBI”), the National Security Agency (“NSA”), and the Central Intelligence Agency (“CIA”). The FBI provided seven pages of redacted documents, while the NSA and CIA denied the requests and issued Glomar responses. Hetznecker sued. Defendants moved for summary judgment, citing various exemptions to FOIA and, in the case of the NSA and CIA, the previously issued Glomar responses. To assist its decision on the motion for summary judgment, the Court ordered in camera review of unredacted documents from the FBI and Vaughn Indices from the NSA and CIA.

         After conducting in camera review, the Court finds that the FBI conducted an adequate search and appropriately redacted the resulting documents, and that the NSA and CIA properly issued Glomar responses. Accordingly, the Court will grant Defendants' motion for summary judgment.

         I. BACKGROUND

         Hetznecker mailed similar FOIA requests to the FBI, NSA, and CIA related to federal involvement with the Occupy Philly movement. (Decl. David M. Hardy Ex. A; Decl. David J. Sherman Ex. A; Decl. Antoinette B. Shiner Ex. A.) Specifically, Hetznecker sought documents pertaining to “the Occupy Philly Movement, as well as Occupy encampments in cities around the country.” (Decl. David M. Hardy Ex. A.) This was the only reference to a nationwide search. (Id.) Hetznecker's request also sought communications and government and law enforcement responses to the Occupy Philly Movement and the Occupy Philly encampments. (Id.) The request was made on behalf of the “general public's right to know.” (Id.)

         Having reviewed Hetznecker's request, the FBI conducted a search resulting in seven pages of documents. (Answer ¶ 18.) The FBI produced the seven pages of documents with redactions. (Id.) The NSA issued a “Glomar response, ”[2] which means that the agency could neither confirm nor deny whether it had records responsive to Hetznecker's request and that the existence or nonexistence of the records was protected from disclosure by certain FOIA exemptions. (Decl. David J. Sherman 2.) The CIA initially directed Hetznecker to the FBI because the CIA is not involved in domestic law enforcement. (Decl. Antoinette B. Shiner Ex. B.) After Hetznecker sued, the CIA also adopted a Glomar response, citing Exemptions 1 and 3. (Id. at 7.)

         The FBI, NSA, and CIA jointly moved for summary judgment. (Defs.' Mot. Summ. J.) Without deciding the motion, the Court ordered the FBI to disclose in camera unredacted copies of the seven documents produced to Hetznecker. (Order, ECF No. 14.) The Court also ordered the NSA and CIA (collectively, “the Intelligence Agencies”) to conduct a search for responsive records, to compile Vaughn Indices, [3] and to submit the indices for in camera review. In order to protect their Glomar responses, the Court required the Intelligence Agencies to make in camera submissions even if the searches failed to yield any documents. (Id. at ¶ 3.) In response, Defendants filed for reconsideration of the Court's Order. The Court denied the motion for reconsideration, citing the broad discretion afforded district courts to conduct in camera review. The Court subsequently reviewed the defendants' in camera submissions, and now is prepared to rule on the motion for summary judgment.


         Summary judgment is appropriate when the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In a FOIA case, “the burden is on the agency” in proving that it properly withheld records. 5 U.S.C. § 552(a)(4)(B); see also Fed. R. Civ. P. 56(a). District courts review an agency's decision to withhold documents de novo, and “may examine the contents of such agency records in camera” to decide summary judgment. § 552(a)(4)(B). In reviewing the record, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). “[T]he Government enjoys a good faith presumption in FOIA actions.” Piper v. Dep't of Justice, 294 F.Supp.2d 16, 24 (D.C. Cir. 2003).


         The Freedom of Information Act aims to “facilitate public access to government documents.” Dep't of State v. Ray, 502 U.S. 164, 173 (1991). “The statute is designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Id. (quotation omitted). FOIA requires “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules, ” to “make the records promptly available to any person.” § 552(a)(3)(A). Agencies must make “reasonable efforts to search for the records.” Id. While there is a “general philosophy of full agency disclosure, ” Dep't of Air Force v. Rose, 425 U.S. 352, 360 (1976), FOIA provides nine categories of matters exempt from production, § 552(b)(1)-(9). “Congress sought to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quotation omitted).

         A. The FBI

         The FBI asserts that it conducted a reasonable search pursuant to Hetznecker's request, produced all relevant documents, and properly redacted those documents according to FOIA's exemptions. Hetznecker counters that the FBI did not conduct an adequate search for documents pursuant to his FOIA request, largely because the search only ...

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