The NSA has replied to one of my FOIA requests. You can find the post about the request being made here. It was for four documents related to restrictions on the distribution of NSA intercepts inside the FBI:
1) NSA email, William L. to Karen C., “Distribution Restrictions,” 10 Dec 99
2) NSA email, William L. to Anthony L., “DoJ restrictions,” 20 Dec 99
3) NSA email, William L. to Brian C., “Dissemination of Terrorism Reporting,” 29 Dec 99
4) NSA memo, Ann D: to others, “Reporting Guidance,” 30 Dec 99
The NSA came up with a total of four reasons it was not going to give me the documents:
Your request has been processed under the provisions of the FOIA. Four documents (5 pages) responsive to your request have been reviewed by this Agency as required by the FOIA and have been found to be currently and properly classified in accordance with Executive Order 12958, as amended. These documents meet the criteria for classification as set forth in Subparagraph (c) of Section 1.4 and remain classified TOP SECRET as provided in Section 1.2 of Executive Order 12958, as amended. The documents are classified because their disclosure could reasonably be expected to cause exceptionally grave damage to the national security. Because the documents are currently and properly classified, they are exempt from disclosure pursuant to the first exemption of the FOIA (5 U.S.C. Section 552(b)(1)).
Further, this Agency is authorized by various statutes to protect certain information concerning its activities and the names of its employees. We have determined that such information exists in these documents. Accordingly, those portions are exempt from disclosure pursuant to the third exemption of the FOIA, which provides for the withholding of information specifically protected from disclosure by statute. The specific statutes applicable in this case are Title 18 U.S. Code 798; Title 50 U.S. Code 403-1(i); and Section 6, Public Law 86-36 (50 U.S. Code 402 note). No portion of the information is reasonably segregable.
In addition, Subsection (b)(2) of the FOIA exempts from disclosure matters related solely to the internal personnel rules and practices of an agency. This exemption has been held to apply to matters that are “predominantly internal,” the release of which would “significantly risk circumvention of agency regulations or statutes.” Crooker v. Bureau of Alcohol, Tobacco, and Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981). Information contained within some of the documents meets the criteria for Exemption (b)(2) protection as that statutory provision has been interpreted and applied by the Federal Judiciary. The information being protected under Subsection (b)(2) is limited to e-mail routing information that appears before the text of a message and would reveal how NSA’s information network is constructed. The release of such information could expose the network to unauthorized access and is classified CONFIDENTIAL.
Finally, information in some of the documents meets the criteria for the fifth exemption of the FOIA. This exemption applies to inter-agency or intra-agency memoranda or letters which would not be available by law to a party in litigation with the agency, protecting information that is normally privileged in the civil discovery context, such as information that is part of a predecisional deliberative process and attorney-client privileged information.
I’m hardly a hot-shot FOIA lawyer, but it occurs to me that the first exemption is the main one. The mere fact that the e-mails were once classified top secret is no bar to them being disclosed. The NSA says “their disclosure could reasonably be expected to cause exceptionally grave damage to the national security,” but the system to which they pertain has not been in use at the NSA for over seven years, so it is going to have a hard time explaining why releasing them would jeopardise national security. The other three exemptions are only partial exemptions and I’m not really interested in the people’s names or e-mail routing information.
If anybody reading this knows something about FISA and has advice to give me, please leave it in the comments. I have nearly two months to appeal and am planning on doing so.