Fw: 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...]

Mon Nov 25 11:22:07 PST 2019

 On Monday, November 25, 2019, 10:52:43 AM PST, jim bell <jdb10987 at yahoo.com> wrote:

  My comments inline:            Jim Bell
    On Monday, November 25, 2019, 08:48:49 AM PST, coderman <coderman at protonmail.com> wrote:  

 ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
 On Monday, November 25, 2019 6:34 AM, jim bell <jdb10987 at yahoo.com> wrote:
...
Can I see the denial decision?

>the denial using Glomar exception is here:
 https://cdn.muckrock.com/foia_files/2019/02/11/1-29-19_MR67282_REJ-G_106095.pdf

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???
The relevant claim seems to be in Paragraph 4 of that cited letter:   "We have determined..."    Some PDFs are easily selectable and copyable.  For example, look at:  http://www.judicialwatch.org/wp-content/uploads/2014/02/Judicial-Watch-v-Department-of-Defense-Central-Intelligence-Agency-Opposition-to-Motion-for-Summary-Judgment-12142011.pdf    Why is this copyability not true of the PDF from Muckrock, above?
Note a relevant part of that cite, section (2)(b) on page 34:
"b. Defendants fail to demonstrate that all 52 records reasonably could be expected to cause identifiable or describable exceptionally grave damage to the national security. Even if Defendants could show – which they cannot – that each and every record pertainsto one or more classification categories, Defendants fail to demonstrate that the disclosure of all 52records “could reasonably be expected to cause identifiable or describable damage to the nationalsecurity.” EO 13526, § 1.4. In addition, because the records have been purportedly classified asTOP SECRET, the type of identifiable or describable damage must be “exceptionally grave.” EO13526, § 1.2. In an attempt to support Defendants’ claim that the release of each and every recordreasonably could be expected to cause exceptionally grave damage to the national security,Director Bennett describes two types of records: (1) Harm to National Security from Release ofImages of bin Laden and (2) Harm to National Security from Release of Information pertaining toCIA Intelligence Activities and Methods. "    [end of quote]
Similarly, as to the FOIA for Cypherpunks emails, it is extremely hard to justify withholding material that was previously publically disseminated, by people who knew and intended to do precisely that, and yet say something like:
    "reasonably could be expected to cause identifiable or describable exceptionally grave damage to the national security. 

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.  

In addition, the Paragraph 5:   "In addition, this Agency...".     Those laws need to be checked.  

>> But you might want to look into the twin legal concepts "Collateral Estoppel" and "Res Judicata".  They are confusingly so similar that many lawyers don't know the difference

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.

>i should note that none of these requests have gone to litigation. the FOIA process handles appeals internally, and after an appeal is refused, contesting before a judge in court is possible.

I don't know the rules for the precedents on FOIA requests.  In ordinary Federal Court cases and appeals, any precedent from other Appeal Circuits can be citeable, but generally precedent from the specific Circuit (1-11 and DC; there is also a Federal Circuit for patents) is strongly preferred. (that includes the concept of being 'binding'.  If a precedent is 'binding' a judge is supposed to be required to follow it.)   And, can a person who filed for a FOIA in Massachusetts appeal to a a District Court in a different Circuit?  Doesn't sound likely.  
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.  

                          Jim Bell

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