Inquiry re. how to handle Glomar reply to FOIA request

Tue Jul 7 19:08:38 PDT 2015

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A while back (specifically, on 6/01/2015) I sent in a FOIA request to
the NSA, requesting, in part, records about myself that "would have
been collected by the NSA under programs authorized by Sections 206
and 215 of the USA PATRIOT Act, and Section 6001(a) of the IRTPA,
aforementioned programs and sections which are now expired as of the
date of this request (June 1, 2015)."

In essence, I figured, since the underlying legal authority for the
program had lapsed (however briefly), there was no time like that
present moment to file a FOIA request. And so, I did, not using USPS
mail, but a digital service to ensure it would arrive timely.

My request was actually rather lengthy; that was just a small part,
and I requested any NSA records collected on my person as a result of
use of Sections 206 or 215 of the USA PATRIOT Act, or Section 6001(a)
of the IRTPA, from Oct. 26, 2001 to the date of expiration and sunset
of those Sections on midnight May 31st 2015.

(For those who are trying to remember the timeline of what ended up
replacing all that, the USA Freedom Act was signed into law on June 2,


The NSA failed to respond within the 20 business days required by
federal law and sent back a "Glomar response."  Technically, as of
today, I only have 49 days left to write and send an appeal (based on
the date when they sent me their Glomar reply).


if you have ever done a SUCCESSful appeal of a Glomar response, please
reply back to me and let me know (give me some advice, etc).  Thanks
in advance.

I've copied a portion of the letter they sent below:

"As you may also be aware, there has been considerable coverage of two
NSA intelligence programs in the press /media. Under Sec. 215 of the
USA PATRIOT Act, as authorized by the Foreign Intelligence
Surveillance Court NSA may acquire telephone metadata, such as the
telephone numbers dialed and length of calls, but not the content of
calls or the names of the communicants. Under Sec. 702 of the FISA,
with appropriate authorization, NSA may target non-US. persons
reasonably believed to be located outside the United States for
foreign intelligence
purposes. Under the FISC-authorized Sec. 215 authority, NSA cannot
review any metadata unless strict requirements are met, the data may
be queried only when there is a reasonable suspicion, based on speci?c
facts, that a phone number is associated with a foreign terrorist
organization. Likewise, under Sec. 702, there are
strict controls approved by the FISC to help ensure that no US. person
is targeted
and FISC-approved minimizations procedures to ensure the protection of
any information concerning U.S. persons that may be incidentally acquire
Although these two programs have been publicly acknowledged, details
about them remain classified and /or protected from release by
statutes to prevent harm to the national security of the United
States. To the extent that your request seeks any information on you
in relation to NSA intelligence programs, or in relation to any
specific methods or means for conducting the programs, we cannot
acknowledge the existence or non-existence of such information. Any
positive or negative response on a request-by-request basis would
allow our adversaries to accumulate information and draw conclusions
about technical capabilities, sources, and methods. Our adversaries
are likely to evaluate all public responses related to these programs.
we to provide positive or negative responses to requests such as
yours, our adversaries compilation of the information provided would
reasonably be expected to cause exceptionally grave damage to the
national security.

Therefore, your request is denied because the fact of the existence or
non-existence of responsive records is a currently and properly
classified matter in accordance with Executive Order 13526, as set
forth in Subparagraph of Section 1.4. Thus, your request is denied
pursuant to the first exemption of the FOIA, which provides that the
FOIA does not apply to matters that are specifically authorized
under criteria established by an Executive Order to be kept secret in
the interest of national defense or foreign relations and are properly
classified pursuant to such Executive Order.

Moreover, the third exemption of the FOIA provides for the withholding
of information specifically protected from disclosure by statute.
Thus, your request is also denied because the fact of the existence or
non-existence of the information is exempted from disclosure pursuant
to the third exemption. The specific statutes
applicable in this case are: Title 18 US. Code 798; Title 50 US. Code
3024(i); and
Section 6, Public Law 86?36 (50 US. Code 3605).

Paragraph 3.6(a) of Executive Order 13526 specifically authorizes this
type of
response, also known as a Glomar response, to a request made under the
or the mandatory review provisions of this Order. The statutes cited
above under the
third exemption of the FOIA would also apply to the denial of the fact
of the existence
or non-existence of the information if sought under the PA.

The Initial Denial Authority for NSA information is the Associate
Director for
Policy and Records, David J. Sherman. As your request is being denied,
you are
hereby advised of this Agency's appeal procedures. Any person denied
access to
information may file an appeal to the CSS Freedom of Information Act/
Act Appeal Authority. The appeal must be postmarked no later than 60
calendar days
of the date of the initial denial letter. The appeal shall be in
writing addressed to the (...)

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