Hot Topic (More than 15 Replies) NSA Denies FOIA Fee Waiver, Demands Pre-Payment (Read 20491 times)
Paste Member Name in Quick Reply Box George W. Maschke
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NSA Denies FOIA Fee Waiver, Demands Pre-Payment
Sep 26th, 2002 at 12:46pm
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On 27 March 2002, AntiPolygraph.org filed a Freedom of Information Act request with the National Security Agency (NSA) for:

1. NSA/CSS Regulation No. 122-3, Polygraph Examination and Examiners, Annex D (April 6, 1984) and any superceding version of, or amendment to, this regulation.

2. Any other NSA rule, regulation, directive, or similar document related to polygraph policy.

As noted in the request, the regulation cited above is mentioned in the bibliography of James Bamford's book, Body of Secrets, and a copy of it was evidently made available to him.

Some six months later, the NSA has responded to this request, denying our request for a fee waiver and demanding pre-payment of $528 before it will process our request. NSA's rationale is as follows:

Quote:
Please be advised that your request for a waiver of fees has been considered, and is denied. This decision was made in accordance with the provisions of the FOIA that permit an agency to waive or reduce fees if that agency determines that such an action would be in the public interest. In reaching this decision, several factors were examined: (1) whether the subject of the requested records concerns the operations or activities of the government; (2) whether the disclosure is likely to contribute significantly to an understanding of specific government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of the public at large, i.e., the general public must benefit from the disclosure; and (4) whether you have a commercial interest the magnitude of which is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily" in your commercial interest.

The decision to deny your fee waiver request is based on Item (3); whether the disclosure of the requested information will contribute to the understanding of the public at large. You have not demonstrated that you have the skills and knowledge to turn the information, should any be located and processed for release, into a product beneficial to the general public. Making information available to the public by posting any responsive documents this Agency provides you on your website does not demonstrate that the information will significantly contribute to the understanding of the public at large. Therefore the public would not be the primary beneficiary of the disclosure, as intended by the Act.


I am baffled by the NSA's logic here. It seems clear that making NSA's polygraph regulations public on AntiPolygraph.org would significantly contribute the the understanding of any member of the public at large with Internet access who has any interest in NSA's polygraph policy. Indeed, AntiPolygraph.org is the Internet's leading resource for free information on polygraphy and polygraph policy.

NSA's decision to deny a fee waiver seems on its face to be an attempt to circumvent our request by making it unreasonably costly.

NSA demands $44 an hour in serach fees for FOIA requests. This seems a high price for clerical work. (Where does one apply to become an NSA FOIA searcher?) NSA further estimates that it will take fourteen hours (two worker-days) to search for the requested records. It seems unreasonable to me that it should take so long for NSA to locate its own policy regulations and directives, which are presumably available in word-searchable electronic format.

I'd would be interested in others' views on this before I appeal NSA's fee waiver denial.
« Last Edit: Dec 26th, 2002 at 10:42am by George W. Maschke »  

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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #1 - Sep 26th, 2002 at 6:04pm
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Quote:
I am baffled by the NSA's logic here. It seems clear that making NSA's polygraph regulations public on AntiPolygraph.org would significantly contribute the the understanding of any member of the public at large with Internet access who has any interest in NSA's polygraph policy. Indeed, AntiPolygraph.org is the Internet's leading resource for free information on polygraphy and polygraph policy.


I suppose it depends upon what "skills and knowledge" to which NSA is referring.

It may be the NSA is claiming "you wouldn't understand why we have these regulations, therefore, providing them to you will not help the public".  This would be solidly based on political considerations (i.e. Antipolygraph and its readers wouldn't necessarily agree with the regulations -- perhaps one must agree with the NSA's position in order to receive a fee waiver?).  

That logic turns FOIA on its head.  Since you obviously intend to make the information as provided to you public and easily available, it is irrelevant whether you personally can turn the information "into a product beneficial to the general public".  There can be no "skills and knowledge" onus on you personally under such circumstances -- that is a smokescreen.  The logical question, then, and the only one consistent with the clear intention of the FOIA, is whether the information itself would be beneficial to the public at large.

The only other "skills and knowledge" requirement might be the ability to disseminate the information publicly.  As you've noted, Antipolygraph.org is a highly public and easily-accessible locale.  Surely a skywriting requirement was not what the crafters of the FOIA intended.

IMHO this is a thinly-veiled attempt to avoid making damaging information public.

Skeptic
« Last Edit: Sep 26th, 2002 at 6:36pm by Skeptic »  
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Paste Member Name in Quick Reply Box George W. Maschke
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #2 - Sep 26th, 2002 at 7:05pm
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Skeptic,

Perhaps the key "skills and knowledge to turn the information...into a product beneficial to the general public" involve the ability to transcribe the information and format it as HTML pages. Then any members of the public at large will be able to easily find it by doing a keyword Internet search. Typing HTML is a pretty basic skill, but in my request, I didn't specifically mention that I possess it. I'll be sure to do so in the appeal. Wink

It appears that the NSA would prefer that the public at large know as little as possible about its polygraph policy. But I really don't expect anything in that policy will be embarrassing or otherwise damaging to the NSA (beyond the embarrassment that should rightfully attach to NSA's placing any reliance at all on this pseudoscientific fraud).

For example, see the FBI's polygraph policy for applicants, which is available here:

http://antipolygraph.org/documents/fbi-polygraph-guidelines.shtml  

It's really pretty mundane stuff, but it's important that this FBI policy, which regulates members of the public who apply for employment with the Bureau, be available for public review. The same goes for the NSA's polygraph policy.
  

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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #3 - Sep 26th, 2002 at 8:29pm
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Quote:
Skeptic,

Perhaps the key "skills and knowledge to turn the information...into a product beneficial to the general public" involve the ability to transcribe the information and format it as HTML pages. Then any members of the public at large will be able to easily find it by doing a keyword Internet search. Typing HTML is a pretty basic skill, but in my request, I didn't specifically mention that I possess it. I'll be sure to do so in the appeal. Wink


The only other thing I could think of that they could be referring to is a fear Antipolygraph will provide the information to the public in an out-of-context, distorting manner.  While it's certainly true that Antipolygraph is dedicated to the elimination of the polygraph, everything that has been obtained thus far has been provided to the public verbatim as it has been received.  Any government document may be interpreted out-of-context by individual readers, so the political position of the FOIA requester alone could hardly be a justifiable criterion for the rejection of a request.

For that matter, if that's what they're worried about, they should include other supporting documents to provide context, not deny the request Cheesy

IMHO, this rationale is either a desperate attempt to stem the anti-polygraph tide, or a canned answer that was obviously poorly matched to the request.

Skeptic
  
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #4 - Sep 26th, 2002 at 8:59pm
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Quote:
The decision to deny your fee waiver request is based on Item (3); whether the disclosure of the requested information will contribute to the understanding of the public at large. You have not demonstrated that you have the skills and knowledge to turn the information, should any be located and processed for release, into a product beneficial to the general public. Making information available to the public by posting any responsive documents this Agency provides you on your website does not demonstrate that the information will significantly contribute to the understanding of the public at large. Therefore the public would not be the primary beneficiary of the disclosure, as intended by the Act.


Petty tyrants.

I would reply with a question along the lines of:

"Understanding beforehand that I will disseminate the information provided to me as part of my FOIA request in *any* manner that you deem as 'benefitting the public's understanding' (except expurgation or censorship of the requested documents), please list specifically how I may do so and I will immediately implement such practices."

I would also request names and titles of all people responding to you George, explaining that you wish to know the exact spelling so that the media may publish the names correctly.

  

"It is the duty of the patriot to protect his country from its government." ~ Thomas Paine
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Paste Member Name in Quick Reply Box George W. Maschke
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #5 - Sep 26th, 2002 at 9:24pm
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Skeptic,

Be sure to note that the name of this site is "AntiPolygraph.org" (antipolygraph-dot-org). Smiley We included the dot-org part as an integral part of the name and logo so that any reference to the website would include the URL in an easy-to-remember form.

  

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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #6 - Sep 27th, 2002 at 4:08pm
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Quote:
Skeptic,

Be sure to note that the name of this site is "AntiPolygraph.org" (antipolygraph-dot-org). Smiley We included the dot-org part as an integral part of the name and logo so that any reference to the website would include the URL in an easy-to-remember form.


Thanks for the correction, George -- I'll remember that in the future.

Skeptic
  
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #7 - Sep 28th, 2002 at 11:24pm
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Hi,

Here are two good non-Orwellian reasons to charge you the expenses associated with your FOIA request:

1) if you don't pay it, the rest of the taxpayers do

2) if you take an NSA employee away from more important duties (ie catching spies, terrorists, criminals, other scum), those duties don't get done. 

By the way, the $44 per hour rate is probably not what the employee gets paid; it is the cost to the organization in wasted productivity, etc.

-Vance
  
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #8 - Sep 29th, 2002 at 12:20am
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Vance,
Here are two good answers to your points:

Quote:
Hi,

Here are two good non-Orwellian reasons to charge you the expenses associated with your FOIA request:

1) if you don't pay it, the rest of the taxpayers do


Considering Antipolygraph.org's actions in particular, and FOIA in general are solidly in the category of "public service" (you don't run a democracy without information, and the polygraph is a bad policy in need of change), the taxpayers are the ones who benefit; why shouldn't they foot the bill?

For that matter, do you have any idea how much money that comes to per taxpayer?  I'm willing to bet you'll still be putting food on the table after paying for this FOIA search.

Quote:
2) if you take an NSA employee away from more important duties (ie catching spies, terrorists, criminals, other scum), those duties don't get done. 


FOIA requests don't take people away from more important duties.  They aren't pulling agents off of cases for this -- they have an FOIA office.

And while I certainly think we want to focus on catching the above-mentioned bad guys, if we do so while losing the focus on constitutional government and protection of American freedoms (which the FOIA is designed to do), what's the point?

Skeptic
  
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Paste Member Name in Quick Reply Box George W. Maschke
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #9 - Sep 29th, 2002 at 9:43am
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Vance,

You write:

Quote:
1) if you don't pay it, the rest of the taxpayers do


Yes, that's right, assuming it would actually take the NSA two worker-days to locate its own polygraph regulation and any associated rules, regulations, or directives. I'm not confident that the NSA's estimate of the search time for this request was made in good faith.

Note that the Department of Defense's implementing rule for the Freedom of Information Act (DoD 5400.7-R, September 1998) provides (at para. C6.1.5.1) that "[f]ees may not be used to discourage requesters..." (emphasis added)

DoD 5400.7-R contemplates (at para. C6.1.4.3.1) fee waivers for requests where "[d]isclosure of the information 'is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government.'" I think this public interest clause clearly applies to AntiPolygraph.org's request.

Quote:
2) if you take an NSA employee away from more important duties (ie catching spies, terrorists, criminals, other scum), those duties don't get done.


As Skeptic pointed out, processing a FOIA request does not necessarily mean taking an NSA employee away from intelligence gathering and/or analysis duties. Presumably, the NSA FOIA office staff are competent to locate the requested records.

Quote:
By the way, the $44 per hour rate is probably not what the employee gets paid; it is the cost to the organization in wasted productivity, etc.


Wrong. Only "direct charges" may be assessed as fees. As defined by DoD 5400.7-R, para. C6.1.2.2, "[t]he term 'direct costs' means those expenditures a Component actually makes in searching for, reviewing (in the case of commercial requesters), and duplicating documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits), and the costs of operating duplicating machinery. These factors have been included in the fee rates prescribed at Section C6.2. of this Chapter. Not included in direct costs are overhead expenses such as costs of space, heating or lighting the facility in which the records are stored."

When you speak of "wasted productivity" involved in processing this FOIA request, you seem to imply that it's not important: a frivolous waste of time and taxpayer money. If such is your view, I would strongly disagree.

The NSA operates perhaps the largest polygraph screening program within the U.S. Government, affecting the lives of thousands of U.S. citizens. The requested documents govern that polygraph program. Decisions to hire or not to hire employees, or to grant or deny security clearances to employees and contractors, and are made on the basis thereof.

We know from public source information that the NSA is using the Relevant/Irrelevant polygraph technique -- one that is completely discredited from a scientific viewpoint (you agree, don't you Vance?) -- in making such decisions. The American public (including, especially, those whose lives have been, are, or will be directly affected) by this nonsense ought to have the ability to review the regulations whereby weighty decisions affecting the lives of so many U.S. citizens are being made. At present, such a review is not possible, because the NSA's polygraph regulation is not publicly available. It is, in effect, "secret law."

Once the regulation is released pursuant to AntiPolygraph.org's request, then any member of the public with Internet access will be able to easily locate and review it. It will "contribute significantly to public understanding of the operations or activities of the Government."
  

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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #10 - Nov 23rd, 2002 at 11:01am
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On 22 November 2002, I sent the NSA Freedom of Information office a fee waiver appeal.
  

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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #11 - Mar 22nd, 2003 at 1:37pm
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The NSA has approved AntiPolygraph.org's fee waiver appeal. See the following letter from William B. Black, the NSA's Freedom of Information/Privacy Act appeal authority:

http://antipolygraph.org/foia/foia-011-3.shtml
  

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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #12 - Mar 23rd, 2003 at 3:53am
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Congratulations George, well done.


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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #13 - Mar 23rd, 2003 at 6:11am
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George,

Another hurdle has been cleared. Let's hope that the NSA doesn't spend another year "processing" the FOIA request.

CONGRATULATIONS !!!!

Fred F.  Wink
  
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Re: NSA Denies FOIA Fee Waiver, Demands Pre-Paymen
Reply #14 - May 3rd, 2003 at 2:10pm
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Good news -- NSA released the requested information on 28 April 2003, with only minor redactions. NSA's polygraph regulation and supporting documentation is now available here:

http://antipolygraph.org/read.shtml#NSA
  

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NSA Denies FOIA Fee Waiver, Demands Pre-Payment

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