1994-02-25 - I have FOIA’d the Clipper Key Escrow databases

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From: gnu
To: cypherpunks@toad.com, gnu
Message Hash: b936e061370e5726553c4d1477d66660fdd4bd1659aa33cb6718540620e0257c
Message ID: <9402252058.AA04180@toad.com>
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UTC Datetime: 1994-02-25 20:58:42 UTC
Raw Date: Fri, 25 Feb 94 12:58:42 PST

Raw message

From: gnu
Date: Fri, 25 Feb 94 12:58:42 PST
To: cypherpunks@toad.com, gnu
Subject: I have FOIA'd the Clipper Key Escrow databases
Message-ID: <9402252058.AA04180@toad.com>
MIME-Version: 1.0
Content-Type: text/plain

There appears to be no FOIA exemption that would justify withholding
the key escrow databases which Treasury and NIST are building.  (The
keys are not tied to any individual, so individual privacy isn't a
valid exemption.  The database isn't classified.  Etc.)  I have asked
for a copy of each database, in toto.  Letters were sent yesterday.
One is reproduced below; the other is identical except for the
addressee and minor details.

You too can do things like this.  It's fun and it occasionally
produces highly useful information.  Just think of something that the
government knows, and has written down on paper, that you want to
know.  Ask them for it.  You have the right to know.  They're spending
your taxes to subjugate you, and they're required to answer, though
almost all agencies do it grudgingly.  Post your request to the net,
so that we-all will know it's happening, and can be inspired to think
of other interesting things to ask for.

You don't need all the boilerplate below about exemptions and time
limits and stuff; that is to put the agencies on notice that we will
push them in court, if necessary, to be responsive.  Or you can use
our boilerplate in your own requests, if you like.  Alter the "media
requester" section to suit your own situation.


law office of
Lee Tien
1452 Curtis Street
Berkeley, California  94702
voice:  (510) 525-0817
fax:  (510) 525-3015

February 24, 1994


Departmental Disclosure Office
Department of the Treasury
Room 1054-MT
Washington, D.C.  20220
ATTN:  FOIA request

Dear Sir or Madam:

This is a request under the Freedom of Information Act [5 
U.S.C. Sec. 552] on behalf of my client, Mr. John Gilmore.  

I write to request a copy of all agency records or portions 
thereof, in electronic or other form, which relate to the database of 
escrowed key components for encryption using the key escrow 
encryption method.  The Attorney General announced on Friday, 
February 4, 1994, that the Automated Systems Division of the 
Department of the Treasury will be one of the two escrow agents.  

This request includes your database of the escrowed key 
components.  This request also includes any ancillary information 
about the database, such as data formats, procedures, standards, 
access methods, memos and documents about its use, access 
software, plans, etc.  If the database itself is stored in encrypted 
form, then this request also includes the computer programs and 
keys required to access it. 

We specifically request that you make the database available in 
electronic form, such as on magnetic tape.  We remind you that the 
long-standing rule that the FOIA "makes no distinction between 
records maintained in manual and computer storage systems," 
Yeager v. D.E.A., 678 F.2d 315, 321 (D.C.Cir. 1982), has recently 
been amplified in Armstrong v. Executive Office of the President, 
810 F.Supp. 335 (D.D.C. 1993).  Any paper print-outs of electronic 
records, such as e-mail, must include all information in the 
electronic record.  Assuming that there would be no loss of 
releasable information, such as written comments made on paper 
print-outs, we therefore ask you to release all responsive electronic 
records in electronic, i.e., machine-readable, form.  

As you know, the FOIA provides that an agency must make an 
initial determination of whether to comply with a FOIA request 
within ten working days of receiving the request.  

If the records that you possess were originated or classified by 
another organization, I ask that your organization declassify them 
(if needed) and release them to me, as provided in the FOIA, 
within the statutory time limits.  If there is a conflict between the 
statutory time limits and some regulation or policy that requires 
you to refer the records, the statutory requirement takes precedence 
over any Executive-branch regulation, policy or practice.  

Congress placed a limit on the time which may be expended in 
referrals.  The FOIA explicitly provides that referrals to other 
interested agencies or agency components are treated under the 
provision for "unusual circumstances," and cannot justify a delay 
of more than an additional 10 working days.  5 U.S.C. Sec. 

"[W]hen an agency receives a FOIA request for 'agency 
records' in its possession it must take responsibility for processing 
the request.  It cannot simply refuse to act on the ground that the 
documents originated elsewhere."  McGehee v. C.I.A., 697 F.2d 
1095, 1110 (D.C. Cir. 1983).   Even records originated by other 
agencies are subject to immediate release under the applicable case 
law, if they were at the time of the request in the possession and 
control of your agency.

Simply put, the FOIA and the case law take precedence over 
executive branch regulations or practices regarding referrals.  If 
you do refer documents to any other agency, and they are not 
provided within the time limits, we intend to litigate on this 

As you know, the FOIA provides that even if some requested 
material is properly exempted from mandatory disclosure, all 
segregable portions must be released.  [5 U.S.C. Sec. 552(b)]  If any 
or all material covered by this request is withheld, please inform 
me of the specific exemptions that are being claimed, and mark all 
deletions to indicate the exemption(s) being claimed to authorize 
each individual withholding.  If the (b)(3) exemption is claimed, 
please indicate the relevant withholding statute(s).

If any records are withheld, I request a Vaughn index or its 
equivalent during the administrative process.  "[T]he objective of 
the Vaughn requirements, to permit the requesting party to present 
its case effectively, is equally applicable to proceedings within the 
agency."  Mead Data Central v. Department of the Air Force, 402 
F.Supp. 460 (D.D.C. 1974), remanded, 566 F.2d 242 (D.C. Cir. 
1977) aff'd, 575 F.2d 932 (D.C. Cir. 1978).  

"[A] person cannot effectively appeal a decision about the 
releasability of documents ... if he is not informed of at 
least a list of the documents to which he was denied access 
... and why those decisions were made.  Denial of this 
information would in all likelihood be a denial of due 
process as well as effectively gutting the reasons for 
applying the exhaustion doctrine in FOIA cases."

Shermco Industries, Inc. v. Secretary of the Air Force, 452 F.Supp. 
306, 317 n.7 (N.D. Tex. 1978); see Oglesby v. Department of the 
Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing Shermco).   It 
should be simple to prepare a list and the claimed exemptions as 
the records are processed.  Disclosing such information would not 
disclose any exempt information and it would make it easier to 
appeal your initial determination on the merits.  

In addition, I ask that your agency exercise its discretion to 
release information that may be technically exempt.  As you know, 
the Attorney General on October 4, 1993, directed that agencies 
should administer the FOIA under a presumption of disclosure, and 
that information which need not be withheld should not be.

I remind you that under Chrysler v. Brown, 441 U.S. 281, 293 
(1979), the 5 U.S.C. Sec. 552(b) exemptions are discretionary, not 
mandatory.  An agency can generally choose to release exempt 
information.  This discretionary review process for withholding 
cannot take precedence over the law, which requires a response 
within specified time limits.  Moreover, that discretion, according 
to the Attorney General's October 4, 1993 memorandum, must be 
exercised in accordance with a presumption of disclosure.  Even if 
a substantial legal basis exists for withholding, information is not 
to be withheld unless it need be.  

I also request that fees be waived because Mr. Gilmore should 
be deemed a media requester by your agency for FOIA purposes, 
and because the public interest would be furthered by a fee waiver.  

The D.C. Circuit Court of Appeals has held that "a 
representative of the news media is, in essence, a person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience."  National 
Security Archive v. Department of Defense, 880 F.2d 1381, 1387 
(D.C.Cir. 1989), cert. denied 494 U.S. 1029 (1990).  

This definition applies strongly to Mr. Gilmore, who is a co-
founder and director of the Electronic Frontier Foundation (EFF), a 
Washington, D.C.-based public interest organization.  The EFF has 
been intimately involved in policy discussions concerning key 
escrow encryption and distributes information to the public by 
newsletter and electronic distribution about this and other topics 
involving civil liberties.   Mr. Gilmore is also a skilled computer 
programmer who has spent the last ten years distributing his work 
for public use to a worldwide audience on the Internet and the 

Mr. Gilmore is also entitled to a fee waiver because "disclosure 
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 and is not primarily in the 
commercial interest of the requester."  

There exists a tremendous public debate over the wisdom and 
legality of the key escrow encryption plan, as I am sure you are 
well aware.  Your agency's database is clearly an operation of the 
government in which the public has a great interest.  The Vice 
President himself has publicly expressed doubt about the 
delegating key escrow responsibilities to agencies which are part of 
the executive branch.  The information requested herein relates to 
such doubt.  This information is not yet in the public record, so the 
request makes a substantial contribution to the public 

This request is not primarily in the commercial interest of Mr. 
Gilmore.  He will not benefit financially from this information in 
any way.  He intends to disseminate the requested records widely 
and freely to inform this public debate.   

Should there be any problem in this regard, Mr. Gilmore 
promises to pay up to $1000 in fees, and you should therefore 
begin processing of this request without fee-related delays.  

As provided under the FOIA, I will expect a reply within ten 
(10) working days.  


Lee Tien
Attorney at Law
On behalf of Mr. John Gilmore