                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 09-4440
                                    ___________

                              DAVID V. HOUGHTON,
                                           Appellant

                                          v.

                        NATIONAL SECURITY AGENCY
                     ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                         (D.C. Civil Action No. 09-cv-2385)
                     District Judge: Honorable Faith S. Hochberg
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 4, 2010

           Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges

                            (Opinion filed : May 05, 2010)

                                    ___________

                                     OPINION
                                    ___________


PER CURIAM

      David V. Houghton appeals from the order of the United States District Court for

the District of New Jersey granting Defendant’s motion for summary judgment in his
lawsuit brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We

will affirm.

                                            I.

       In October 2008, Houghton submitted a request to the National Security Agency

(“NSA”) for documents pursuant to the FOIA. Specifically, he requested “all documents

in which my name is mentioned, including any investigations of me; any interviews of

others regarding me; any investigations of a group to which I belonged and am mentioned

as a member; and any records in which my name is mentioned but I was not a direct

subject of an investigation.” (Supp. Appx. at 19.) Houghton’s request was reviewed by

an NSA official who determined that the information is exempt from disclosure under the

first and third exemptions of the FOIA. See 5 U.S.C. § 552(b)(1) (“Exemption 1”); 5

U.S.C. § 552(b)(3) (“Exemption 3”).

       In a November 2008 letter, the NSA informed Houghton that the NSA could

neither confirm nor deny whether intelligence records relating to him exist, or whether

any specific technique or method was employed in those efforts. The letter further

informed Houghton of his right to appeal the denial of his request through the Agency’s

appeal process. Houghton subsequently appealed and the NSA denied the appeal in an

April 2009 letter. The following month, Houghton filed a complaint in the District Court

alleging that the NSA improperly denied his FOIA request.

       In August 2009, Defendant moved for summary judgment, supporting its motion



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with the declaration of NSA Deputy Associate Director for Policy Records Dianne M.

Janosek (“the Janosek Declaration”), who is responsible for processing all of the

Agency’s FOIA requests. Houghton filed a cross-motion for summary judgment and

response to the NSA’s motion. On October 20 2009, the District Court granted the

NSA’s motion and denied Houghton’s cross-motion. Houghton filed a timely appeal.

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291. We employ a two-tiered test in

reviewing the District Court’s order granting summary judgment in proceedings seeking

disclosure under FOIA. First, we determine whether the District Court had an adequate

factual basis for its decision. See Abdelfattah v. United States, 488 F.3d 178, 182 (3d

Cir. 2007) (per curiam) (citing McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir.

1993)). If an adequate factual basis exists, we then decide whether the District Court's

determination was clearly erroneous. See id. (citations omitted). We will reverse only

“if the findings are unsupported by substantial evidence, lack adequate evidentiary

support in the record, are against the clear weight of the evidence or where the district

court has misapprehended the weight of the evidence.” Id. (citing McDonnell, 4 F.3d at

1242; quoting Lame v. United States Dep’t of Justice, 767 F.2d 66, 70 (3d Cir. 1985)).

                                             III.

       Upon review of the record, we find that the District Court properly granted the

NSA’s motion for summary judgment. The Janosek Declaration provided an adequate



                                              3
basis for the District Court to conclude that the NSA established that it properly invoked

FOIA Exemptions One and Three in response to Houghton’s FOIA request.1

       Exemption One of the FOIA exempts from disclosure matters 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.” See 5 U.S.C. § 552(b)(1). In order to invoke

Exemption One, the Agency must provide “detailed and specific” information

demonstrating both why the material has been kept secret and why such secrecy is

allowed by the terms of an existing Executive Order. See Campbell v. Dep’t of Justice,

164 F.3d 20, 30 (D.C. Cir. 1998). In the context of a national security exemption to

disclosure under FOIA Exemption One, courts “afford substantial weight to an agency’s

affidavit concerning the details of the classified status of the disputed record.” Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

       We agree with the District Court that the NSA met its burden. As explained in the

detailed Janosek Declaration, the applicable Executive order that establishes classification

of information and the treatment of properly classified information is Executive Order

12958, 60 Fed. Reg. 19825 (Apr. 17, 1995), as amended by Executive Order 13292, 68

Fed. Reg. 15315 (Mar. 25, 2003). Section 1.1(a)(4) of Executive Order 12958, as




   1
     It is undisputed that Houghton’s request was reviewed by an appropriate NSA
official.

                                              4
amended, states that an agency may classify information that fits into one or more of the

Executive Order’s categories for classification when the appropriate classification

authority “determines that the unauthorized disclosure of the information reasonably

could be expected to result in damage to the national security.” 68 Fed. Reg. 15315

(March 25, 2003).2 Section 1.4(c) of Executive Order 12958 provides that information

may be considered for classification where it concerns, inter alia, intelligence activities,

intelligence sources or intelligence methods. Id.

        Here, the Agency official who reviewed Houghton’s request reasonably

determined that the information sought by Houghton could reveal information about

intelligence activities, sources and methods, including intelligence targeting, priorities,

and capabilities, and, therefore, falls within the category of classified information found

in Section 1.4.(c) of the Executive Order. (Supp. App. at 14-15.) Additionally, the

Agency official determined that confirming the existence or nonexistence of the

information sought by Houghton would reveal information that is currently classified

CONFIDENTIAL pursuant to the Executive Order and would allow individuals to

accumulate information and draw conclusions about the NSA’s technical capabilities.

(Id.)

        Although Houghton argues in his brief that his information should be released to



   2
    Houghton appears to argue that the Executive Order is no longer valid because
“George W. Bush is no longer president.” (App. Br. at 1.) However Executive Order
12958, as amended, has not been repealed.

                                              5
him because he is “no threat to national security,” see App. Brief. at 3, as explained in the

Janosek Declaration, the NSA cannot respond to each request for information in isolation,

but must assume that the United States’s adversaries will examine all released

information together. (Supp. App. at 15.) Accordingly, we find that the District Court

had an adequate factual basis for determining that the NSA properly denied Houghton’s

FOIA request pursuant to Exemption One and that the determination was not clearly

erroneous. See Abdelfattah, 488 F.3d at 182.

       We further conclude that the District Court correctly determined that the NSA

properly invoked Exemption Three in denying Houghton’s request. This exemption

protects the release of information that is specifically exempt from disclosure by statute.

See 5 U.S.C. § 552(b)(3). To evaluate an Agency’s Exemption Three claim, a court must

determine whether the claimed statute is a statute of exemption under FOIA, and whether

the withheld material satisfies the criteria of the exemption statute. CIA v. Sims, 471

U.S. 159, 167 (1985).

       As specified in the Janosek Declaration, the NSA relies in this case on Section

6 of the National Security Agency Act of 1959, Pub. L. No. 86-36, § 6, 73 Stat. 63, 64,

codified at 50 U.S.C. § 402 note, which provides that the NSA cannot be compelled to

disclose information regarding the organization, functions, or activities of the NSA. It is

well-established that Section 6 “is a statute qualifying under Exemption 3.” See The

Founding Church of Scientology of Washington, D.C., Inc. v. Nat’l Security Agency, 610



                                              6
F.2d 824, 828 (D.C. Cir. 1979); accord Hayden v. Nat’l Security Agency, 608 F.2d 1381,

1389 (D.C. Cir. 1979). Section 6 reflects a “congressional judgment that in order to

preserve national security, information elucidating the subjects specified ought to be

safe from forced exposure.” Church of Scientology, 610 F.2d at 828. Furthermore,

“[t]he protection afforded by section 6 is, by its very terms, absolute. If a document

is covered by section 6, NSA is entitled to withhold it. . . .” Linder v. Nat’l Security

Agency, 94 F.3d 693, 698 (D.C. Cir. 1996). The NSA is not required to demonstrate

specific harm to national security when invoking this statutory privilege, but only to

show that the information relates to its activities. Hayden, 608 F.2d at 1390.

       As explained in the Janosek Declaration, the NSA “cannot acknowledge the

existence or non-existence of the information sought by [Houghton] because such a

response would reveal NSA’s organization, functions and activities by revealing whether

NSA did or did not possess intelligence information on [Houghton]. It could also reveal

the methods by which NSA conducts its cryptologic activities.” (Supp. App. at 17.)

Because Houghton has made no argument nor stated any facts controverting NSA’s

claim, we find that the District Court properly concluded, based on the evidence, that the

NSA properly invoked Exemption Three.

       We will affirm the judgment of the District Court.




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