Wednesday, April 16, 2014
 

FOIAing the NSA: What you can get, what you can't and where to start

A Traveler's Guide to Spook Country

FOI Requests:

Unsurprisingly, the National Security Agency, the Department of Defense agency charged with collecting and analyzing foreign intelligence, is one of the more difficult federal agencies to coax information out of. Want to know if they have files on American activists? With the NSA, unlike the FBI, you're out of luck. Looking for more mundane information, like parking lot complaints? Better be prepared to pony up over $1,200 in search and processing fees.

It's challenging to pry documents out of the NSA, but not impossible. Recently, MuckRock received a copy of the NSA's guide to Googling and other open-source intelligence methods, for example. One of our most prolific users, Jason Smathers, filed a request for the oldest open FOIA requests being processed by the NSA and received 4 pages back.

So how can FOIA reasonably be used to better understand the NSA's role in national security? Here are some starting points when crafting your request strategy.

Avoid asking for an individual's data

It's tempting to be direct and ask for information about individuals, such as the NSA's file on Edward Snowden. Two factors make such requests highly unlikely to succeed. The first is the Privacy Act, which, working alongside the Freedom of Information Act, was enacted to balance individual privacy against public disclosure--most people wouldn't want, for example, the IRS to release full tax returns or other sensitive data.

The second factor is that details about individuals typically fall under the NSA's Glomar policy, which is the famous "neither confirm nor deny" response. Here's an example of that response, which MuckRock received when we asked for the NSA file on Aaron Swartz.

In our request for Aaron's file, you'll see that the NSA will at least look for, if not necessarily release, certain documents related to employment by the agency. If you're interested in what the NSA would release, I have filed a request with the NSA for employee files on Edward Snowden that should fall outside of investigative exemptions. Follow along and see updates to the request as soon as we get them.

Follow the government's lead

If you carefully parse statements from public officials and even press releases, there's often troves of information below the surface that's releasable. For instance, in order to talk about the recent PRISM leaks, the NSA took the step of declassifying at least some information on the program. Those classification and public statements often result in the creation of talking points documents, which are generally releasable in their entirety, since they are created for the public (though the NSA in particular has found some novel use of exemptions in this regard). Tom Nash filed a request for recent NSA talking points, while I requested documents related to the NSA's Utah Data Center public ribbon cutting event.

While all this material is created for possible public release, a lot of it isn't released unless someone asks the right questions. If it is released, it's often overlooked. FOIA provides one effective avenue to give this information a second (or first) look.

Be prepared to play the game

For first-time (and even long-time) filers, FOIA can feel like an exercise in frustration. You'll get better results and have more fun if you treat it like a puzzle and don't get caught up with the success or failure of any one request: of 51 requests MuckRock users have filed with the NSA, only 6 have been succesfully completed, with 15 rejected outright on various grounds. But if you take advantage of administrative appeals, aggressively look for openings, and remain patient and persistent, you can make important gains.

You can even get clever and look for ways to find out what is blocking your requests by asking for the request processing files:

And hey, the good news is, at 86 days, the NSA's average response time is pluckier than a whole host of other agencies, including the FBI, the TSA and U.S Forest Service. And you're not alone: MuckRock is happy to help file and track your request and we now offer a free place to get your public records and FOIA questions answered by a community of government document geeks.

Have other tips, questions, or suggestions? Get in touch via e-mail and on Twitter at @MuckRockNews.

Image courtesy of NSA.gov.

 
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