July 24 2011
The nonprofit Electronic Privacy Information Center (EPIC) requested documents from the National Security Agency (NSA) regarding the agency's relationship with Google-the NSA refused to release records. EPIC sued in response and on July 8 the U.S. District Court for the District of Columbia sided with the NSA granting it summary judgment.
EPIC submitted a Freedom of Information Act (FOIA) request in February 2010 for records detailing the relationship between Google and the NSA. According to the nonprofit, EPIC was looking for documents that "could reveal that the NSA is developing technical standards that would enable greater surveillance of Internet users."
It is particularly appropriate to use FOIA to uncover plans for increased surveillance on private citizens. Because the Freedom of Information Act is like a civil liberty (it balances the power difference between citizens and government), it makes sense to use it to make public potentially undesirable government actions.
The NSA cited Exemption 3 in its decision to deny records to EPIC. FOIA exemptions outline information that government bodies must not make public. Exemption 3 excludes records "specifically exempted from disclosure by statute." The statute at hand is Section 6 of the National Security Agency Act of 1959, which prohibits disclosure of information about the NSA.
To reiterate: Exemption 3 of the federal FOIA allows federal agencies to cite statutes in order to withhold records, and there is a statute that seems to entirely remove the NSA from FOIA.
EPIC appealed the denial through the NSA's own internal review process. That's right, "internal review": the NSA system for public information appeals allows the NSA to review its own decisions.
In open government culture, there is the concept "presumption of openness." This means that information is public until proven exempt --that disclosure is favored over nondisclosure.
Keep presumption of openness in mind when reading the NSA's own policy on FOIA:
Where discretionary releases can be made without causing harm, the Deputy Director of Policy, as the initial denial authority, and the NSA Deputy Director, as the appeal authority, use their discretion to release information even where an exemption may be available.
It is striking that the first step in the open records process means surviving the "initial denial authority."
The U.S. District Court summarizes the NSA's stance on denying records as founded on a worry that it would "improperly reveal information about NSA's functions and activities." The case in general reveals information about how the NSA works. When the presumption is that information be secret, the information system is broken.