NSA Contracts with Packet Forensics

Heather Akers-Healy filed this request with the National Security Agency of the United States of America.
Tracking # 3898
Est. Completion None
Status
Awaiting Appeal
Tags

Communications

From: Heather Akers-Healy

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

Copies of contracts with Packet Forensics, LLC and related services over the past 5 years. If retrieving the contracts themselves is too burdensome please provide a list of contracts. Please include any processing notes made in completing this request.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Heather Akers-Healy

From: National Security Agency

An acknowledgement letter, stating the request is being processed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Sept. 11, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Sept. 11, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #74833.

Thank you for your help.

From: National Security Agency

A cover letter granting the request and outlining any exempted materials, if any.

From: National Security Agency

A copy of documents responsive to the request.

From: Heather Akers-Healy

To Whom it May Concern:

This letter is to appeal the b(4) redactions on contracts produced in response to FOIA request number 74833. The redactions in question appear to be descriptions of the services provided under the contracts and were redacted under the trade secrets exemption. According to the most recent guidance for exemption 4, courts have adopted the definition from Public Citizen Health Research Group v. FDA:

(Quote below from [http://www.justice.gov/oip/foia_guide09/exemption4.pdf])
In Public Citizen, a "trade secret" was more narrowly defined as
"a secret, commercially valuable plan, formula, process, or device
that is used for the making, preparing, compounding, or processing
of trade commodities and that can be said to be the end product
of either innovation or substantial effort." This definition also
incorporates a requirement that there be a "direct relationship"
between the trade secret and the productive process.

It is highly unlikely such information about the productive process appears on these contracts. The items on the contract are likely product names and not an in depth description of how the products are manufactured or designed, therefore the trade secrets exemption does not apply.

Additionally, the commercial/financial exemption should not apply because the information is not confidential:

(Quote below from [http://www.justice.gov/oip/foia_guide09/exemption4.pdf])
To summarize, commercial or financial matter is "confidential" for
purposes of the exemption if disclosure of the information is likely
to have either of the following effects: (1) to impair the Government's
ability to obtain necessary information in the future; or (2) to cause
substantial harm to the competitive position of the person from whom
the information was obtained.

To address point 1, there is no reason why disclosure of the product description would "impair the Government’s ability to obtain necessary information in the future.” On point 2, Packet Forensics is well known as a supplier of interception devices and other computer network appliances, and many of their products are publicly advertised on their website. Information about the products they supply is not confidential and this does not appear to have harmed their competitive position. In 2010 their company spokesperson was quoted as saying “The technology we are using in our products has been generally discussed in internet forums and there is nothing special or unique about it."(http://www.wired.com/threatlevel/2010/03/packet-forensics/)

I believe the information withheld under the b(4) exemption was erroneously redacted and should have been disclosed. Please re-release these contracts without the b(4) redactions.

Thank you for your consideration of this appeal.

Sincerely,
Heather Akers-Healy

From: National Security Agency

A letter stating that the request appeal has been received and is being processed.

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