Agencies Must Release Policy Documents About Purchase of the Personal Data of 145 Members of Congress
Late last week, Judge Rudolph Contreras ordered the NSA, the CIA, the FBI, and the Office of the Director of National Intelligence to respond to a PPSA Freedom of Information Act (FOIA) request. The government now has two weeks to schedule the production of “policy documents” regarding the intelligence community’s acquisition and use of commercially available information regarding 145 current and former Members of Congress.
This is the second time Judge Contreras has had to tell federal agencies to respond to a FOIA request PPSA submitted. In late 2022, Judge Contreras rejected in part the FBI’s insistence that the Glomar doctrine allowed it to ignore FOIA’s requirement to search for responsive records. Despite that clear holding, the FBI – joined this time by several other agencies – again refused to search for records in response to PPSA’s FOIA request. And Judge Contreras had to remind the agencies again that FOIA’s search obligations cannot be ducked so easily.
Instead, Judge Contreras found that PPSA “logically and plausibly” requested the policy documents about the acquisition of commercially available information. And Judge Contreras concluded that a blanket Glomar response, in which the government neither confirms nor denies the existence of the requested documents, is appropriate only when a Glomar response is justified for all categories of responsive records.
The judge then described a hypothetical letter from a Member of Congress to the NSA that clarifies the distinction between operational and policy documents. He considered that such a letter might ask if the NSA “had purchased commercially available information on any of the listed Senators or Congresspeople” without revealing whether the NSA (or any other of the defendant agencies) “had a particular interest in surveilling the individual.” Judge Contreras decided that “it is difficult to see how a document such as this would reveal sensitive information about Defendants’ intelligence activities, sources, or methods.”
It is on this reasoning that the judge ordered these agencies to produce these policies documents. We eagerly awaits the delivery of these documents in both cases. Stay tuned.