NSA Cites New 'Security Concerns' In Preemptive Refusal To Even Search For Contractor Documents

from the 'don't-even-bother-asking,'-they-explained dept

We’ve become accustomed to the NSA’s infamous Glomar responses. The agency is fond of telling FOIA requesters that it’s not saying it has the sought-after documents on hand, but it’s also not not saying that either. It’s the public records Schrödinger’s box, where requested documents lie in a dual state of existence and nonexistence, supposedly because any hint either way would rend the national security fabric in twain.

Brendan O’Connor of Gizmodo reports that a January 17th response to his FOIA request contains some new additions to the NSA’s usual Glomar.

The notoriously secretive National Security Agency is raising “security concerns” to justify an apparent new policy of pre-emptively denying Freedom of Information Act requests about the agency’s contractors.

The policy was cited by John R. Chapman, the agency’s chief FOIA public liaison officer, in a letter to Gizmodo on January 17, 2017, three days before Donald Trump’s inauguration. In explaining that the agency had declined to even conduct a search for records about a company called SCL Group, Chapman wrote, “Please be advised that due to changing security concerns, this is now our standard response to all requests where we reasonably believe acquisition records are being sought on a contract or contract-related activity.”

The NSA is building its own wall, apparently: one that will stand between FOIA requesters and documents related to government contractors in its employ. The NSA simply isn’t going to respond to these requests. And if it’s already decided it’s not going to respond, then it’s not going to be wasting time searching for records it has zero intention of producing.

But the non-response response to Gizmodo’s FOIA request goes even further than a pre-emptive denial. It also contains language instructing empty-handed requesters not to jump to conclusions about the documents the NSA won’t search for or release. From the FOIA non-response [PDF]:

The NSA/CSS FOIA office has not conducted any sort of search to determine whether or not records exist.

Obviously, if the NSA is unwilling to discuss the existence/nonexistence of documents it won’t be searching for, it’s not going to explain what sort of “changing security concerns” have prompted this new state of denial. Perhaps the agency feels there might be some reining in of transparency under the new administration. Or maybe the FOIA office has received new instructions on handling certain FOIA requests. If so, those instructions haven’t been made public and, according to FOIA experts, this kind of denial is a first for No Such Agency.

“This sounds like a non-Glomar Glomar response,” Bradley Moss, deputy executive director for The James Madison Project, told Gizmodo, using a nickname for the notorious practice of national security and law enforcement agencies refusing to confirm or deny the existence of records. There are existing reasons to categorically deny a request, and even to refuse to conduct a search, Moss said, but he’s never seen such a response justified in this way.

“They’re clamping down across the board,” Moss said. “There is clearly a determined and deliberate attempt to plug any gap” that might allow the public to see how the national security apparatus actually works.

As Gizmodo points out, the NSA issued a 22-page guidebook to its FOIA office that addressed requests for contract info specifically. And nothing in it points to blanket denials and preemptive refusals to even search for records.

Gizmodo is seeking information about the SCL Group whose subsidiary, Cambridge Analytica, has had a hand in both the Trump presidential campaign and the UK’s Brexit push. It could be that this attempted peek into SCL contracts raised red flags with the incoming administration. Those might be the “security concerns” hinted at in the NSA’s response. If so, the blanket denial may be in place to prevent requesters from drawing conclusions about certain denied documents. If no one can have anything contract-related, then no one can draw inferences from their particular denial.

If this is the new status quo, then the departing administration is as much to blame as anyone. Obama talked a lot about government transparency, but year after year, his administration set new records in FOIA denials and deployed exemptions. This looks to be more of the same, only without the empty promises of greater accountability.

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Comments on “NSA Cites New 'Security Concerns' In Preemptive Refusal To Even Search For Contractor Documents”

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Michael (profile) says:

“Please be advised that due to changing security concerns, this is now our standard response to all requests where we reasonably believe acquisition records are being sought on a contract or contract-related activity.”

Also be advised that we reasonably believe that all of our records are contracts or contract-related.

So, we cannot confirm or deny if we will or will not deny any additional record requests that are made by you or anyone else, but we do not deny confirming that record requests relating to contracts or contract-related activities will be denied.

Anonymous Coward says:

Cost Benefit Anyone

The intelligence services refuse to talk to anybody except senior bureaucrats, military or politicians. Massive reports thud onto the desks of people who do not and never will have the time to read them. Unread reports are useless. What is the point of having an intelligence service that produces no usable intelligence?

If you want intelligence, pick up a newspaper or read a news site. Only bother with the ones with a commitment to telling the truth. All propaganda organs only tell you what their masters want you to hear, not the truth.

If you want security, a cohesive society is the only thing that will give you that. That means winning the battle of ideas. The US constitution (including the bill of rights) won the battle of ideas for the US for centuries. If the US executive branch decides not to truly uphold the US constitution, then the US loses the battle of ideas. Then it is goodbye to your cohesive society and goodbye to security.

2017 BH30 says:

Whose secrets ?


Why are Secret Agencies so secretive ??

More importantly, precisely where does the NSA get legal authority to keep any secrets at all ?

From the President or Congress, you say (?) Well then, where do Presidents/Congress get authority to keep secrets from the American citizenry ?

From the US Constitution, you say (?) Well then, where does the Constitution get authority to keep secrets from the American citizenry ? (and there’s no mention of secrecy at all there) From the American citizenry, you say.

Well then, the American citizenry somehow decided to keep its own secrets from itself — quite a tricky feat… unless the American government is in practical fact a separate, independent entity from the citizenry (Bingo)

Anonymous Coward says:

Re: Whose secrets ?

That is part of why it is not a democracy, but a representative democracy…

In this case the problem is how many moneys are put into private contractors in US intelligencia. The millitary complex and “the beltway”, has decided to close the shutters even further, so as to avoid having negative news about them rely on facts.

But at the same time, the budgets get increased, more work is outsourced to contractors and the unwaveringly loyal politicians are seeing the military complex as part of something they need to protect from public scrutiny.

In that context this move makes sense, but darn if it ain’t a problem for trust in representative democracy, not to talk about a massive ramping up of corruption opportunities!

timmaguire42 (profile) says:

Personally, I’d like to do away with the entire FOIA structure. Instead, all public documents should as a matter of standard procedure be loaded into a searchable public database. Then, instead of making a request, waiting a bunch of months, and then being presented with a bill for the search regardless of whether any documents turn up, you could just go to the database and search and print to your heart’s content. After all, you’ve already paid for it through your taxes. And if we’re a government of the people, by the people, for the people, then conceptually, we’re entitled to ti at any time for any reason.

The bar for secrecy should be much higher as well.

Anonymous Coward says:

Refreshing honesty and optimization from the NSA

Since they would have refused to hand over any documents anyway, I am glad they preemptively refused to search for it. This saves tax money that can instead be spent to improve their ability to illegally spy on American citizens.

On the more serious side, I wonder whether these preemptive refusals to search will be a boon to FOIA requesters. The NSA can refuse to conduct a search in a much more timely manner than it can conduct a search and refuse to discuss what it found, so it might be able to more quickly give them standing to file a FOIA lawsuit. If they had to wait for it to complete the search before it refused to fulfill the request, they might have to wait out the statutory time limit on FOIA searches before filing a lawsuit. Now, they can jump straight to filing the suit on the basis that the law has no provision for the NSA to be noncompliant in this way.

That One Guy (profile) says:

Telling response

The NSA/CSS FOIA office has not conducted any sort of search to determine whether or not records exist.

Translated: Yeah, the records exist, and they make us look all sorts of bad, so we’re not even going to pretend to search for them.

With a blanket refusal like this the assumption should be that the records do exist, and they are if anything even worse than the one requesting them could ever dream of.

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