Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 1 of 35 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ELECTRONIC PRIVACY INFORMATION CENTER Plaintiff v OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Defendant __________________________________________ Case No 17-cv-0163 RC MOTION FOR SUMMARY JUDGMENT Pursuant to 5 U S C 552 b 1 3 Federal Rule of Civil Procedure 56 and Local Rule 7 Defendant the Office of the Director National Intelligence ODNI or Defendant respectfully moves for summary judgment The reasons for this Motion are set forth in the Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment the Statement of Material Facts as to Which There Is No Genuine Issue and the Declaration of Edward Gistaro as well as the exhibits thereto A proposed order is filed concurrently herewith Dated June 26 2017 Respectfully submitted CHAD A READLER Acting Assistant Attorney General MARCIA BERMAN Assistant Branch Director s Jennie L Kneedler JENNIE L KNEEDLER Trial Attorney 1 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 2 of 35 United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave N W Washington D C 20001 Tel 202 305-8662 Fax 202 616-8470 Email Jennie L Kneedler@usdoj gov D C Bar # 500261 2 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 3 of 35 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ELECTRONIC PRIVACY INFORMATION CENTER Plaintiff v OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Defendant __________________________________________ Case No 17-cv-0163 RC DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to Local Rule 7 h 1 Defendant respectfully submits the following statement of material facts as to which there is no genuine issue 1 The Director of National Intelligence DNI serves as the head of the U S Intelligence Community IC and the principal advisor to the President and National Security Council for intelligence matters related to the national security Declaration of Edward Gistaro Gistaro Decl 5 2 The National Security Act of 1947 as amended created the Office of the Director of National Intelligence ODNI to assist the DNI in carrying out his responsibilities and duties Id 8 3 In December of 2016 President Obama instructed the DNI James Clapper to prepare an intelligence report addressing the motivation and scope of Russian efforts to influence the 2016 U S presidential election Id 9 DNI Clapper in turn 1 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 4 of 35 assigned the task of preparing the report to the National Intelligence Council NIC Id 10 4 The NIC is a key component of the ODNI that is responsible for leading analysis across the Intelligence Community to inform policy deliberations As the Deputy Director of National Intelligence for Intelligence Integration Mr Gistaro oversees the activities and operations conducted by the NIC Id 1 10 National Intelligence Officers NIO work in the NIC and serve as principal subject matter experts to the DNI and national security decisionmakers Id 11 5 The Vice Chair of the NIC supervised two NIOs with relevant subject matter expertise and a team of experienced intelligence officers from the Central Intelligence Agency CIA the Federal Bureau of Investigation FBI and the National Security Agency NSA in assembling the intelligence report based on intelligence available to the IC as of December 29 2016 Id 12-14 The Vice Chair and the two NIOs are experts with respect to identifying information that standing alone or working in concert with other information including unclassified information could jeopardize U S intelligence sources methods activities and national security if released to the public Id 6 The report was completed on January 5 2017 and was classified at the Top Secret level The report was properly classified Top Secret in accordance with ODNI's classification guidelines because it contained content that was classified by providing agencies as Top Secret Id 16 7 On January 6 2017 the U S Intelligence Community published a declassified version of the classified assessment Id 22 When President Obama 2 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 5 of 35 directed ODNI to prepare an intelligence report assessing Russian efforts to influence the 2016 US presidential election DNI Clapper determined from the onset that the IC would proactively share with the public all information contained in the report that safely could be released without jeopardizing intelligence sources methods and activities Id 18 To that end in December 2016 DNI Clapper directed the NIC to prepare a declassified version of the report for public release Id 19 8 DNI Clapper decided to disseminate information to the public in a declassified report as opposed to a redacted version of the classified report because a declassified report would convey the greatest amount of information to the public without jeopardizing intelligence sources methods and activities Id 20a 9 Releasing a redacted version of the classified report not only would have required redacting the classified portions of the report but a significant amount of unclassified information would also have to have been redacted to fully protect U S intelligence sources methods and activities To an experienced reader such as a foreign intelligence analyst the unclassified information if left unredacted would illustrate factual associations and relationships between the redacted and unredacted portions These associations and relationships would then provide valuable contextual clues to foreign intelligence organizations concerning the type subject matter and amount of classified intelligence the United States currently possesses or is capable of gathering The only way to prevent this possibility would be to redact significant amounts or even all of the unclassified information to properly conceal and protect U S sources methods and activities Id 20b 3 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 6 of 35 10 On the other hand a declassified report would decontextualize the unclassified information because the unredacted sections of the report would not be surrounded by or filled with conspicuously redacted portions The unclassified content would have no association or relationship with the redacted content in a declassified version and thus could be safely released in full to the American public without jeopardizing intelligence activities sources and methods This resulted in a greater overall amount of information being made available to the public Id 20c 11 The NIC worked on the classified report and the declassified report simultaneously This gave the NIC time to carefully and thoughtfully consider in consultation with contributing agencies what information could be provided to the public without harming national security Id 21 12 The declassified report contained the unclassified content of the classified report including all of the conclusions regarding Russian interference with the 2016 election Id 22 13 On January 9 2017 Plaintiff submitted a FOIA request to the ODNI for a copy of the report by the U S Intelligence Community Assessing Russian Activities and Intentions in Recent U S Elections ODNI understood the request to seek a copy of the classified report The request also sought a fee waiver and expedited processing See id 23 Ex 1 14 In a letter dated January 17 2017 ODNI acknowledged receipt of Plaintiff's FOIA request on January 10 2017 granted Plaintiff's request for a fee waiver and denied Plaintiff's request for expedited processing Id 24 Ex 2 4 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 7 of 35 15 After receiving Plaintiff's FOIA request and the filing of this action the NIC re-evaluated the contents of the classified report to determine if it could be publicly released with appropriate redactions Id 25 16 The NIC subject matter experts and the Vice Chair concluded based on their experience with classification standards their direct knowledge of the sensitive information contained in the classified report and their understanding of the capabilities of foreign intelligence operations to uncover classified information by pairing the declassified report with a partially or even fully redacted version of the classified report that release of a redacted version of the classified report would assist foreign intelligence operations with developing and enhancing their understanding of U S intelligence sources methods and activities Id 26 More specifically release of a redacted report would be of particular assistance to Russian intelligence which would use the declassified report and a redacted copy of the classified report to discern the volume of intelligence the United States possesses with respect to Russian attempts to influence the 2016 election This would reveal the maturity of the United States' intelligence efforts and expose information about the Intelligence Community's capabilities including sources and methods Id 17 In a letter dated May 2 2017 ODNI responded to Plaintiff's FOIA request saying that it had located the document responsive to Plaintiffs' request but that a fter a thorough review ODNI determined that the document must be withheld in full pursuant to Exemptions 1 and 3 Id 28 Ex 3 Specifically the letter stated that the information was currently and properly classified pursuant to Executive Order 13526 Section 1 4 c d Id Ex 3 The May 2 2017 letter identified the relevant Exemption 5 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 8 of 35 3 statute as the National Security Act of 1947 as amended 50 U S C 3024 i 1 which protects information pertaining to intelligence sources and methods Id 18 The Director of National Intelligence delegated Mr Gistaro original classification authority at the Top Secret level See Executive Order 13526 1 1 a 1 1 3 c Gistaro Decl 2 Mr Gistaro determined that the classified report remains properly classified Top Secret based on his experience knowledge of the contents of the report and understanding of the sensitive intelligence gathered produced and provided to ODNI by the contributing agencies See Gistaro Decl 17 19 Mr Gistaro ensured that the procedural requirements of Executive Order 13526 were followed including the proper identification and marking of the classified assessment See id 20 The information in the classified report is under the control of the United States Government Id 15 The intelligence provided by the CIA FBI and NSA for the classified report falls within the scope of one or more of four types of information Id 21 First some of the information contained in the classified report consists of intelligence obtained from signal intelligence SIGINT collected by the NSA The NSA produces SIGINT by collecting processing and analyzing foreign electromagnetic signals to obtain intelligence information necessary to the national defense national security and conduct of foreign affairs The SIGINT provided to the NIC by the NSA for inclusion in the classified report qualifies as intelligence activities sources or cryptology and as foreign activities of the United States pursuant to Executive Order 13526 1 4 c and d and was previously classified by the NSA as either Secret or Top 6 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 9 of 35 Secret Revealing the SIGINT in the classified report to the public or to foreign authorities could reasonably be expected to cause serious or exceptionally grave danger to the national security Id 15a 22 Second some of the information contained in the classified report consists of intelligence gathered by clandestine human sources HUMINT The HUMINT provided to the NIC by the CIA for inclusion in the classified report qualifies as or otherwise reveals intelligence activities and sources and foreign activities of the United States pursuant to Executive Order 13526 1 4 c and d and was previously classified by the CIA as either Secret or Top Secret Clandestine human sources are uniquely situated to report on specific subjects and to provide critical information that cannot be obtained otherwise The Intelligence Community takes all reasonable and necessary measures to ensure that human sources are not compromised because their exposure would subject them to capture imprisonment torture and death Such exposure would also impair the Intelligence Community's ability to recruit similarly situated individuals in the future Release of the human intelligence in the classified report to the public or to foreign authorities could reasonably be expected to expose human intelligence sources to serious or exceptionally grave danger Id 15b 23 Third the classified report contains details that would disclose intelligence methods Intelligence methods are the techniques procedures tradecrafts and means by which the Intelligence Community accomplishes its mission The intelligence provided to the NIC by the CIA NSA and FBI for inclusion in the classified report qualifies as or otherwise reveals intelligence activities and methods as well as foreign activities of the United States pursuant to Executive Order 13526 1 4 c and d and was previously 7 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 10 of 35 classified by the CIA NSA or FBI as either Secret or Top Secret By their very nature intelligence methods are revealing of intelligence sources and vice versa Therefore knowledge that a particular method is being employed can be used by foreign intelligence to pinpoint the availability and identity of a particular source or group of sources It would also enable foreign intelligence to impair or capture human assets counter U S intelligence efforts and otherwise provide entities hostile to the United States with a threatening and possibly decisive advantage over U S national security Release of the information in the classified report revealing intelligence methods to the public or to foreign authorities could reasonably be expected to cause serious or exceptionally grave danger to national security Id 15c 24 Fourth the classified report contains information regarding intelligence activities Intelligence activities are the operations that the Intelligence Community conducts to protect and preserve U S national security This intelligence provided to the NIC by the CIA the NSA and the FBI for inclusion in the classified report illustrates intelligence and or foreign activities of the United States pursuant to Executive Order 13526 1 4 c and or d and was previously classified by the NSA the CIA or the FBI as either Secret or Top Secret Activities rely on intelligence sources embody intelligence methods and reflect U S intelligence interests objectives and capabilities Knowledge of U S intelligence activities provides foreign governments with information that can assist them in detecting tracking and exposing U S intelligence sources and methods as well as impairing the United States' overall intelligence strategy Release of the information in the report revealing intelligence activities to the public or to foreign 8 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 11 of 35 authorities could reasonably be expected to cause serious or exceptionally grave danger to the national security Id 15d 25 The information falling within one or more of these four categories that was included in the classified report retains its original classification Id 15 26 Secret and Top Secret information is interwoven with unclassified information throughout the classified report Id 31 27 Even if the classified information were blocked out from the classified report a qualified reviewer could still use the unclassified unredacted portions and the context they provide to identify the nature and substance of the redacted portions including among other things the relative strengths availabilities and maturity of U S human intelligence and SIGINT capabilities By pairing a redacted version of the classified report with the contents of the declassified report the subject matters of the redacted texts could be identified and from there the volume of the redactions would reveal the relative strength and maturity of U S intelligence sources methods and activities Id 28 Even if the specific contents of the redacted portions could not be fully identified by foreign intelligence organizations this would still constitute a significant and detrimental exposure of U S intelligence activities sources and methods It would also reveal the comparative weight of U S human intelligence and signal intelligence capabilities For example it is likely that a skilled reviewer could determine whether the United States currently has human or signal intelligence sources in specific areas Russia would be in a better position to allocate its counter-intelligence resources to address critical areas where U S intelligence capabilities are revealed to be the strongest as 9 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 12 of 35 evidenced by the amount and the volume of the redacted text and could also tailor its countermeasures to account for the type of intelligence the United States has been able to collect Id 29 Public revelation of the types of information sought by the Plaintiff could result in the compromise of existing U S intelligence sources and methods would give the Russians the opportunity to change their tactics to avoid U S detection could prove fatal to U S human intelligence sources and would roll-back human intelligence signal intelligence and other intelligence activities designed to protect U S national security Id 33 30 Based on his 27 years of experience as a U S intelligence officer including his knowledge and experience with intelligence operations classification and established methods of gleaning useful intelligence information from seemingly benign innocuous records or portions thereof it is Mr Gistaro's reasoned opinion that release of a properly redacted version of the classified report would provide the American public with no information not already available in the declassified report but would certainly provide foreign intelligence services with valuable information that could be used alone or in conjunction with other information to jeopardize the physical safety of U S human intelligence sources uncover U S intelligence methods and identify understand and impair critical U S intelligence activities Mr Gistaro agrees that the NIC's conclusion that release of the classified report though heavily or even fully redacted would be very helpful to Russian intelligence in their ongoing efforts to interfere with the U S electoral process and would jeopardize the safety and effectiveness of the intelligence 10 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 13 of 35 community's critical valuable and in some cases vulnerable sources methods and activities is reasonable Id 30 32 34 11 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 14 of 35 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ELECTRONIC PRIVACY INFORMATION CENTER Plaintiff v OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Defendant __________________________________________ Case No 17-cv-0163 RC DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Respectfully submitted June 26 2017 CHAD A READLER Acting Assistant Attorney General MARCIA BERMAN Assistant Branch Director s Jennie L Kneedler JENNIE L KNEEDLER Trial Attorney United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave N W Washington D C 20001 Tel 202 305-8662 Fax 202 616-8470 Email Jennie L Kneedler@usdoj gov D C Bar # 500261 Attorneys for Defendant 1 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 15 of 35 I INTRODUCTION This action concerns a Freedom of Information Act FOIA request by Plaintiff the Electronic Privacy Information Center EPIC or Plaintiff to the Office of the Director for National Intelligence ODNI for a copy of the classified assessment of the U S Intelligence Community IC assessing Russian activities and intentions in recent U S elections On January 6 2017 the U S Intelligence Community published a version of the assessment describing it as a declassified version of a highly classified assessment that has been provided to the President and to recipients approved by the President Intelligence Community Assessment Assessing Russian Activities and Intentions in Recent U S Elections ICA 2017-01D Background at 1 Jan 6 2017 Declassified Assessment available at https www dni gov files documents ICA_2017_01 pdf This declassified version was prepared so that the IC could share with the public all information contained in the classified report that could be safely released without jeopardizing intelligence sources methods and activities See Declaration of Edward Gistaro Gistaro Decl 20 After receiving Plaintiff's FOIA request subject matter experts in the National Intelligence Council NIC which prepared the classified assessment re-evaluated the contents of the classified report to determine if any portion of it could be publicly released Gistaro Decl 10-14 25 These experts concluded that release of a redacted version of the classified report would assist foreign intelligence operations with developing and enhancing their understanding of U S intelligence sources methods and activities and thus could reasonably be expected to cause serious or exceptionally grave 1 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 16 of 35 damage to the national security Id 26-27 Therefore ODNI properly denied Plaintiff's request in full pursuant to Exemptions 1 and 3 and as discussed in further detail below Defendant's Motion for Summary Judgment should be granted II BACKGROUND A Preparation of the Classified Assessment In December of 2016 President Obama instructed the Director of National Intelligence DNI James Clapper 1 to prepare an intelligence report addressing the motivation and scope of Russian efforts to influence the 2016 U S presidential election Gistaro Decl 9 DNI Clapper in turn assigned the task of preparing the report to the NIC a key component of the ODNI2 that is responsible for leading analysis across the Intelligence Community to inform policy deliberations Id 10 In his capacity as Deputy Director of National Intelligence for Intelligence Integration Mr Gistaro oversees the activities and operations conducted by the NIC Id The Vice Chair of the NIC supervised two national intelligence officers NIO 3 with relevant subject matter expertise and a team of experienced intelligence officers from the Central Intelligence Agency CIA the Federal Bureau of Investigation FBI and the National Security Agency NSA in assembling the report based on 1 The DNI serves as the head of the U S Intelligence Community and the principal advisor to the President and National Security Council for intelligence matters related to the national security Id 5 see also id 6-7 describing the responsibilities and authorities of ODNI 2 The National Security Act of 1947 as amended created the ODNI to assist the DNI in carrying out his responsibilities and duties Id 8 3 National Intelligence Officers work in the NIC and serve as principal subject matter experts to the DNI and national security decisionmakers Id 11 2 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 17 of 35 intelligence available to the IC as of December 29 2016 Id 12-14 The Vice Chair and the two NIOs are experts with respect to identifying information that standing alone or working in concert with other information including classified information could jeopardize U S intelligence sources methods activities and national security if released to the public Id The report was completed on January 5 2017 and was classified at the Top Secret level because it contains information classified by other intelligence agencies as Top Secret which if revealed to unauthorized recipients could reasonably be expected to endanger U S intelligence assets impair U S intelligence activities and otherwise cause exceptionally grave damage to the national security of the United States Id 15-17 discussing types of information and citing inter alia Executive Order 13 526 1 4 c d B Preparation of the Declassified Assessment On January 6 2017 the U S Intelligence Community published a declassified version of the classified report Id 22 When President Obama instructed ODNI to prepare an intelligence report assessing Russian efforts to influence the 2016 US presidential election DNI Clapper determined from the onset that the IC would proactively share with the public all information contained in the report that safely could be released without jeopardizing intelligence sources methods and activities Id 18 To that end in December 2016 DNI Clapper directed the NIC to prepare a declassified version of the report for public release Id 19 DNI Clapper's decision to prepare a declassified report as opposed to a redacted version of the classified report was based on which type of release would convey the 3 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 18 of 35 greatest amount of information to the public without jeopardizing intelligence sources methods and activities The consensus within ODNI was that releasing a redacted version of the classified report would result in less information being made public Not only would it have required redacting the classified portions of the report but a significant amount of unclassified information would also have to have been redacted to fully protect U S intelligence sources methods and activities To an experienced reader such as a foreign intelligence service analyst the unclassified information if left unredacted would illustrate factual associations and relationships between the redacted and unredacted portions These associations and relationships would then provide valuable contextual clues to foreign intelligence organizations concerning the type subject matter and amount of classified intelligence the United States currently possesses or is capable of gathering The only way to prevent this possibility would be to redact significant amounts or even all of the unclassified information as well to properly conceal and protect U S sources methods and activities Id 20a b On the other hand a declassified report would decontextualize the unclassified information because the unredacted sections of the report would not be surrounded by or filled with conspicuously redacted portions The unclassified content would have no association or relationship with the redacted content in a declassified version and thus could be safely released in full to the American public without jeopardizing intelligence activities sources and methods This would result in a greater overall amount of information being made available to the American public Id 20c The NIC worked on the classified report and the declassified report simultaneously which provided it with time to carefully and thoughtfully consider in 4 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 19 of 35 consultation with contributing agencies what information could be provided to the public without harming national security Id 21 The declassified report contains the unclassified content of the classified report including all of the conclusions regarding Russian interference with the U S 2016 presidential election Id 22 see also Declassified Assessment at i This report is a declassified version of a highly classified assessment This document's conclusions are identical to the highly classified assessment but this document does not include the full supporting information including specific intelligence on key elements of the influence campaign Given the redactions we made minor edits purely for readability and flow C Plaintiff's FOIA Request and This Action On January 9 2017 Plaintiff submitted a FOIA request to the ODNI seeking a copy of the report by the U S Intelligence Community Assessing Russian Activities and Intentions in Recent U S Elections The request also sought a fee waiver and expedited processing See Gistaro Decl 23 Ex 1 In a letter dated January 17 2017 ODNI acknowledged receipt of Plaintiff's FOIA request on January 10 2017 granted Plaintiff's request for a fee waiver and denied Plaintiff's request for expedited processing Id 24 Ex 2 On January 25 2017 Plaintiff filed its Complaint ECF No 1 and on February 10 2017 it filed the Amended Complaint ECF No 6 Pursuant to a schedule proposed by the parties this Court ordered that Defendant process and release all non-exempt portions of the record responsive to Plaintiff's FOIA request on or before May 3 2017 Minute Order Apr 3 2017 5 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 20 of 35 D The ODNI's Processing of the FOIA Request After receiving Plaintiff's FOIA request and the filing of this action the NIC reevaluated the contents of the classified report to determine if it could be publicly released with appropriate redactions Gistaro Decl 25 The NIC subject matter experts including the Vice Chair concluded based on their experience with classification standards their direct knowledge of the sensitive information contained in the classified report and their understanding of the capabilities of foreign intelligence operations to uncover classified information by pairing the declassified report with a partially or even fully redacted version of the classified report that release of a redacted version of the classified report would assist foreign intelligence operations with developing and enhancing their understanding of U S intelligence sources methods and activities More specifically release of a redacted report would be of particular assistance to Russian intelligence which would use the declassified report and a redacted copy of the classified report to discern the volume of intelligence the United States possesses with respect to Russian attempts to influence the 2016 election This would reveal the maturity of U S intelligence's efforts and expose information about the Intelligence Community's capabilities including sources and methods Id 26 In a letter dated May 2 2017 ODNI responded to Plaintiff's FOIA request saying that it had located the document responsive to Plaintiffs' request but that a fter a thorough review ODNI determined that the document must be withheld in full pursuant to Exemptions 1 and 3 Gistaro Decl 28 Ex 3 Specifically the letter stated that the information was currently and properly classified pursuant to Executive Order 13526 Section 1 4 c d Id Exemption 3 applies to information exempt from disclosure by 6 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 21 of 35 statute Id The May 2 2017 letter identified the relevant statute as the National Security Act of 1947 as amended 50 U S C 3024 i 1 which protects information pertaining to intelligence sources and methods Id III ARGUMENT A Legal Standard Most FOIA cases can be resolved on summary judgment Elec Privacy Info Ctr v Dep't of Justice 82 F Supp 3d 307 314 D D C 2015 A court reviews an agency's response to a FOIA request de novo 5 U S C 552 a 4 B The defendant in a FOIA case must show that its search for responsive records was adequate that any exemptions claimed actually apply and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information Light v DOJ 968 F Supp 2d 11 23 D D C 2013 B The ODNI Conducted an Adequate Search A defendant agency is entitled to summary judgment in a FOIA case with respect to the adequacy of its search if the agency shows that it made a good faith effort to conduct a search for the requested records using methods which can be reasonably expected to produce the information requested Oglesby v U S Dep't of Army 920 F 2d 57 68 D C Cir 1990 Here ODNI understood Plaintiff to be seeking a copy of the classified report and ODNI located it Gistaro Decl 23 Therefore no additional search was required C ODNI Properly Withheld the Responsive Record Pursuant to Applicable Exemptions The FOIA represents a balance struck by Congress between the right of the public to know and the need of the Government to keep information in confidence 7 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 22 of 35 John Doe Agency v John Doe Corp 493 U S 146 152 1989 citation omitted Congress recognized that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused FBI v Abramson 456 U S 615 621 1982 While these exemptions are to be narrowly construed id at 630 courts must not fail to give them meaningful reach and application John Doe 493 U S at 152 An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit Larson v Dep't of State 565 F 3d 857 862 D C Cir 2009 Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith Wolf v CIA 473 F 3d 370 374 D C Cir 2007 quotations omitted Ultimately an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible ' Id at 374-75 citation omitted Here the information withheld implicat es national security a uniquely executive purview Ctr for Nat'l Sec Studies v DOJ 331 F 3d 918 926-27 D C Cir 2003 both the Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security see also Larson 565 F 3d at 865 Today we reaffirm our deferential posture in FOIA cases regarding the 'uniquely executive purview' of national security The DC Circuit has consistently deferred to executive affidavits predicting harm to the 8 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 23 of 35 national security and have found it unwise to undertake searching judicial review Ctr for Nat'l Sec Studies 331 F 3d at 927 Defendant is entitled to summary judgment with regard to its application of Exemptions 1 and 3 to the contents of the classified report because the Gistaro Declaration provides detailed justifications for the withholding of the information contained therein 1 The ODNI Properly Withheld Information Pursuant to Exemption 1 First ODNI properly withheld the classified report pursuant to FOIA Exemption 1 This exemption protects from disclosure records that are A specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and B are in fact properly classified pursuant to such Executive order 5 U S C 552 b 1 Pursuant to Executive Order 13526 which prescribes a uniform system for classifying safeguarding and declassifying national security information an agency may classify information if the following conditions are met 1 an original classification authority is classifying the information 2 the information is owned by produced by or for or is under the control of the United States Government 3 the information falls within one or more of the categories of information listed in section 1 4 of the Executive Order and 4 the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage Classified National Security Information Executive Order 13526 1 1 a 75 Fed Reg 707 9 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 24 of 35 A court accord s substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects sic might occur as a result of a particular classified record Larson 565 F 3d at 864 quotation omitted see also Am Civil Liberties Union v U S DOD 628 F 3d 612 619 D C Cir 2011 courts lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case Ctr for Nat'l Sec Studies 331 F 3d at 927 W e have consistently deferred to executive affidavits predicting harm to the national security and have found it unwise to undertake searching judicial review The Gistaro Declaration demonstrates that the ODNI has adhered to the procedures set forth in Executive Order 13526 in determining that the information in the classified assessment is indeed classified See Gistaro Decl 15-17 The Director of National Intelligence has delegated to Mr Gistaro original classification and declassification authority at the Top Secret Level See Executive Order 13526 1 1 a 1 1 3 c Gistaro Decl 2 Mr Gistaro reviewed the classified report and determined that it remains currently and properly classified Top Secret based on classification determinations made by other intelligence agencies that provided the Secret and Top Secret contents of the report Gistaro Decl 15-17 Mr Gistaro also ensured that the procedural requirements of Executive Order 13526 were followed including the proper identification and marking of the classified assessment See id 16-17 The classified report also meets the substantive requirements of Executive Order 13526 The information in the classified report is under the control of the United States 10 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 25 of 35 Government Id 15 The Gistaro Declaration also explains that the intelligence provided by the CIA FBI and NSA for inclusion in the classified report falls within the scope of one or more of four types of information all of which qualify as information regarding intelligence activities intelligence sources or methods or cryptology and or foreign activities of the United States It further explains that the report was classified at the Top Secret level because it contains information that if released to unauthorized recipients could reasonably be expected to cause serious or exceptionally grave damage to the national security of the United States See id 15-17 Exec Order 13526 1 2 a 1 2 defining Top Secret and Secret classification levels 1 4 c d describing classification categories for intelligence activities intelligence sources or methods or cryptology and foreign activities of the United States see also 32 C F R 2001 21 b 2 For documents containing information classified at more than one level the overall marking shall be the highest level Mr Gistaro determined that the classified report remains properly classified Top Secret based on his experience knowledge of the contents of the report and understanding of the sensitive intelligence gathered produced and provided to ODNI by the contributing agencies See Gistaro Decl 17 First some of the information contained in the classified report consists of intelligence obtained from signal intelligence SIGINT collected by the NSA The NSA produces SIGINT by collecting processing and analyzing foreign electromagnetic signals to obtain intelligence information necessary to the national defense national security and conduct of foreign affairs The SIGINT provided to the NIC by the NSA for inclusion in the classified report qualifies as intelligence activities sources or 11 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 26 of 35 cryptology and as foreign activities of the United States pursuant to Executive Order 13526 1 4 c d and was previously classified by NSA at the Secret or Top Secret level Release of the classified SIGINT in the report to the public or to foreign authorities could reasonably be expected to cause serious or exceptionally grave danger to national security Gistaro Decl 15a Second some of the information contained in the report consists of intelligence gathered by clandestine human sources These individuals are often uniquely situated to report on specific subjects and to provide critical information that cannot otherwise be obtained The human intelligence provided to the NIC by the CIA for inclusion in the classified report qualifies as or otherwise reveals intelligence activities and sources and foreign activities of the United States pursuant to Executive Order 13526 1 4 c d and was previously classified by the CIA at the Secret or Top Secret level The Intelligence Community takes necessary measures to ensure that human sources are not compromised because their exposure would subject them to capture imprisonment torture and death Such exposure would also impair the Intelligence Community's ability to recruit similarly situated individuals in the future Release of the classified human intelligence in the report to the public or foreign authorities could reasonably be expected to expose human intelligence sources to serious or exceptionally grave danger and would present an equally serious or exceptionally grave danger to national security Id 15b Third the report contains details that would disclose intelligence methods - the techniques procedures tradecrafts and means by which the Intelligence Community accomplishes its mission The intelligence provided to the NIC by the CIA the FBI and 12 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 27 of 35 the NSA for inclusion in the classified report qualifies as or otherwise reveals intelligence activities and methods as well as foreign activities of the United States pursuant to Executive Order 13526 1 4 c d and was previously classified by the CIA NSA or FBI at the Secret or Top Secret level By their very nature intelligence methods are revealing of intelligence sources and vice versa Therefore knowledge that a particular method is being employed can be used by foreign intelligence to pinpoint the availability and identity of a particular source or group of sources It would also enable foreign intelligence to impair or capture human assets counter U S intelligence efforts and otherwise provide entities hostile to the United States with a threatening and possibly decisive advantage over U S national security Release of the information revealing intelligence methods to the public or foreign authorities could reasonably be expected to cause serious or exceptionally grave danger to national security Id 15c And fourth the classified report contains information regarding intelligence activities - the operations that the Intelligence Community conducts to protect and preserve U S national security The intelligence included in the classified report that was provided to the NIC by the CIA the FBI and the NSA illustrates intelligence and or foreign activities of the United States pursuant to Executive Order 13526 1 4 c and d and was previously classified by the CIA the NSA or the FBI as either Secret or Top Secret Activities rely on intelligence sources embody intelligence methods and reflect U S intelligence interests objectives and capabilities Knowledge of U S intelligence activities provides foreign governments with information that can assist them in detecting tracking and exposing U S intelligence sources and methods as well as impairing the United States' overall intelligence strategy Release of the information in 13 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 28 of 35 the report revealing intelligence activities to the public or to foreign authorities could reasonably be expected to cause serious or exceptionally grave danger to national security Id 15d Given the subject matter of the classified report as well as the nature of the intelligence contained therein the ODNI's justifications for invoking FOIA Exemption 1 with respect to the types of information discussed above are certainly logical and plausible especially given the deference afforded to agency affidavits predicting harm to the national security See Larson 565 F 3d at 862 865 Gistaro Decl 33 saying public revelation of the types of information sought by the Plaintiff could result in the compromise of existing U S intelligence sources and methods would give the Russians the opportunity to change their tactics to avoid U S detection could prove fatal to U S human intelligence sources and would roll-back human intelligence signal intelligence and other intelligence activities designed to protect U S national security 4 Therefore the ODNI has sustained its burden of justifying withholding the report pursuant to Exemption 1 See Larson 565 F 3d at 863-70 holding that the CIA and the NSA sufficiently demonstrated that information regarding intelligence sources and signal intelligence was properly classified without needing to review a supplemental classified declaration proferred by the NSA 4 If the Court concludes that ODNI has not supplied sufficient justifications for withholding this information Defendant can provide a classified declaration for the Court's in camera ex parte review Arieff v U S Dep't of Navy 712 F 2d 1462 1469 D C Cir 1983 authorizing review of in camera declarations when necessary in FOIA cases 14 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 29 of 35 2 The ODNI Properly Withheld Information Pursuant to Exemption 3 Exemption 3 permits agencies to withhold from disclosure records that are specifically exempted from disclosure by statute 5 U S C 552 b 3 Under this exemption the ODNI need only show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld material falls within the statute Larson 565 F 3d at 865 In this case the ODNI invokes Section 102A i 1 of the National Security Act of 1947 as amended now codified at 50 U S C 3024 i 1 which requires the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure See also Gistaro Decl 30 It is well established that Section 102A i 1 is an exemption 3 statute See Larson 565 F 3d at 865 referencing 50 U S C 403- 1 i 1 now codified at 50 U S C 3024 i 1 citation omitted see also DiBacco v U S Army 795 F 3d 178 183 197 D C Cir 2015 same In fact the Supreme Court has recognized the wide-ranging authority provided by the National Security Act to protect intelligence sources and methods See CIA v Sims 471 U S 159 169-70 177 1985 Thus the only remaining question is whether the withheld material relates to intelligence sources and methods The discussion in the Gistaro Declaration demonstrates that it does by explaining the information contained in the classified report regarding signal intelligence sources human intelligence sources intelligence methods and intelligence activities Gistaro Decl 15 20b 30 see also Larson 565 F 3d at 865 868 easily concluding based on agency affidavits that withheld information related to intelligence sources and methods and thus was properly withheld under 15 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 30 of 35 Exemption 3 Therefore the ODNI has properly withheld information pursuant to Exemption 3 D The ODNI Has Demonstrated that the Entire Classified Assessment Must Be Withheld in Full FOIA requires that a ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection 5 U S C 552 b ODNI has shown that no portion of the classified report can be released without jeopardizing national security As explained above in December 2016 DNI Clapper directed the NIC to prepare a declassified version of the classified report because he determined that the IC would proactively share with the public all information contained in the report that safely could be released without jeopardizing intelligence sources methods and activities Gistaro Decl 18-20 DNI Clapper decided to disseminate information to the public in a separate declassified report as opposed to a redacted version of the classified report because in order to fully protect U S intelligence sources methods and activities a significant amount of unclassified information in the classified report would also need to be redacted To an experienced reader such as a foreign intelligence service analyst the unclassified information if left unredacted would illustrate factual associations and relationships between the redacted and unredacted portions These associations and relationships would then provide valuable contextual clues to foreign intelligence organizations concerning the type subject matter and amount of classified intelligence the United States currently possesses or is capable of gathering The only way to prevent 16 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 31 of 35 this possibility would be to redact significant amounts or even all of the unclassified information to properly conceal and protect U S sources methods and activities Id 20b On the other hand a declassified report would decontextualize the unclassified information because the unredacted sections of the report would not be surrounded by or filled with conspicuously redacted portions The unclassified content would have no association or relationship with the redacted content in a declassified version and thus could be safely released in full to the American public without jeopardizing intelligence activities sources and methods This would result in a greater overall amount of information being made available to the American public Id 20c The NIC worked on the classified report and the declassified report simultaneously which provided it with time to carefully and thoughtfully consider in consultation with contributing agencies what information could be provided to the public without harming national security Id 21 The declassified report contained the unclassified content of the classified report including all of the conclusions regarding Russian interference with the 2016 U S presidential election Id 22 Moreover the NIC re-evaluated the contents of the classified report after receiving Plaintiff's FOIA request and the filing of this action to determine if it could be publicly released with appropriate redactions Id 25 The NIC subject-matter experts including the Vice Chair concluded based on their experience with classification standards their direct knowledge of the sensitive information contained in the classified report and their understanding of the capabilities of foreign intelligence operations to uncover classified information by pairing the declassified report with a partially or even 17 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 32 of 35 fully redacted version of the classified report that release of a redacted version of the classified report would assist foreign intelligence operations with developing and enhancing their understanding of U S intelligence sources methods and activities More specifically release of a redacted report would be of particular assistance to Russian intelligence which would use the declassified report and a redacted copy of the classified report to discern the volume of intelligence the United States possesses with respect to Russian attempts to influence the 2016 election This would reveal the maturity of the United States' intelligence efforts and expose information about the Intelligence Community's capabilities including sources and methods that could reasonably be expected to cause serious or exceptionally grave danger to national security Id 26 In his capacity as the Deputy Director of National Intelligence for Intelligence Integration Mr Gistaro oversees the activities and operations conducted by the NIC Id 10 Based on his 27 years of experience as an intelligence officer and in his capacity as an original classification authority Mr Gistaro agrees that a heavily or fully redacted version of the classified report cannot be released without jeopardizing national security information properly classified as Secret or Top Secret Id 30 Specifically Mr Gistaro who reviewed both reports notes that within the classified report Secret and Top Secret information is interwoven with unclassified information throughout the document Even if the classified information were blocked out a qualified reviewer could still use the unclassified unredacted portions and the context they provide to identify the nature and substance of the redacted portions including the relative strengths availabilities and maturity of U S human intelligence and SIGINT capabilities This could be readily achieved by pairing a redacted version of 18 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 33 of 35 the classified report with the contents of the unclassified report Through this pairing the subject matters of the redacted texts could be identified and from there the volume of the redactions would reveal the relative strength and maturity of U S intelligence sources methods and activities Id 30-31 Even if the specific content of the redacted portions could not be fully identified by foreign intelligence organizations it would still constitute a significant and detrimental exposure of U S intelligence activities sources and methods because a redacted report would reveal the comparative weight of the United States' human intelligence and signal intelligence capabilities For example a skilled reviewer could determine whether the United States currently has human or signal intelligence sources in specific areas Russia would also be in a better position to allocate its counterintelligence resources to address critical areas where U S intelligence capabilities are revealed to the strongest as evidenced by the amount and volume of redacted text and could tailor its countermeasures to account for the type of intelligence the United States has been able to collect Id see Larson 565 F 3d at 864 Minor details of intelligence information may reveal more information than their apparent insignificance suggests because much like a piece of jigsaw puzzle each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself Sims 471 U S at 178 cautioning that w hat may seem trivial to the uninformed may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context Ctr for Nat'l Sec Studies 331 F 3d at 928 noting that courts have relied on similar mosaic arguments in the context of national security 19 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 34 of 35 Based on his 27 years of experience as a U S intelligence officer including his knowledge and experience with intelligence operations classification and established methods of gleaning useful intelligence information from seemingly benign innocuous records or portions thereof it is Mr Gistaro's reasoned opinion that release of a properly redacted version of the classified report would provide the American public with no information not already available in the declassified report but would certainly provide foreign intelligence services with valuable information that could be used alone or in conjunction with other information to jeopardize the physical safety of U S human intelligence sources uncover U S intelligence methods and identify understand and impair critical U S intelligence activities Mr Gistaro agrees that the NIC's conclusion that release of the classified report though heavily or even fully redacted would be very helpful to Russian intelligence in their ongoing efforts to interfere with the U S electoral process and would jeopardize the safety and effectiveness of the intelligence community's critical valuable and in some cases vulnerable sources methods and activities is reasonable Gistaro Decl 32 34 Therefore the ODNI has demonstrated that release of a redacted version of the classified report would cause serious or exceptionally grave damage to U S intelligence efforts and national security Id 34 see Johnson v Exec Office for U S Attorneys 310 F 3d 771 776-77 D C Cir 2002 agency demonstrated there was no reasonably segregable non-exempt information where it submitted affidavit showing that agency had conducted line-by-line review of each document withheld in full Sussman v U S Marshals Serv 494 F 3d 1106 1117 D C Cir 2007 Agencies are entitled to a 20 Case 1 17-cv-00163-RC Document 17 Filed 06 26 17 Page 35 of 35 presumption that they complied with the obligation to disclose reasonably segregable material Defendant's Motion for Summary Judgment should be granted IV CONCLUSION For the foregoing reasons the Court should grant Defendant's Motion for Summary Judgment 21                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu