UNITED STATES DEPARTMENT OF COMMERCE Office of the General Counsel Washington, D.C. 20230 May 19, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Charles R. Smith Softwar 7707 Whirlaway Drive Midlothian, VA 23 112 RE: Freedom of Information and Privacy Act Appeal Dear Mr. Smith: This responds to your appeal under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a) from the February 18, 1999 interim response to your February 25 FOIA request. You seek records responsive to your previous FOIA requests to the Department of Commerce that were referred 1o any organization that is not an "agency" for purposes of the FOIA as well as any correspondence regarding yourself or, Softwar that was sent to any organization that is not an "agency" for FOIA purposes. You appealed on February 25, arguing that the documents you received in the interim response were not responsive to your FOIA request, the documents were "not illegally withheld in a claim that they were being reviewed by another 'agency'," and that the White House is not an agency for purposes of the FOIA. We do not entirely agree with your assertions regarding responsiveness and withholding, but we have clarified your concerns through conversations with my staff Consequently, your appeal has been granted in part. We are releasing 33 documents to you in their entirety. These documents consist of letters sent to you regarding your previous FOIA requests or appeals; referral letters that the Department sent to the National Security Council (NSC) and the Office of the Vice President; letters sent to the submitters of confidential commercial information providing them with an opportunity to object to disclosure; and the underlying documents which were referred to these entities and subsequently released. We are releasing a 30 page NSC draft bill of the Electronic Data Security Act of 1996 and referring letter to NSC with one redaction, the name of a National Security Agency (NSA) employee. We are prohibited From releasing the names of NSA employees pursuant to section 6 of Public Law 86-36 (50 U.S.C. 402 note), as incorporated into the FOIA pursuant to exemption (b)(3). See Founding Church of Scientology v. NSA, 610 1:.2d 824, 828 (D.C. Cir. 1979). We are releasing 2 documents, one which was voluntarily provided to the Department by the Bankers Trust New York Corporation and has been partially redacted. The 10 page document which has been partially redacted is titled "Banker's Trust Encryption System and Law Enforcement." Bankers Trust informed us that the document contains proprietary information which it would not would customarily release to the public. National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); holding limited by Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir 1992), cert. denied 507 U.S. 994 (1993). Nonetheless, Bankers Trust did agree to voluntarily release one paragraph of the document. We are also releasing several documents, in part, which were referred to the White House for review and consultation. Portions of the two letters have been redacted pursuant to the deliberative process and attorney-client privileges, which are incorporated into FOIA exemption (b)(5). In addition, one of the underlying documents that was referred to the White House is being withheld in its entirety under the deliberative process and attorney-client privileges of exemption (b)(5). That document is a February 6, 1996 memorandum that was sent to Departmental officials from a White House official for legal consideration and advice on patent issues involving encryption technology. We are also making a discretionary disclosure of several documents which are not responsive to your request, but appear to be the documents which you are actually seeking. These documents consist of four referral letters and underlying documents which were sent to two U.S. Government intelligence agencies. One of the documents was previously redacted under exemption (b)(4) and provided to you in response to an earlier FOIA request. Another document contains the biographies of 21 individuals. During a March 18, 1999 conversation with a member of my staff, you agreed that, if any referral letters to intelligence agencies were voluntarily provided to you, the Department could redact the names of the agencies. Accordingly, we have redacted the identities and addresses from the documents. Eleven documents which are responsive to your request are duplicative of documents responsive to your April 5, 1997 FOIA request for certain information relating to Clipper technology, James Bidzoes, and RSA, Inc. (Department FOIA request number 97-143). The Department is still consulting with the White House, other Federal intelligence agencies, as well as the U.S. Department of Justice, about these documents. Although none of these documents is currently awaiting solely White House review, because they were at one time provided to the White House for review and consultation, they are responsive to your request. The Office of the Chief Counsel for Technology is continuing to coordinate the response on these documents and will contact you once a response is received from the agencies currently reviewing the referred documents. Finally, your appeal seeks consideration under the Privacy Act as well as the FOIA. However, none of the documents responsive to this request fall within the parameters of the Privacy Act for three reasons. First, the Privacy Act only applies to "individuals." Therefore, any records pertaining to Softwar are not subject to the Privacy Act; only records pertaining to you. 5 U.S.C. 552a(a)(2). Second, the documents responsive to this request are not "records" for purposes of the Privacy Act because these documents are not "about Mr. Smith." In Tobey v. NLRB, 40 F.3d 469 (D.C. Cir. 1994), the D.C. Circuit held that the Privacy Act protects "only information that actually describes the individual in some way." None of these records contain personal information about you. Finally, the documents responsive to this request are not contained within a Privacy Act system of records the Privacy Act purposes. That is, the documents are kept in FOIA folders or files and retrieved by the FOIA or file number. They are not retrieved by your name or any other identifying particular assigned to you. 5 U.S.C. 552a(a)(6); Henlee v, DOC, 83 F.3d 1453 (D.C. Cir. 1996). For these reasons, you have no independent right outside of the FOIA to access any of these records under the Privacy Act. This is the final decision of the Department of Commerce. You have the right to obtain judicial review of the denial of your FOIA appeal as provided in 5 U.S.C. 552(a)(4)(B). Sincerely, Barbara S. Fredericks Assistant General Counsel for Administration Enclosures =============================================================== UNITED STATES DEPARTMENT OF COMMERCE Office of the General Counsel Washington, D.C. 20230 Ms. Cheryl Mills Deputy Counsel to the President Office of the Counsel to the President The White-House Washington, D.C. 20500 MAY 23 1997 RE: Referral of White House documents in the possession of the Department of Commerce Dear Ms. Mills: Pursuant to procedures set forth by the Associate Attorney General on November 3, 1993, I am enclosing, for White House review and consultation, five documents responsive to two Freedom of Information Act (5 U-S.C. 552) (FOIA) requests to the Department of Commerce. The requests are from Phil Kuntz of The Wall Street Journal (see Tab A) and Charles Smith of Softwar (see Tab B). The Wall Sweet Journal There is one White House document responsive to this request, which seeks contacts to and from White House Official Harold Ickes since January 1993. The responsive record is a letter from Harold Ickes to Manfred Ohrenstein concerning a White House Conference on Trade and Investment in Central and Eastern Europe. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX Softwar Them are four documents responsive to this request, which seeks records concerning six named individuals (including the Vice President and the First Lady) and Project Clipper and encryption software. The first document is a one page White House memorandum from Tom Kalil dated February 26, 1996. XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX The second document s a ten page facsimile, dated October 25, 1994, consisting of one page cover sheet from the National Security Council's Office of Intelligence Programs and a nine page November 2, 1994 cover letter and statement of the U.S. Council for International Business on Liability issues and the Administrations Encryption Initiatives. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX The third document, dated October 10, 1994, is a letter to George Tenet, Special Assistant to the President & Senior Director, Intelligence Programs, from the U.S. Council for International Business and contains a statement dated October 10. 1994 on encryption. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX The fourth document dated April 15, 1993, is a memorandum form the President on Public Encryption Manage Management. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Please advise whether the White House agrees with my analysis of these documents. I am available to provide you with any additional information which your office may need to make a decision. You may contact me at (202) 4824724 or via fax at 482-2552. Sincerely, Thomas G. Aldridge Attorney Advisor Enclosures =============================================================== UNITED STATES DEPARTMENT OF COMMERCE Office of the Secretary Washington, D.C. 20230 May 4, 1998 XXXXXXXXXXXXXX XXXXXXXXXXXXXX <---- Intelligence Agency XXXXXXXXXXXXXX XXXXXXXXXXXXXX Dear XXXXXXXXXX Pursuant to Department of Commerce regulations (15 C.F.R. section 4.6 (a) (4)), we are referring to you for consultation 21 XXXXXXXXXXXXXXXXXXXXXXXXXX documents that are responsive to two Freedom of Information Act (FOIA) requests from Charles R. Smith, SOFTWAR. The documents are biographies of 21 individuals. These documents were included in trip briefing book, which was responsive to the requests. If you have any questions, you may contact me at (202) 482-4257 or write to: U.S. Department of Commerce Room 6020 14th Street & Constitution Avenue, N.W. Washington, D.C. 20230 Sincerely, Bobbie Parsons, FOIA Officer Immediate Office of the Secretary Enclosures ================================================================ graphic image available a in .gif format at http://www.softwar.net/crs.html ================================================================ 1 if by land, 2 if by sea. Paul Revere - encryption 1775 Charles R. Smith SOFTWAR http://www.softwar.net [EMAIL PROTECTED] Pcyphered SIGNATURE: 47D7846BEEA81C7299223B434C505AD5454C98B4DE7DDBBAF60E96CD226183AC D10A49C81158C5EBBC5A230EBA3C05221D6FA4EED26B7569158DBB46DDEE1294 54C22AE62ADE8CFF ================================================================ SOFTWAR EMAIL NEWSLETTER 06/28/99 *** to unsubscribe reply with "unsubscribe" as subject *** ================================================================
