NSA FOIA Processing Notes for 5 oldest requests

To Whom It May Concern:

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

all NSA records referencing the five oldest FOIA and Privacy Act requests which are still being processed that contain remarks, comments, notes, explanations, etc. made by NSA personnel or contractors about the processing of these requests (and appeals, if appropriate), the invocation of exemptions, or related matters. This is to include any analysts' notes made during the processing of the requests, any standard worksheets completed by the analysts, any justifications for exemption invocations or other supporting documentation provided to the Appeals Authority, and any correspondence referencing the requests, including tasking orders, emails, and coordination documentation. However, any records previously released to the original requesters in unredacted form may be excluded from this request. Additionally, please provide the initial request letters for the 5 oldest open FOIA/PA requests.

When processing this request, please note that the D.C. Circuit has previously held that agencies have a duty to construe the subject material of FOIA requests liberally to ensure responsive records are not overlooked. See Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995). Accordingly, you are hereby instructed that the term “record” includes, but is not limited to: 1) all email communications to or from any individual within your agency; 2) memoranda; 3) inter-agency communications; 4) sound recordings; 5) tape recordings; 6) video or film recordings; 7) photographs; 8) notes; 9) notebooks; 10) indices; 11) jottings; 12) message slips; 13) letters or correspondence; 14) telexes; 15) telegrams; 16) facsimile transmissions; 17) statements; 18) policies; 19) manuals or binders; 20) books; 21) handbooks; 22) business records; 23) personnel records; 24) ledgers; 25) notices; 26) warnings; 27) affidavits; 28) declarations under penalty of perjury; 29) unsworn statements; 30) reports; 31) diaries; or 32) calendars, regardless of whether they are handwritten, printed, typed, mechanically or electronically recorded or reproduced on any medium capable of conveying an image, such as paper, CDs, DVDs, or diskettes.

Furthermore, in line with the guidance issued by the Department of Justice (“DOJ”) on 9 September 2008 to all federal agencies with records subject to FOIA, agency records that are currently in the possession of a U.S. Government contractor for purposes of records management remain subject to FOIA. Please ensure that your search complies with this clarification on the effect of Section 9 of the OPEN Government Act of 2007 of the definition of a “record” for purposes of FOIA. In addition, the NSA should not interpret this request to exclude correspondence sent to outside third parties. Please also consider this letter an affirmative rejection of any limitation of your search to NSA-originated records or to records created prior to the date of this request. To the contrary, I stipulate that this search should be restricted to records created prior to the date of the first substantive review of this request by NSA FOIA personnel (as opposed to the date that receipt of the request was acknowledged by the NSA).
Therefore, in conclusion, the NSA is hereby instructed to interpret the scope of this request in the most liberal manner possible short of an interpretation that would lead to a conclusion that the request does not reasonably describe the records sought. If, even given these restrictions, the NSA still determines that this request does not reasonably describe the records sought, it is instructed to contact me pursuant to 32 C.F.R. § 1900.12(c) to discuss reformulation of the request before rejecting the request as overbroad, vague, or unduly burdensome.

If you deny all or part of this request, please cite the specific exemptions you believe justify your refusal to release the information or permit the review and notify us of your appeal procedures available under the law. In excising material, please “black out” rather than “white out” or “cut out.” In addition, I draw your attention to President Obama’s 21 January 2009 Memorandum for the Heads of Executive Departments and Agencies, directing federal agencies to adopt a presumption in favor of disclosure and stating that government information should not be kept confidential “merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

I hereby request a waiver of all fees in accordance with my status as a representative of the news media. I have the ability to disseminate information on a wide scale, and intend to use information obtained through FOIA in original works. According to 5 U.S.C. § 552(a)(4)(A)(ii), codifying the ruling of Nat’l Security Archive v. Dep’t of Defense, 880 F.2d 1381 (D.C. Cir. 1989),

the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

I have clear intent to “publish[ ] or otherwise disseminate[ ] information to the public.” Id. at 1386 (quoting the following legislative history: 1) “It is critical that the phrase ‘representative of the news media’ be broadly interpreted if the act is to work as expected. . . . In fact, any person or organization which regularly publishes or disseminates information to the public . . . should qualify for waivers as a ‘representative of the news media.’” 132 Cong. Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis in original quotation); 2) “A request by a reporter or other person affiliated with a newspaper, magazine, television or radio station, or other entity that is in the business of publishing or otherwise disseminating information to the public qualifies under this provision.” 132 Cong. Rec. H9463 (Oct. 8, 1986) (emphasis in original quotation)). 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. The records sought in this particular request will be used in reports discussing the processing of FOIA requests by federal agencies. Therefore, in accordance with the Freedom of Information Act and relevant case law, I should be considered a representative of the news media. Similarly, my request for a public interest fee waiver should be granted, for the reasons elucidated below.

There can be no question that the information sought would contribute to the public’s understanding of government operations or activities and is in the public interest. FOIA is one of the key mechanisms by which the American public can access government information, but very little is known about the behind-the-scenes processing of requests, especially in such agencies as the NSA. What factors are considered and what weight is assigned them will significantly contribute to the public’s understanding of government operations and activities, and by analyzing this representative sampling of FOIA requests I will be able to synthesize this information into a form that current and future FOIA requesters will hopefully find useful.

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 request that any documents or records produced in response to this request be provided in electronic (soft-copy) form wherever possible. Acceptable formats are .pdf, .doc, .jpg, .gif, .tif. Please provide soft-copy records by email or on a CD if email is not feasible. However, I do not agree to pay an additional fee to receive records on a CD, and in the instance that such a fee is required, I will accept a paper copy of responsive records.

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,

Jason Smathers
Filed via MuckRock.com
185 Beacon St. #3
Somerville, MA 02143

Daytime: (857) 488- 3081
E-mail: requests@muckrock.com

I requested processing according to the news media fee category. This is appropriate for the following reasons:

1) The processing of Freedom of Information Act requests is of current
interest to the public. I state this by knowledge and belief as a
represenative of the news media. The information requested in this
FOIA request is of public interest.

2) I plan to write about FOIA processing, specifically about backlog
in processing. I will be taking the records responsive to this FOIA
request and turning it into a distinct work using my editorial skills.
Please note, I plan to write on the subject, not simply post the
records.

3) I have an agreement with muckrock.com to provide news articles
concerning freedom of information issues. I have been previously
published on this topic as part of this agreement. You can view my
previously published article here:
http://www.muckrock.com/blog/requestors-voice-in-bullhead-city-arizona-freedom-of-information-reform-slow-going/
My agreement for continued publishing and my previously published
article on this topic demonstrate that the informaiton will be
distributed to the general public.

Please change my fee category from "all other" to "news media." If you refuse to do so, please provide proper appeal information and explain in what way you believe my request to be lacking the merit required for "news media" billing.

Regards,
Jason Smathers