From: gnu@toad.com (John Gilmore) Subject: Clipper Key FOIA update: We have appealed gov't lack of response Date: 6 May 94 00:23:21 GMT Newsgroups: alt.politics.org.nsa,comp.org.eff.talk,alt.society.foia Neither the Treasury Dept. nor the Commerce Dept. has responded further to our FOIA requests regarding the Clipper key database. Both agencies requested that we extend their time limits, and we did so; neither has responded within the new deadline of their choice. We have been in telephone contact with the agencies and just sent out formal appeal letters this week. Both agencies have gone way beyond the 10-day deadline (20 days if consultation with other agencies is needed) written into the Freedom of Information Act. As we all remember Tax Day, April 15th, let's also remember how the IRS penalizes us when *we* don't meet *their* deadlines -- and how much of a double standard the government holds with regard to its own timeliness. By law, these government agencies have 20 working days to process our new appeal. Appeals are sometimes handled by more competent people than ordinary FOIA requests, but adherence to time limits is not particularly common in appeals either. The next step twenty days after the appeal is to sue the government in Federal District Court for release of the records. As you might expect, this is also a lengthy process. In the two FOIA suits I now have in progress (against NSA and DoJ/FBI), the government has used every procedural trick in the book to delay the progress of the lawsuits, so that they can defer becoming accountable to the public as long as possible. I have enclosed copies of our two appeal letters. There is a bill pending in Congress, S. 1782 by Sen. Leahy, Brown, and Kerry, that would provide penalties of up to $75/day against agencies that withhold information after the FOIA time limits, as well as paying the requester's attorney's fees and reasonable costs. It also provides that a requester will be given electronic records in their choice of machine-readable format if the records in that format can be made with "reasonable effort" (e.g. putting a tape in the tape drive). It makes other small improvements in the FOIA. Please ask your Senator or Representative to co-sponsor the "Electronic Freedom of Information Improvement Act of 1993". You can see its summary and current status by doing `telnet locis.loc.gov', then picking Federal Legislation, Current Congress, "retrieve S. 1782", and "display item 1 all". Please disseminate this information to all interested parties. John Gilmore gnu@toad.com law office of Lee Tien 1452 Curtis Street Berkeley, California 94702 _______________ tien@well.sf.ca.us voice: (510) 525-0817 fax: (510) 525-3015 May 3, 1994 Reference: KEY ESCROW DATABASE-TREASURY--FOIA APPEAL 94-03-61 Freedom of Information Appeal, Disclosure Office (D.O.) Chief, Disclosure Branch Department of the Treasury 1500 Pennsylvania Avenue N.W. Washington, D.C. 20220 ATTN: FOIA appeal Dear Sir or Madam: This is an appeal of the above-referenced Freedom of Information Act ("FOIA") request under the FOIA [5 U.S.C. $ 552] on behalf of my client, Mr. John Gilmore. Copies of correspondence have been enclosed. This request was dated and mailed on February 24, 1994. I was informed by telephone conversation with your Departmental Disclosure Office on or about March 28, 1994, that your agency did not deem this request to be received until March 23, and accordingly determined that the deadline for issuing your initial determination was April 6. On April 14, I received a letter stating that every effort would be made to respond by April 6. I do not understand why a request mailed on February 24 would not be deemed received until almost a month later; I was referred to your agency regulations at 31 CFR $ 1.5(c). By fax, Ms. Alana Johnson of your agency requested an extension of time until May 2, 1994, to which my client acquiesced, without waiving his appeal rights. It is now May 3, 1994, and no substantive response has been received. Under the FOIA, a requester may appeal when the 10- working-day time limit for issuing an initial determination is violated. 5 U.S.C. $ 552(a)(6)(C). Under your own agency regulations, a requester may appeal "when a component fails to respond to a request within the time limits set forth in the FOIA." 31 CFR $ 1.5(h). I appeal your agency's actions in regard to this request on the following grounds. First, I appeal the failure to issue an initial determination of this request within the statutory time limits, and ask that your agency, on appeal, disclose all responsive records. Second, I appeal your agency's application of agency regulations which violate the FOIA's time-limit provisions. In particular, I appeal your agency's decision to deem this request "received" on March 23, as opposed to the date of receipt by your FOIA office. Although I understand that agencies may have backlogs which interfere with the timely response to FOIA requests, the FOIA does not permit routine agency backlogs to excuse failure to timely respond. If your agency utilizes regulations which deem a valid request to be received on a date later than that on which it was in fact received, your agency engages in a pattern and practice of untimely delay which violates the FOIA. My original request letter complied in all substantial respects with the FOIA. The records sought were reasonably described; the envelope and letter were clearly marked; the request was addressed to the appropriate office; a request for reduction or waiver of fees was made, accompanied by information in support of a fee waiver, as well as a promise to pay fees of up to $1000 in the event that fees must be charged. Thus, I believe this request satisfied the requirements of 31 CFR $ 1.5(c). Because this request was a perfected, valid request as of the date received by your office, your agency should have deemed it received as of that date. It is possible that your agency made a determination that the fees for this request can be waived. Although your regulations provide that "[a] request for records shall be considered to have been received ... on the later of the dates on which" the request was perfected, or the fee issues were settled, 31 CFR $ 1.5(e), I contend that this regulation is contrary to the FOIA and therefore unlawful, and may not be used to postpone processing of this request. The FOIA does not permit the fee or fee waiver processing of a request to permit agency delay beyond strict statutory limits. Because no initial determination has been received, I am unable to discuss further in this appeal letter any of the substantive issues which may be raised by this FOIA request. For instance, I cannot discuss the propriety of any exemption claims, of my client's request for a fee waiver, or of my client's request for some sort of index to responsive document, because no such claims have yet been made. I reiterate all the relevant points raised in my initial request letter and reserve my client's right to present additional information which may be relevant to this appeal. As I pointed out in my initial request letter, your agency should provide an index to responsive documents in order to make the administrative appeal process meaningful. Without timely responses and adequate information the filing of a FOIA appeal becomes no more than a formality to be observed on the way to litigation. This was not intended by Congress. My client has been patient and cooperative. However, as you well know, the key-escrow initiative, with which this request is concerned, is a matter of great current debate. As this appeal letter is being written, two Congressional committees are hearing testimony on the key-escrow plan. The information sought by this request, if released in timely fashion, could go a long way toward informing that debate. As provided under the FOIA, I expect a response to this appeal in twenty working days. Sincerely, Lee Tien Attorney at Law On behalf of Mr. John Gilmore ----------------- law office of Lee Tien 1452 Curtis Street Berkeley, California 94702 _______________ tien@well.sf.ca.us voice: (510) 525-0817 fax: (510) 525-3015 May 3, 1994 Reference: KEY ESCROW DATABASE-NIST APPEAL FOIA request dated February 24, 1994 FOIA Appeals Karl Bell, FOIA Officer National Institute for Standards and Technology Building 101, Room A-110 Gaithersburg, Maryland 20899 ATTN: FOIA appeal Dear Sir or Madam: This is an administrative appeal under the Freedom of Information Act (FOIA) with regard to the above-referenced FOIA request on behalf of my client, Mr. John Gilmore. I have spoken to Mr. Philip Greene of the General Counsel's office of the Department of Commerce several times about this matter. I initially agreed to extend your time to respond until April 15, 1994, reserving all of my client's appeal rights. After no response was received, Mr. Greene and I spoke again, and he explained that more time was needed. I asked him if an interim release of documents was possible. This morning, Mr. Greene and I spoke, and he informed me that he was waiting to hear from the processing units about such interim release. It is my understanding that such an interim release will be made very soon, and we appreciate this very much. Nevertheless, at this point we must appeal this delay in issuing an initial determination, which violates the time limits for agency response under the FOIA. Under the FOIA, a requester may appeal when the 10-working-day time limit for issuing an initial determination is violated. 5 U.S.C. $ 552(a)(6)(C). More than two months have passed since this request was received by your agency. By the time you receive this appeal letter, the maximum allowable time under the FOIA's normal time limits will have passed. Because no initial determination has been received, I am unable to discuss further in this appeal letter any of the substantive issues which may be raised by this FOIA request. For instance, I cannot discuss the propriety of any exemption claims, of my client's request for a fee waiver, or of my client's request for some sort of index to responsive document, because no such claims have yet been made. I reiterate all the relevant points raised in my initial request letter and reserve my client's right to present additional information which may be relevant to this appeal. As I pointed out in my initial request letter, your agency should provide an index to responsive documents in order to make the administrative appeal process meaningful. Without timely responses and adequate information the filing of a FOIA appeal becomes no more than a formality to be observed on the way to litigation. This was not intended by Congress. My client has been patient and cooperative. However, as you well know, the key-escrow initiative, with which this request is concerned, is a matter of great current debate. As this appeal letter is being written, two Congressional committees are hearing testimony on the key-escrow plan. Your own advisory board, the CSSPAB, has said that more information is needed in order to inform the public debate. The information sought by this request, if released in timely fashion, could go a long way toward informing that debate. As provided under the FOIA, I expect a response to this appeal in twenty working days. Sincerely, Lee Tien Attorney at Law On behalf of Mr. John Gilmore -- John Gilmore gnu@toad.com -- gnu@cygnus.com -- gnu@eff.org Can we talk in private? Join me in the Electronic Frontier Foundation. Not if the FBI and NSA have their way. Ask membership@eff.org how.