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.

Filed Under: foia, glomar, nsa, security concerns