NATIONAL SECURITY AGENCY
FORT GEORGE G. MEADE, MARYLAND 20755-6000

Serial: LIT/089/06
13 April 2006

VIA FIRST-CLASS U.S. MAIL
William Payne
13015 Calle de Sandias, NE
Albuquerque, NM 87111

Re: Case No. 8687C/Appeal No. 3050
Dear Mr. Payne:

This letter provides clarification to the Freedom of Information Act/Privacy Act (FOJA/PA) Appeal Authority's letter dated 14 March 2006, wherein he, among other things, denied your FOIA appeal. You elected FOLA as the process for requesting records from the National Security Agency. When this Agency processed your request for records under the provisions of the FOIA, it conducted a classification review of all responsive records. Based on this review, the Agency determined that the information you sought remained currently and properly classified SECRET and TOP SECRET in accordance with the criteria established in Section 1.2 of Executive Order 12958, as amended.

The Appeal Authority's letter, wherein he explained the overlap of FOIA and thi Mandatory Declassification Review (MDR) processes, was for information purposes, an did not grant authority for you to submit a MDR request for the same records that had been reviewed and processed under the FOIA. As stated above, under the FOIA, this Agency conducted a line-by-line classification review of the records and determined th~ the records you sought were currently and properly classified. The same type of revie'~ would have been done under the MDR process. If you disagree with the Appeal Authority's decision to deny your appeal, you can seek judicial review as set forth in tl~ Appeal Authority's 14 March 2006 letter.

You cannot request a MDR on the same records that were reviewed under the FOIA for two years from the date of the Director of Policy's letter informing you that these records were exempt from disclosure because, among other things, they were currently and properly classified.

Sincerely,

ERIC M. O'SHEA
Attorney
Office of Associate General Counsel
(Litigation)

NSA legal project mood music
DOJ FOIA APPEAL

Thursday April 6, 2006 Certified and email Linda Huffman National Security Agency Information Policy Office DC323 Room S2CW113, Suite 6884, Building SAB 2 National Security Agency 9800 Savage Road Fort George G. Meade, Maryland 20755-6884 RE case No. 8687C/Appeal No. 3050 http://www.prosefights.org/nmlegal/nsa/williamblack.htm#huffman Dear Ms Huffman: NSA employee William B. Black, JR, Freedom of Information Act/Privacy Act Appeals Authority sent two similar FOIA appeal denial letters. The first is dated February 14, 2006 and seen at http://www.prosefights.org/nmlegal/nsa/williamblack.htm#14. The second is dated February 22, 2006 and seen at http://www.prosefights.org/nmlegal/nsa/williamblack.htm#22. The only difference appears that the paragraph You stated in your appeal letter that you believed the subject documents were improperly classified and requested a classification review. It appears you are blending the FOIA appeal process with the Mandatory Declassification Review (MDR) process (EO 12958, as amended, Section 3.5). EO 12958, as amended, Section 3.5 is the proper avenue for classification challenges. Agency policy states, if a requestor submits a request under both, the FOIA and the MDR, the Agency shall require the requestor to elect one process or the other. The request shall be treated as a FOIA unless the requested materials are subject to the MDR only. Additional information regarding the MDR process can be found at: http://www.archives.gov/isso/oversightgrouss/iscap/mdr-appeals.html. If you wish to request a classification challenge under the MDR process, please submit a separate request in writing to this Agency. Your MDR request will be processed accordingly. is included in Black's March 14 appeal denial letter but missing in his March 22, 2006 appeal denial letter. I demand a Mandatory Declassification Review. I want documents forwarded me by the Department of Justice seen at http://www.prosefights.org/nmlegal/deptofjustice/deptofjustice.htm without redactions. Criminal violation of the Privacy Act 5 USC §552(a) [see http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#crime]and New Mexico libel law 30-11-1 [see http://www.prosefights.org/nmlegal/nmcriminal/nmcriminal.htm#libel] has been committed in writing by release of the false and defaming documents see at http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#gallegos. Black wrote in both of his letters This replies to your letter dated 22 November 2005, appealing the National Security Agency's (NSA) refusal to release responsive documents in their entirety pursuant to your Freedom of Information Act (FOIA) request. Your initial request, the documents located, the Office of Policy's response to you dated 23 September 2005, and your letter of appeal have been reviewed. As a result of this review, I have determined that the withheld information was appropriately withheld pursuant to the exemptions cited below. The withheld information meets the standards for classification set forth in subparagraph (a) of Section 1.1 of Executive Order (EO) 12958, as amended. In addition, the information meets the specific criteria for classification established in Section 1.4(c) and (g). The information remains currently and properly classified SECRET and TOP SECRET in accordance with the criteria established in Section 1.2 of EO 12958, as amended. The documents are classified because their exposure could reasonably be expected to cause exceptionally grave and serious damage, respectively, to national security. Accordingly, the documents are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(1). EO 12958 states Sec. 1.8. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; .... Sandia labs department manager James Gosler, Sandia labs lawyer Harold Folley, Department of Justice lawyer David Glass representing NSA have been identified from the FOIA documents seen at http://www.prosefights.org/nmlegal/deptofjustice/deptofjustice.htm as involved in the production of the false and defaming documents seen at http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#gallegos. Only name(s) of NSA employee(s) have been redacted. Classifying name(s) of NSA employee(s) violates Section 1.8 (a)(1) and (2) of EO 12958. Interagency Security Classification Appeals Panel rules state Section 1.8 of Executive Order 12958, as amended, "Classified National Security Information" ( PDF Format) provides for classification challenges by an authorized holder who believes that the classification status of certain information is improper. See http://www.archives.gov/isoo/oversight-groups/iscap/classification-challenges.html Moreover The agency should respond with a prompt declassification determination or inform the requestor of the agency's need for additional time to process the request. Article VIII section A(3) of the ISCAP bylaws indicates that if the appellant has not received an initial decision for a MDR within one year of its filing, the requestor may appeal directly to the ISCAP. If the agency denies the initial request, it must notify the requestor of his or her right to file an administrative appeal. This request must be filed within 60 days of the receipt of the denial. Section 2001.33(a)(2)(i) of the implementing directive states that the agency should normally make a determination within 60 days of the receipt of the administrative appeal or notify the requestor of a need for additional time. Article VIII section A(3) of the bylaws indicates that failure by the agency to make a final decision within 180 days will permit the requestor to appeal directly to the ISCAP. If the agency denies the administrative appeal, it must notify the requestor in writing of the final determination and the reasons for the denial. It must notify the requestor that he or she may, within 60 days of the receipt of the notification, file an appeal with the ISCAP. Freedom of Information Act 5 U.S.C. § 552(a)(6)(A) [http://www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page2.htm]states Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall-- (i) determine within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection. NSA never did respond my June 10, 1996 FOIA. Department of Justice finally responded to my June 10, 1996 FOIA on November 20, 2004 [http://www.prosefights.org/nmlegal/deptofjustice/deptofjustice.htm] instead of the 20 days required for NSA response. Black was required to respond to my November 22, 2005 appeal within 20 days. But Black did not respond until March 14 and March 22, 2006. This matter has been going on for 14 years. Black wrote in both of his letters Since your appeal has been denied, you are hereby advised of your right to seek judicial review of my determination pursuant to 5 U.S.C. § 552(a)(4)(B) in the United States District Court in the district which you reside, in which you have your principal place of business, in which the Agency's records are situated (U.S. District Court of Maryland), or in the District of Columbia. Ms Huffman, Black points out that we could proceed to second lawsuit with NSA. Here's our first NSA lawsuit: http://www.jya.com/nsasuit.txt, http://cryptome.quintessenz.at/mirror/whp122397.htm [Austria] or http://www.prosefights.org/cibolafraud/nsasuit.txt which was required for visibility. We feel that settlement is preferable. Therefore, I ask that you respond within 20 working days. Otherwise, I feel that we should proceed to ISCAP to try to settle these unfortunate matters. Sincerely William H. Payne 13015 Calle de Sandias NE Albuquerque, NM 87111 505-292-7037 Distribution Thomas DePriest, Esq U.S. Department of Energy Office of General Counsel Forrestal Building Mail Station GC-72 1000 Independence Avenue, SW Washington, DC 20585-0103 (202) 586-2946 thomas.depriest@hq.doe.gov Alberto Gonzales Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 AskDOJ@usdoj.gov Executive Secretary, ISCAP C/O Information Security Oversight Office The National Archives Building 700 Pennsylvania Avenue, NW, Room 500 Washington, D.C. 20408 Telephone: (202) 357-5250 FAX: (202) 357-5907 E-Mail: iscap@nara.gov ISOO ISCAP Team Members: William J. Bosanko ISCAP Team leader Telephone: 202-357-5205; Email: william.bosanko@nara.gov Lee Morrison Telephone: 202-357-5039; Email: lee.morrison@nara.gov Kristofer L. Johnson Telephone: 202-357-5035; Email: kristopher.johnson@nara.gov Robert L. Tringali Telephone: 202-357-5335; Email: robert.tringali@nara.gov