There appears to be no FOIA exemption that would justify withholding
the key escrow databases which Treasury and NIST are building. (The
keys are not tied to any individual, so individual privacy isn't a
valid exemption. The database isn't classified. Etc.) I have asked
for a copy of each database, in toto. Letters were sent yesterday.
One is reproduced below; the other is identical except for the
addressee and minor details.
You too can do things like this. It's fun and it occasionally
produces highly useful information. Just think of something that the
government knows, and has written down on paper, that you want to
know. Ask them for it. You have the right to know. They're spending
your taxes to subjugate you, and they're required to answer, though
almost all agencies do it grudgingly. Post your request to the net,
so that we-all will know it's happening, and can be inspired to think
of other interesting things to ask for.
You don't need all the boilerplate below about exemptions and time
limits and stuff; that is to put the agencies on notice that we will
push them in court, if necessary, to be responsive. Or you can use
our boilerplate in your own requests, if you like. Alter the "media
requester" section to suit your own situation.
John
law office of
Lee Tien
1452 Curtis Street
Berkeley, California 94702
_______________
tien(a)well.sf.ca.us
voice: (510) 525-0817
fax: (510) 525-3015
February 24, 1994
Reference: KEY ESCROW DATABASE-TREASURY
Departmental Disclosure Office
Department of the Treasury
Room 1054-MT
Washington, D.C. 20220
ATTN: FOIA request
Dear Sir or Madam:
This is a request under the Freedom of Information Act [5
U.S.C. Sec. 552] on behalf of my client, Mr. John Gilmore.
I write to request a copy of all agency records or portions
thereof, in electronic or other form, which relate to the database of
escrowed key components for encryption using the key escrow
encryption method. The Attorney General announced on Friday,
February 4, 1994, that the Automated Systems Division of the
Department of the Treasury will be one of the two escrow agents.
This request includes your database of the escrowed key
components. This request also includes any ancillary information
about the database, such as data formats, procedures, standards,
access methods, memos and documents about its use, access
software, plans, etc. If the database itself is stored in encrypted
form, then this request also includes the computer programs and
keys required to access it.
We specifically request that you make the database available in
electronic form, such as on magnetic tape. We remind you that the
long-standing rule that the FOIA "makes no distinction between
records maintained in manual and computer storage systems,"
Yeager v. D.E.A., 678 F.2d 315, 321 (D.C.Cir. 1982), has recently
been amplified in Armstrong v. Executive Office of the President,
810 F.Supp. 335 (D.D.C. 1993). Any paper print-outs of electronic
records, such as e-mail, must include all information in the
electronic record. Assuming that there would be no loss of
releasable information, such as written comments made on paper
print-outs, we therefore ask you to release all responsive electronic
records in electronic, i.e., machine-readable, form.
As you know, the FOIA provides that an agency must make an
initial determination of whether to comply with a FOIA request
within ten working days of receiving the request.
If the records that you possess were originated or classified by
another organization, I ask that your organization declassify them
(if needed) and release them to me, as provided in the FOIA,
within the statutory time limits. If there is a conflict between the
statutory time limits and some regulation or policy that requires
you to refer the records, the statutory requirement takes precedence
over any Executive-branch regulation, policy or practice.
Congress placed a limit on the time which may be expended in
referrals. The FOIA explicitly provides that referrals to other
interested agencies or agency components are treated under the
provision for "unusual circumstances," and cannot justify a delay
of more than an additional 10 working days. 5 U.S.C. Sec.
552(a)(6)(B)(iii).
"[W]hen an agency receives a FOIA request for 'agency
records' in its possession it must take responsibility for processing
the request. It cannot simply refuse to act on the ground that the
documents originated elsewhere." McGehee v. C.I.A., 697 F.2d
1095, 1110 (D.C. Cir. 1983). Even records originated by other
agencies are subject to immediate release under the applicable case
law, if they were at the time of the request in the possession and
control of your agency.
Simply put, the FOIA and the case law take precedence over
executive branch regulations or practices regarding referrals. If
you do refer documents to any other agency, and they are not
provided within the time limits, we intend to litigate on this
point.
As you know, the FOIA provides that even if some requested
material is properly exempted from mandatory disclosure, all
segregable portions must be released. [5 U.S.C. Sec. 552(b)] If any
or all material covered by this request is withheld, please inform
me of the specific exemptions that are being claimed, and mark all
deletions to indicate the exemption(s) being claimed to authorize
each individual withholding. If the (b)(3) exemption is claimed,
please indicate the relevant withholding statute(s).
If any records are withheld, I request a Vaughn index or its
equivalent during the administrative process. "[T]he objective of
the Vaughn requirements, to permit the requesting party to present
its case effectively, is equally applicable to proceedings within the
agency." Mead Data Central v. Department of the Air Force, 402
F.Supp. 460 (D.D.C. 1974), remanded, 566 F.2d 242 (D.C. Cir.
1977) aff'd, 575 F.2d 932 (D.C. Cir. 1978).
"[A] person cannot effectively appeal a decision about the
releasability of documents ... if he is not informed of at
least a list of the documents to which he was denied access
... and why those decisions were made. Denial of this
information would in all likelihood be a denial of due
process as well as effectively gutting the reasons for
applying the exhaustion doctrine in FOIA cases."
Shermco Industries, Inc. v. Secretary of the Air Force, 452 F.Supp.
306, 317 n.7 (N.D. Tex. 1978); see Oglesby v. Department of the
Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing Shermco). It
should be simple to prepare a list and the claimed exemptions as
the records are processed. Disclosing such information would not
disclose any exempt information and it would make it easier to
appeal your initial determination on the merits.
In addition, I ask that your agency exercise its discretion to
release information that may be technically exempt. As you know,
the Attorney General on October 4, 1993, directed that agencies
should administer the FOIA under a presumption of disclosure, and
that information which need not be withheld should not be.
I remind you that under Chrysler v. Brown, 441 U.S. 281, 293
(1979), the 5 U.S.C. Sec. 552(b) exemptions are discretionary, not
mandatory. An agency can generally choose to release exempt
information. This discretionary review process for withholding
cannot take precedence over the law, which requires a response
within specified time limits. Moreover, that discretion, according
to the Attorney General's October 4, 1993 memorandum, must be
exercised in accordance with a presumption of disclosure. Even if
a substantial legal basis exists for withholding, information is not
to be withheld unless it need be.
I also request that fees be waived because Mr. Gilmore should
be deemed a media requester by your agency for FOIA purposes,
and because the public interest would be furthered by a fee waiver.
The D.C. Circuit Court of Appeals has held that "a
representative of the news media is, in essence, a 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." National
Security Archive v. Department of Defense, 880 F.2d 1381, 1387
(D.C.Cir. 1989), cert. denied 494 U.S. 1029 (1990).
This definition applies strongly to Mr. Gilmore, who is a co-
founder and director of the Electronic Frontier Foundation (EFF), a
Washington, D.C.-based public interest organization. The EFF has
been intimately involved in policy discussions concerning key
escrow encryption and distributes information to the public by
newsletter and electronic distribution about this and other topics
involving civil liberties. Mr. Gilmore is also a skilled computer
programmer who has spent the last ten years distributing his work
for public use to a worldwide audience on the Internet and the
Usenet.
Mr. Gilmore is also entitled to a fee waiver because "disclosure
of the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations
or activities of the government and is not primarily in the
commercial interest of the requester."
There exists a tremendous public debate over the wisdom and
legality of the key escrow encryption plan, as I am sure you are
well aware. Your agency's database is clearly an operation of the
government in which the public has a great interest. The Vice
President himself has publicly expressed doubt about the
delegating key escrow responsibilities to agencies which are part of
the executive branch. The information requested herein relates to
such doubt. This information is not yet in the public record, so the
request makes a substantial contribution to the public
understanding.
This request is not primarily in the commercial interest of Mr.
Gilmore. He will not benefit financially from this information in
any way. He intends to disseminate the requested records widely
and freely to inform this public debate.
Should there be any problem in this regard, Mr. Gilmore
promises to pay up to $1000 in fees, and you should therefore
begin processing of this request without fee-related delays.
As provided under the FOIA, I will expect a reply within ten
(10) working days.
Sincerely,
Lee Tien
Attorney at Law
On behalf of Mr. John Gilmore
