NSA Ordered to Look Harder for Records

WASHINGTON (CN) - A federal judge dismissed most, but not all, of the National Security Agency's requests to dismiss a reporter's FOIA request on federal surveillance of judges.

Jason Leopold, formerly with Al-Jazeera America and now with Vice News, filed two FOIA requests for NSA and FBI "surveillance of federal and state judges."

The NSA and the Department of Justice's Office of Legal Counsel responded that they had no such records.

They sought summary judgment and dismissal. Leopold claims they failed to conduct adequate searches.

U.S. District Judge Tanya S. Chutkan ruled that while she "agrees with defendants on most of the issues raised by Leopold, the court finds that on a small number of issues, defendants have failed to conduct an adequate search or failed to adequately explain the basis for their search."

Leopold's lawyer Jeffrey Light told Courthouse News: "That's why we asked them to do a further search, because we hope it will reveal documents."

Leopold's March 2014 FOIA request to the NSA sought "disclosure of any and all National Security Agency policies, memoranda, training materials and guidance about the propriety of surveilling federal state judges."

His request to the DOJ's Office of Legal Counsel sought "any and all memoranda and legal opinion" related to spying on judges.

He said he filed the requests after questions were raised about whether federal officials had any of their telephone metadata swept up by NSA surveillance programs.

Chutkan ordered the NSA to search the United States Signals Intelligence Directive System for relevant documents, or claim an exemption, after Leopold said the system could contain documents he sought.

Chutkan ordered the Office of Legal Counsel to search for draft documents, finding that it searched only for "final legal opinions and memoranda," but not drafts of any such documents.

She also ordered the Office of Legal Counsel to indicate whether it found any records "or located some records that were deemed non-responsive."

But the agencies have no obligation to hand over non-responsive documents that turn up while processing a FOIA request.

But some FOIA experts are skeptical whether the agencies will follow through.

"Can you trust these agencies?" asked D.C. attorney James Klimaski, who has worked on FOIA cases. "No. Is it possible that these agencies would have an interest in spying on judges? Possibly, I mean judges are important."

The question, Kimaski said, is whether they will admit it.

"If they find a document, they're admitting they're spying on Americans, which is of course illegal," he said.

The NSA and DOJ declined to comment.

Leopold is well-known for barraging the government with FOIA requests. He claims that one federal agency, which he refused to identify, called him an "FOIA terrorist." He embraced the name.

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