Re: Cypherpunks FOIAs [was Re: The Cypherpunk's 1995 Archive has been forged, and what are we going to do about it? (was:Re: Could someone add news of Cypherpunks Archive...]
‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, November 25, 2019 6:52 PM, jim bell <jdb10987@yahoo.com> wrote: ...
the denial using Glomar exception is here: https://cdn.muckrock.com/foia_files/2019/02/11/1-29-19_MR67282_REJ-G_106095....
This document doesn't say why the Glomar exception is applicable. It does not even include the term "Glomar". Frustratingly, in this PDF format I cannot select and copy text. Why???
welcome to FOIA! the agencies do this on purpose, usually returning scanned images of documents rather than searchable text or annotated PDFs. this is a "feature" for them, not a bug :) [ almost the entire CIA CREST archive is like this, once they released it from the confines of the National Archives in Maryland ] regarding Glomar, any time "can neither confirm nor deny" is the response, it is categorized as "Glomar" denial.
How would the (re-)disclosure of these Cypherpunks emails, which were originally disseminated to thousands of people, including (presumably) foreigners, result in "identifiable or describable exceptionally grave damage to the national security"? The simple answer is, 'No way in hell!!!'. That response was deliberately wrong.
agreed; again, typical of FOIA - blanket denials, and upon appeal, more specific denials. (and maybe, if you're lucky, a partial response!)
This is still true. A re-filing might be better done in another person's name, to ensure that the concepts of "collateral estoppel" and "res judicata" aren't used to reject the claim a second time.
hey Ryan! ;) (MuckRock has a clone request feature. wink wink nudge nudge...)
Given that recent case out of the Northern District of California, it seems likely that a better tactic would be to have somebody else file essentially the same FOIA application in the Northern District of California, citing that precedent, and then have the right to appeal the agency's denial(s) to that California district. However, I see no reason that both tactics could not be pursued, in parallel. Except, that the last time I heard of what it was, a District Court docket fee was $350, but it might have changed. Getting a waiver of the docket fee ("In Forma Pauperis") might be possible, but it might merely be in a form which delays the payment, not completely waives it.
It would also be useful to pre-load the FOIA requests with arguments as to why things like the Glomar exception shouldn't apply: The Cypherpunks mailing list was never "secret"; it was always open to anyone who wanted to subscribe to it; everyone who posted to it knew that their postings would be sent to hundreds (eventually thousands) of subscribers. In principle, any person who wanted a copy of the entire (or a portion) of the Cypherpunks email database could have 'easily' achieved that by simply subscribing to it: It certainly isn't clear why the collection of Cypherpunks emails, all of which were public and moreover were fully intended to be public, would be a 'matter of national security'. Make them WORK for the exceptions! And, if re-filed in the Northern District of California, cite that as relevant precedent.
having someone file in Northern District of California, with preemptive refutation of Glomar applicability is a good idea. paging all FOIA nerds! best regards,
On Monday, November 25, 2019, 11:15:34 AM PST, coderman <coderman@protonmail.com> wrote: ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, November 25, 2019 6:52 PM, jim bell <jdb10987@yahoo.com> wrote: ...
the denial using Glomar exception is here: https://cdn.muckrock.com/foia_files/2019/02/11/1-29-19_MR67282_REJ-G_106095....
This document doesn't say why the Glomar exception is applicable. It does not even include the term "Glomar". Frustratingly, in this PDF format I cannot select and copy text. Why???
welcome to FOIA! the agencies do this on purpose, usually returning scanned images of documents rather than searchable text or annotated PDFs. this is a "feature" for them, not a bug :)
[ almost the entire CIA CREST archive is like this, once they released it from the confines of the National Archives in Maryland ]
regarding Glomar, any time "can neither confirm nor deny" is the response, it is categorized as "Glomar" denial.
How would the (re-)disclosure of these Cypherpunks emails, which were originally disseminated to thousands of people, including (presumably) foreigners, result in "identifiable or describable exceptionally grave damage to the national security"? The simple answer is, 'No way in hell!!!'. That response was deliberately wrong.
agreed; again, typical of FOIA - blanket denials, and upon appeal, more specific denials. (and maybe, if you're lucky, a partial response!)
This is still true. A re-filing might be better done in another person's name, to ensure that the concepts of "collateral estoppel" and "res judicata" aren't used to reject the claim a second time.
hey Ryan! ;) (MuckRock has a clone request feature. wink wink nudge nudge...)
Given that recent case out of the Northern District of California, it seems likely that a better tactic would be to have somebody else file essentially the same FOIA application in the Northern District of California, citing that precedent, and then have the right to appeal the agency's denial(s) to that California district. However, I see no reason that both tactics could not be pursued, in parallel. Except, that the last time I heard of what it was, a District Court docket fee was $350, but it might have changed. Getting a waiver of the docket fee ("In Forma Pauperis") might be possible, but it might merely be in a form which delays the payment, not completely waives it.
It would also be useful to pre-load the FOIA requests with arguments as to why things like the Glomar exception shouldn't apply: The Cypherpunks mailing list was never "secret"; it was always open to anyone who wanted to subscribe to it; everyone who posted to it knew that their postings would be sent to hundreds (eventually thousands) of subscribers. In principle, any person who wanted a copy of the entire (or a portion) of the Cypherpunks email database could have 'easily' achieved that by simply subscribing to it: It certainly isn't clear why the collection of Cypherpunks emails, all of which were public and moreover were fully intended to be public, would be a 'matter of national security'. Make them WORK for the exceptions! And, if re-filed in the Northern District of California, cite that as relevant precedent.
having someone file in Northern District of California, with preemptive refutation of Glomar applicability is a good idea.
paging all FOIA nerds!
Actually, at this point it should be proper to take this to Federal Court, and demand the heaviest sanctions possible against the agency involved and the individuals.https://www.justice.gov/jm/eousa-resource-manual-137-sanctions-violating-foi... 137. The burden of proof is on the government to justify non-disclosure: It is not on the FOIA requestor to justify disclosure. https://www.usbr.gov/foia/ "FREEDOM OF INFORMATION ACT AND PRIVACY ACT What is FOIA? The Freedom of Information Act (FOIA) established a presumption that records in the possession of Federal agencies are accessible to the public. Before FOIA was passed in 1966, the individual had to establish a right to examine these Government records. With passage of the FOIA, the burden of proof shifted from the individual to the Government. The "need to know" standard has been replaced by a "right to know" doctrine. FOIA set standards for determining which records must be disclosed and which records can be withheld. The law also provides administrative and judicial remedies for those denied access to records." [end of quote] Example litigation:https://www.citizen.org/wp-content/uploads/01cv1974plfs_sjmotion.pdf The Government, in the Cypherpunks FOIA case, had the burden of showing why the emails should not be disclosed. It didn't do that; it simply cited the boilerplate Glomar claim, and didn't cite the specific details justifying that conclusion. The claim for punitive sanctions should point out that, as well as my argument that nothing within the Cypherpunks emails could possibly be argued to endanger "national security". The government should be challenged to explain why its response wasn't completely and outrageously frivolous: It could do this, at least arguably, if it crafted a justification NOW that it represents as a non-frivolous assertion, making sure that it addresses my arguments. It will simply be completely unable to do that!. Whether thre Government could have crafted a non-frivolous argument in the absence of my arguments is an interesting, though unnecessary, question. Another is to apply for Rule 11 sanctions: https://www.jstor.org/stable/1290076?seq=1 Jim Bell
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jim bell