Larson v. Department of State

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2008 Decided May 8, 2009

No. 06-5112

MEREDITH LARSON, ET AL.,

APPELLANTS

v.

DEPARTMENT OF STATE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01937)

Tania Beth Rose argued the cause and filed the brief for

appellants.

Joshua P. Waldman, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Gregory G. Katsas, Acting Assistant Attorney General, Jeffrey

A. Taylor, U.S. Attorney, and Leonard Schaitman, Attorney.

Elizabeth J. Shapiro, Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, and HENDERSON and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

2

SENTELLE, Chief Judge: Pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, the plaintiffs seek to

compel the release of documents pertaining to violence they or

their loved ones suffered in Guatemala in the 1970s and 1980s.

The National Security Agency (“NSA”) and the Central

Intelligence Agency (“CIA”) withheld, in whole or in part,

certain records responsive to the plaintiffs’ requests under FOIA

Exemptions 1 and 3, and the district court upheld the

withholdings in granting summary judgment for the agencies.

Despite the plaintiffs’ arguments that they are entitled to the

documents and that the agencies did not adequately explain why

the records should be withheld, we agree with the district court

that the withheld documents are exempt from disclosure under

FOIA Exemptions 1 and 3, and that the agencies sufficiently

detailed the reasons for their nondisclosure. The plaintiffs also

challenge the responsiveness of the Department of State

(“DOS”) to one of their FOIA requests and the district court’s

decision not to view the withheld documents in camera. We

affirm the judgment of the district court on these issues as well.

I

The plaintiffs in this case each independently sought

information about past violence in Guatemala from government

agencies pursuant to FOIA. “FOIA mandates broad disclosure

of government records to the public, subject to nine enumerated

exemptions.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)

(citation omitted). Exemption 1 protects matters “specifically

authorized under criteria established by an Executive order to be

kept secret in the interest of national defense or foreign policy

and . . . in fact properly classified pursuant to such Executive

order.” 5 U.S.C. § 552(b)(1). Exemption 3 covers matters

“specifically exempted from disclosure by statute,” provided

that such statute leaves no discretion on disclosure or

“establishes particular criteria for withholding or refers to

3

particular types of matters to be withheld.” Id. § 552(b)(3).

These exemptions cover not only the content of protected

government records but also the fact of their existence or

nonexistence, if that fact itself properly falls within the

exemption. Wolf, 473 F.3d at 374. Agency refusal to confirm

or deny the existence of records responsive to a request is

known as a Glomar response. Id. (citing Phillippi v. CIA, 546

F.2d 1009, 1011 (D.C. Cir. 1976), which concerned the

existence of records regarding a ship named Hughes Glomar

Explorer).

As relevant here, plaintiff Meredith Larson submitted a

FOIA request to the NSA, seeking documents relating to a

violent attack she suffered in Guatemala in 1989, the

organization she worked with in Guatemala, and her subsequent

visits to the country and meetings with Guatemalan and United

States government officials. In response to Larson’s request, the

NSA released to her four documents in full and eight documents

in part, making redactions pursuant to FOIA Exemptions 1 and

3.

Plaintiff Thomas Henehan, a Maryknoll priest, made a

FOIA request of NSA regarding a 1976 plane crash that killed

a fellow Maryknoll priest working as a missionary in

Guatemala. Henehan requested all documents relating to the

crash and the priest’s death, including records about threats to

and investigations of the Maryknoll Fathers, copies of the

original 1995 FOIA file created in response to another priest’s

request, and information about Guatemalan troop movement in

the Ixcan region at the time of the crash. The NSA released

thirty-six documents to Henehan—six in full and thirty in

part1—and advised him that, pursuant to FOIA Exemptions 1

1

The NSA redacted e-mail routing information from some of

these documents pursuant to FOIA Exemption 2, which covers matters

4

and 3, it was withholding 137 responsive documents that

pertained only to Guatemalan troop movement and not to the

priest.

Plaintiff Patricia Kerndt also requested documents from the

NSA regarding the 1976 plane crash and the death of her sister,

who was a passenger on board the plane. The NSA found one

responsive document, which it withheld in full under FOIA

Exemptions 1 and 3. The NSA informed Kerndt that although

the document indicated that a plane crashed on the date in

question, it did not contain any information about the

passengers, the cause of the crash, who may have been

responsible, or any government actions.

Plaintiff Adriana Portillo-Bartow submitted FOIA requests

to the NSA and the CIA, seeking documents relating to the 1981

abduction and disappearance of her family in Guatemala. The

CIA found four responsive documents, none of which mentioned

members of Portillo-Bartow’s family, and withheld them under

Exemptions 1 and 3. The NSA issued a Glomar response to

Portillo-Bartow’s request, stating that it could not confirm or

deny the existence of responsive records pursuant to FOIA

Exemptions 1 and 3.

Plaintiff Lisel Holdenried made a FOIA request of the DOS

for all documents concerning the 1983 murder of her father in

Guatemala. Her request, made in 2002, also stated: “Please be

aware that Ms. Holdenried made a request for documents in

1995, and received some documentation. However, some

documentation was not submitted to her. Please regard this as

a renewed request.” The DOS had decided Holdenried’s appeal

“related solely to the internal personnel rules and practices of an

agency.” 5 U.S.C. § 552(b)(2). The plaintiffs do not challenge these

redactions on appeal.

5

of its response to the 1995 request in 1998. In response to her

2002 request, the DOS found thirty-six responsive documents

and released them all to Holdenried in full. The DOS advised

Holdenried that it had released some of those thirty-six

documents to her in response to her 1995 FOIA request, and that

the information she sought was now publicly available on the

DOS website.

In an effort to obtain the withheld and redacted documents

from the defendant agencies, the plaintiffs filed this suit in the

district court. The agencies moved for summary judgment and

along with their motions filed affidavits regarding their

responses to the FOIA requests, including Vaughn indices

describing the withheld documents and explaining why the

withheld information fell under the claimed exemptions. See

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The district

court declined the NSA’s offer to provide a supplemental

classified declaration ex parte in camera regarding the agency’s

Glomar response to Portillo-Bartow because there was no

evidence of agency bad faith and the agency’s affidavit was

sufficiently detailed to permit meaningful review of the claim of

exemption. After reviewing the affidavits and all the parties’

motions and materials, the district court granted summary

judgment for the NSA and the CIA on the claims currently

before us, concluding that FOIA Exemptions 1 and 3 protected

the withheld material from disclosure. The court also granted

summary judgment for the DOS on Holdenried’s claim,

concluding that the DOS conducted a reasonable search given

the search parameters Holdenried provided. The plaintiffs now

appeal.

II

An agency that has withheld responsive documents pursuant

to a FOIA exemption can carry its burden to prove the

6

applicability of the claimed exemption by affidavit, and we

review the agency’s justifications therein de novo. Ctr. for Nat’l

Sec. Studies v. DOJ, 331 F.3d 918, 926 (D.C. Cir. 2003); 5

U.S.C. § 552(a)(4)(B). “Summary judgment is warranted on the

basis of agency affidavits when the affidavits describe the

justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within

the claimed exemption, and are not controverted by either

contrary evidence in the record nor by evidence of agency bad

faith.” Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)

(quotation omitted). “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’

or ‘plausible.’” Wolf, 473 F.3d at 374-75 (quoting Gardels v.

CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982), and Hayden v. NSA,

608 F.2d 1381, 1388 (D.C. Cir. 1979)).

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. Gardels, 689 F.2d at 1106-07.

Although Exemption 1 or 3 alone would likely be sufficient to

uphold the agencies’ withholdings in this case, we affirm the

district court’s judgment that both exemptions apply to the

documents in question.

A

The CIA withheld from Portillo-Bartow four intelligence

cables that report detailed descriptions of information obtained

from a particular CIA source and provide general information

about the source. Regarding each cable the CIA explained that

“[o]nly certain people would have been in a position to know the

information contained in the cable. This information, when

combined with the time period and information outside the

cable, could provide enough clues to allow some individuals to

7

determine who provided the information to the CIA. In other

words, it could disclose the identity of the CIA source.” McNair

Decl. Ex. 1 at 6-7. The CIA concluded that no meaningful

information could be segregated from the cables for release.

1

The CIA claims that the cables are exempt from disclosure

under FOIA Exemption 1 because they are currently properly

classified pursuant to Executive Order 12958 as information

concerning “intelligence sources or methods,” and their

disclosure could reasonably be expected to damage national

security. Exec. Order No. 12958 § 1.5(c) (1995), as amended by

Exec. Order No. 13292 § 1.4(c), 68 Fed. Reg. 15,315, 15,317

(March 25, 2003). In its affidavit, the CIA explains that

information that could lead to discovery of an intelligence

source must be protected to preserve that source (or if the source

is no longer alive, other sources discovered through that

individual) and to preserve the government’s ability to retain

other current sources and recruit new sources. Disclosure of an

individual’s cooperation with the CIA in contravention of

previous assurances of confidentiality would seriously

undermine the CIA’s ability to retain its current intelligence

sources and attract future intelligence sources. The CIA also

explained that disclosing the cables could lead to the

unauthorized disclosure of intelligence methods, the means by

which the agency accomplishes its intelligence-gathering

mission. These methods are valuable for intelligence gathering

only so long as those who would use countermeasures against

them remain unsuspecting. Even seemingly trivial details may

be of great significance to foreign intelligence services with a

broad view of the intelligence landscape in their attempts to

discover and thwart CIA intelligence-gathering methods. Once

an intelligence method is disclosed, its continued use is

compromised and the CIA must attempt to develop and validate

8

new intelligence methods at significant monetary and

informational costs.

The CIA has carried its burden to show that FOIA

Exemption 1 applies to the four cables withheld from Portillo-

Bartow. In its affidavit the agency described with reasonably

specific detail the reason for nondisclosure: the importance for

continuing intelligence operations of keeping intelligence

sources and methods classified and confidential. The Supreme

Court has acknowledged the paramount importance of

protecting intelligence sources for precisely the reasons detailed

by the CIA:

If potentially valuable intelligence sources come to think

that the Agency will be unable to maintain the

confidentiality of its relationship to them, many could

well refuse to supply information to the Agency in the

first place. . . . “The continued availability of

[intelligence] sources depends upon the CIA’s ability to

guarantee the security of information that might

compromise them and even endanger their personal

safety.”

CIA v. Sims, 471 U.S. 159, 175-76 (1985) (quoting Snepp v.

United States, 444 U.S. 507, 512 (1980)). The agency’s

affidavit also demonstrates that the withheld cables logically fall

within the exemption, that is, that they are properly classified in

the interest of national security. See 5 U.S.C. § 552(b)(1). We

“accord 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.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927 (quoting

McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983)).

9

Granting the CIA’s affidavit substantial weight concerning the

classified nature of the cables due to the risk that their release

could pose to national security, the affidavit sufficiently

demonstrates, to the extent possible without revealing classified

information, that the cables are properly classified under

Executive Order 12958 in the interest of national security, and

therefore fall within Exemption 1. The parties present us with

no evidence to the contrary or evidence suggesting bad faith on

the part of the CIA in withholding the cables.

Portillo-Bartow would demand further explanation from the

CIA about how release of the information in the cables “could

actually contribute to the potential loss of national security.”

She argues that the district court should have required the CIA

to answer follow-up questions to its affidavit such as whether

the passage of time or change in political environment have

rendered classification less necessary, and how revelation of

specific details she requested such as the source’s nationality

and whether the source is still alive bear on national security.

Although conclusory affidavits that merely recite statutory

standards, or are overly vague or sweeping will not, standing

alone, carry the government’s burden, see Hayden, 608 F.2d at

1387, such affidavits are not at issue here. The CIA sufficiently

detailed the classified information in the withheld cables, why

that information was classified, and why it logically must remain

classified in the interest of national security. As the district

court noted, identification of the source is the only purpose

served by the details Portillo-Bartow seeks about the source, and

identification is the very danger against which the Executive

Order protects. 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.’

10

. . . The CIA has the right to assume that foreign intelligence

agencies are zealous ferrets.” Gardels, 689 F.2d at 1106

(quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)).

In its affidavit, the CIA also explained why the passage of

time—“whether three or thirty years”—did not alter the need to

assure sources of the government’s ability to maintain

confidentiality, and we have credited the logic of that

explanation. See Wolf, 473 F.3d at 377 (“[I]t is logical to

conclude that the need to assure confidentiality to a foreign

source includes neither confirming nor denying the existence of

records even decades after the death of the foreign national.”);

Fitzgibbon v. CIA, 911 F.2d 755, 763-64 (D.C. Cir. 1990)

(“[T]he Government has a compelling interest in protecting both

the secrecy of information important to our national security and

the appearance of confidentiality so essential to the effective

operation of our foreign intelligence service.” (quoting Sims,

471 U.S. at 175)).

If an agency’s statements supporting exemption contain

reasonable specificity of detail as to demonstrate that the

withheld information logically falls within the claimed

exemption and evidence in the record does not suggest

otherwise, as is the case here, the court should not conduct a

more detailed inquiry to test the agency’s judgment and

expertise or to evaluate whether the court agrees with the

agency’s opinions. See Gardels, 689 F.2d at 1104; Halperin,

629 F.2d at 148. “[W]e have consistently deferred to executive

affidavits predicting harm to the national security, and have

found it unwise to undertake searching judicial review.” Ctr. for

Nat’l Sec. Studies, 331 F.3d at 927. Today we reaffirm our

deferential posture in FOIA cases regarding the “uniquely

executive purview” of national security. Id. at 926-27. The

judiciary “is in an extremely poor position to second-guess” the

predictive judgments made by the government’s intelligence

agencies regarding questions such as whether a country’s

11

changed political climate has yet neutralized the risk of harm to

national security posed by disclosing particular intelligence

sources. Id. at 928; see Halperin, 629 F.2d at 148; Hayden, 608

F.2d at 1388. We therefore reject Portillo-Bartow’s

encouragement to cross-examine the CIA until we are satisfied

that its assessment of the national security risk is correct.

2

Portillo-Bartow’s objections are similarly unavailing against

the CIA’s invocation of FOIA Exemption 3. Under that

exemption, the CIA 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. Fitzgibbon, 911 F.2d

at 761-62. Here, the CIA invoked the National Security Act,

which requires the Director of National Intelligence to “protect

intelligence sources and methods from unauthorized

disclosure.”2 50 U.S.C. § 403-1(i)(1) (formerly 50 U.S.C.

§ 403-3(c)(7)). Portillo-Bartow does not dispute that section

403-1(i)(1) is an exemption statute. See Fitzgibbon, 911 F.2d at

761 (“There is thus no doubt that section 403(d)(3) [now

section 403-1(i)(1)] is a proper exemption statute under

exemption 3.”). In section 403-1(i)(1), “Congress gave the

Agency broad power to control the disclosure of intelligence

sources.” Sims, 471 U.S. at 173. Thus, our only remaining

inquiry is whether the withheld material relates to intelligence

sources and methods. Fitzgibbon, 911 F.2d at 762. As

previously discussed, according substantial weight to the CIA’s

2

The CIA also invoked the Central Intelligence Agency Act,

which exempts the CIA from any laws that require disclosure of the

“organization, functions, names, official titles, salaries, or numbers of

personnel employed by the Agency.” 50 U.S.C. § 403g. Portillo-

Bartow does not contest the applicability of this exemption to

withhold internal CIA organizational data in the cables.

12

affidavits, we easily conclude that it does, and Portillo-Bartow’s

objections do not alter our conclusion.

B

The NSA also withheld responsive documents or parts of

documents from the plaintiffs pursuant to FOIA Exemptions 1

and 3. As relevant here, the NSA withheld from Kerndt one

foreign intelligence report that indicated a plane crashed on the

date about which she inquired but did not contain any additional

pertinent information. The NSA redacted parts of eight

documents it released to Larson; at her request, throughout the

documents the agency noted the specific exemption applicable

to each redaction. As to Henehan’s request, the agency redacted

parts of thirty documents, indicating the exemption claimed by

each redaction, and withheld in their entirety 137 foreign

intelligence reports relating solely to Guatemalan troop

movement. The agency explained that no portion of those

reports was reasonably segregable and a particularized index of

the reports would compromise the secret nature of the

information. Finally, the NSA informed Portillo-Bartow that it

could neither confirm nor deny the existence of materials

responsive to her request for documents relating to the abduction

of her family and potential safe houses in Guatemala because the

existence or nonexistence of materials responsive to that request

was properly classified and protected by statute.

1

The NSA asserts that the documents and redactions

withheld from Portillo-Bartow, Larson, Kerndt, and Henehan are

exempt from disclosure under FOIA Exemption 1 because they

are currently properly classified pursuant to Executive Order

12958 as concerning “foreign government information”;

“intelligence activities . . . , intelligence sources or methods, or

13

cryptology”; “foreign relations or foreign activities of the United

States, including confidential sources”; and “vulnerability or

capabilities of systems, . . . projects, [and] plans . . . relating to

the national security.” Exec. Order No. 12958 § 1.5(b), (c), (d),

(g) (1995), as amended by Exec. Order No. 13292 § 1.4(b), (c),

(d), (g), 68 Fed. Reg. at 15,317.

In its affidavit, the NSA explained that one of its central

missions is “to intercept communications of foreign

governments in order to obtain foreign intelligence information

necessary to the national defense, national security, or the

conduct of the foreign affairs of the United States.” Giles Aff.

at 2. The identity of specific communications (referred to as

“targets”), the degree of success in exploiting those targets, the

vulnerability of particular foreign communications, and the

extent of any cryptological successes must be kept in strict

secrecy because of the fragility of the NSA’s ability to exploit

foreign communications. Disclosure of such information would

provoke protective countermeasures by the targets of the NSA’s

efforts, and if a foreign power successfully defeats an

interception operation, the government loses all intelligence

from that source unless and until the NSA can develop new

equivalent exploitation of the foreign power’s signals. In the

meantime, “the military, national policymakers and [the]

intelligence community must operate without the information

the signals provided. Such losses are extremely harmful to the

national security of the United States.” Giles Aff. at 3.

The NSA explained that the information withheld from

Larson, Kerndt, and Henehan “is derived from the most

sensitive and fragile” signals intelligence targets and identifies

targets whose communications the NSA has exploited or

pertains to intelligence collection assignments and the technical

details of collection. Giles Aff. at 10. Disclosure of that

information would inform those targets of their vulnerabilities

14

and the NSA’s specific capabilities, sources, and methods,

prompting the targets to undertake countermeasures to deny

access to those communications. The NSA concluded that the

loss of these highly prized communications could reasonably be

expected to cause serious damage to national security and

foreign relations interests. The agency similarly determined that

confirming the existence or nonexistence of records responsive

to Portillo-Bartow’s request would reveal vulnerabilities of

communications systems, the success or lack of success in

collecting information, and projects or plans relating to national

security. Requiring acknowledgment of whether or not

responsive records exist, the NSA explained, could reasonably

be expected to cause serious damage to the national security.

The NSA has carried its burden to show that FOIA

Exemption 1 applies to the documents and information withheld

from these plaintiffs. The agency described with reasonably

specific detail the reason for nondisclosure: the necessity to

foreign intelligence gathering of keeping targets and foreign

communications vulnerabilities secret. We have credited this

reason for nondisclosure. See Students Against Genocide v.

Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001) (explaining

that disclosure of targets’ vulnerabilities would cause targets “to

engage countermeasures to deny access to those

communications”). We have also accepted this level of detail in

an NSA explanation as sufficiently specific to qualify for

withholding under Exemption 1 in light of the substantial weight

owed agency explanations in the context of national security.

See id. (accepting explanation that the information at issue

identifies exploited targets and to disclose any related

information “would inform those targets of their vulnerabilities

and of NSA’s specific capabilities, sources and methods”); cf.

Founding Church of Scientology v. NSA, 610 F.2d 824, 831

(D.C. Cir. 1979) (holding insufficiently specific explanation that

“fail[ed] to indicate even in the slightest how agency functions

15

might be unveiled” and “lack[ed] so much as guarded specificity

as to the ‘certain functions and activities’ that might be

revealed” (quoting agency affidavit)). Indeed, we have

recognized that in some circumstances even itemizing the

information withheld could compromise secrecy in the NSA

signals intelligence context, because “the sensitive material

comprises more than just the substantive content of the

messages. Harm could follow from the disclosure of any

material that might help to identify the communications

intercepted by NSA, such as information about date, time,

origin, or manner of transmission or receipt.” Hayden, 608 F.2d

at 1385 (emphasis omitted).

In its affidavit the NSA also demonstrates that the withheld

information is properly classified under Executive Order 12958

in the interest of national security and thus logically falls within

Exemption 1. See Miller, 730 F.2d at 776; see also Ctr. for

Nat’l Sec. Studies, 331 F.3d at 927 (courts accord “substantial

weight to an agency’s affidavit concerning . . . classified status”

(quotation omitted)). The affidavit is not controverted by any

contrary evidence in the record or any evidence suggesting

agency bad faith.

As they would with the CIA, the plaintiffs here would have

the district court demand additional detail from the NSA, such

as whether the passage of time and “presumabl[e] outdat[ing of]

technology” bears on the need for continued secrecy, whether a

manner of disclosing information exists that would not reveal

details about signals intelligence targets, and why the “targets

have to be identified instead of the information being

identified.” Putting aside the fact that the NSA’s affidavit is

sufficient to answer these queries, the plaintiffs’ proposed

further judicial inquiry is not required by—indeed is even

contrary to—our precedent. “Once satisfied that proper

procedures have been followed and that the information

16

logically falls into the exemption claimed, the courts need not go

further to test the expertise of the agency, or to question its

veracity when nothing appears to raise the issue of good faith.”

Gardels, 689 F.2d at 1104 (quotation omitted). Not only have

we counseled that courts need not go further, we have held that

“the court is not to conduct a detailed inquiry” if the agency’s

statements meet the preliminary standard, as the NSA’s affidavit

here does. Halperin, 629 F.2d at 148 (emphasis added).

Finally, at oral argument counsel for the plaintiffs

complained that the agencies often use the same or similar

language in different affidavits supporting FOIA exemptions.

Plaintiffs suggested that this similarity reveals that the agencies

do not faithfully consider FOIA requests but rather issue

boilerplate responses, which should spur the court to require

more explanation. However, when the potential harm to

national security in different cases is the same, it makes sense

that the agency’s stated reasons for nondisclosure will be the

same. We are therefore not disquieted by the NSA’s similar

responses in similar cases. Certainly, an agency’s response must

logically fit the particular facts and circumstances of the case—a

response so vague that it suits every case would fail for any

number of reasons, see Hayden, 608 F.2d at 1387—but the fact

that similar exemption explanations regarding signals

intelligence targets suit similar cases about revealing such

targets is not a cause for further judicial inquiry.

2

Having overcome the plaintiffs’ objections to application of

Exemption 1, the NSA easily demonstrates that Exemption 3

also protects the withheld material from disclosure. As

explained above, under Exemption 3 the NSA need only show

that the statute claimed is one of exemption as contemplated by

Exemption 3 and that the withheld material falls within the

17

statute. See Fitzgibbon, 911 F.2d at 761-62. The NSA invoked

three statutes to support its withholdings: First, the agency

invoked section 6 of the National Security Act, which is a

statutory privilege unique to the NSA and provides that “nothing

in this Act 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.” 50 U.S.C. § 402 note. Section 6 qualifies as

an Exemption 3 statute, Hayden, 608 F.2d at 1389, and provides

absolute protection, Linder v. NSA, 94 F.3d 693, 698 (D.C. Cir.

1996). The NSA is not required to show harm to national

security under section 6, but need only demonstrate that the

withheld information relates to the organization of the NSA or

any function or activities of the agency. See Hayden, 608 F.2d

at 1390. Second, the agency invoked section 798(a)(3)-(4) of

the federal criminal code, which prohibits the unauthorized

disclosure of classified information “concerning the

communication intelligence activities of the United States” or

“obtained by the process of communication intelligence from the

communications of any foreign government.” 18 U.S.C.

§ 798(a)(3)-(4). The plaintiffs do not dispute that section 798

qualifies as an Exemption 3 statute. See, e.g., N.Y. Times Co. v.

Dep’t of Def., 499 F. Supp. 2d 501, 512-13 (S.D.N.Y. 2007)

(applying 18 U.S.C. § 798 as an Exemption 3 statute); Winter v.

NSA, 569 F. Supp. 545, 548 (S.D. Cal. 1983) (same). Third, the

agency invoked 50 U.S.C. § 403-1(i), which as explained above,

instructs the Director of National Intelligence to protect

intelligence sources and methods from unauthorized disclosure,

regardless of classification, and qualifies as an Exemption 3

statute. See supra Part II.A.2.

As is evident from our discussion regarding Exemption 1,

in its affidavit the NSA demonstrated that disclosure of the

withheld materials would reveal “information with respect to the

activities” of the NSA, 50 U.S.C. § 402 note; classified

18

information “concerning the communication intelligence

activities of the United States” or “obtained by the process of

communication intelligence from the communications of any

foreign government,” 18 U.S.C. § 798(a)(3)-(4); and

information relating to “intelligence sources and methods,” 50

U.S.C. § 403-1(i)(1). The plaintiffs’ challenge to the NSA’s

reliance on Exemption 3 fails.

III

We must also review de novo the grant of summary

judgment in favor of the DOS regarding its response to

Holdenried’s FOIA request, although this inquiry need not

detain us long. In her FOIA request to the DOS, Holdenried

specified that she sought any information about her father and

his death in Guatemala, including a list of ten related topics.

Later in the letter she stated, “Please be aware that Ms.

Holdenried made a request for documents in 1995, and received

some documentation. However, some documentation was not

submitted to her. Please regard this as a renewed request.” The

DOS found thirty-six responsive documents and released them

all to Holdenried in full. Holdenried now argues that her request

also entitled her to DOS documents concerning the agency’s

response, both initial and appellate, to her 1995 FOIA request,

or to district court review of the agency’s 1998 appellate

decision to withhold certain documents responsive to the 1995

request.

In determining whether an agency has discharged its FOIA

responsibilities, the issue we must resolve is whether the search

for documents was adequate, “and adequacy is measured by the

reasonableness of the effort in light of the specific request.”

Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). “The

burden of adequately identifying the record requested lies with

the requester.” 22 C.F.R. § 171.5(c). Holdenried’s FOIA

19

request gave no indication that she sought DOS documents

regarding the agency’s previous responses to her 1995 FOIA

request. At best, Holdenried’s 2002 request suggested that she

had sought similar documents in 1995 without complete success

and now sought the same documents again, without identifying

the parameters of her 1995 request or the documents previously

withheld or received. Such a request does not reasonably

suggest to the DOS that it should search for and disclose internal

documents arising out of the agency’s decisions concerning her

1995 request.

Nor was Holdenried entitled to judicial review of the DOS

response to her 1995 FOIA request on this record. Nowhere in

her complaint did Holdenried mention the 1995 request or in any

way suggest that she sought judicial review of the DOS response

to her 1995 request as opposed to her 2002 request, which was

the subject of the complaint. The district court therefore quite

properly concluded that “[a]ction on her [1995] request came to

an end when her appeal of that case was decided [by the DOS]

in 1998.” Larson v. Dep’t of State, No. 1:02cv01937, 2005 WL

3276303, at *25 (D.D.C. Aug. 10, 2005).

IV

Finally, we review for abuse of discretion the district

court’s decision not to conduct in camera review of the withheld

documents or the NSA’s proffered supplemental classified

declaration. See Juarez v. Dep’t of Justice, 518 F.3d 54, 60

(D.C. Cir. 2008). The plaintiffs argue that the court should have

undertaken in camera review of the withheld documents because

review can result in greater disclosure and courts should

independently verify the government’s claims of protection.

FOIA provides district courts the option to conduct in

camera review, 5 U.S.C. § 552(a)(4)(B), but “it by no means

20

compels the exercise of that option,” Juarez, 518 F.3d at 60. In

camera review is available to the district court if the court

believes it is needed “to make a responsible de novo

determination on the claims of exception.” Id. (quoting Carter

v. Dep’t of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987)). If

the agency’s affidavits “provide specific information sufficient

to place the documents within the exemption category, if this

information is not contradicted in the record, and if there is no

evidence in the record of agency bad faith, then summary

judgment is appropriate without in camera review of the

documents.” Hayden, 608 F.2d at 1387; see also Weissman v.

CIA, 565 F.2d 692, 697 (D.C. Cir. 1977). Although district

courts possess broad discretion regarding whether to conduct in

camera review, Carter, 830 F.2d at 392, we have made clear

that “[w]hen the agency meets its burden by means of affidavits,

in camera review is neither necessary nor appropriate,” Hayden,

608 F.2d at 1387. In camera inspection is “particularly a last

resort in ‘national security’ situations” like this case, Weissman,

565 F.2d at 697—“a court should not resort to it routinely on the

theory that ‘it can’t hurt,’” Ray v. Turner, 587 F.2d 1187, 1195

(D.C. Cir. 1978).

The district court here did not abuse its discretion in

declining to view the withheld documents or the proffered

supplemental classified declaration in camera. The court

concluded, and we agree, that the agencies’ affidavits standing

alone were sufficiently specific to place the challenged

documents within the exemption categories, and the plaintiffs

did not contest the contents of the withholdings or present any

evidence contradicting the affidavits or suggesting bad faith.

Summary judgment without in camera review was therefore

appropriate and not an abuse of the district court’s broad

discretion.

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V

We affirm summary judgment for the defendant agencies,

agreeing with the district court that the DOS responded

appropriately to Holdenried’s request, that the affidavits of the

NSA and the CIA were sufficient to support their reliance on

FOIA Exemptions 1 and 3, and that in camera review was not

necessary to reach this decision. The withheld materials at issue

in this case are precisely the sort of documents and information

intended to be protected from public disclosure by Exemptions

1 and 3. We deny the plaintiffs’ request for judicial notice of

articles relating to Guatemala and government secrecy because

those articles are irrelevant to our inquiry; taking notice of them

would not affect our opinion.

So ordered.