From: Colin G. Gallagher

167 Pebble Place

Marina CA 93933

August 19, 2015

To: NSA / CSS FOIA / PA Appeal Authority (DJ4)

National Security Agency

9800 Savage Road STE 6248

Fort George G. Meade MD 20755-6248

Re.: Appeal of National Security Agency decision on FOIA Case 81402

Dear National Security Agency Administrator(s),

Recently I received a letter from the NSA, dated 26 June 2015 on the matter of the FOIA Case 81402, responding to my FOIA request which sought in part, "NSA records pertaining to myself, Colin Gerard Gallagher, which would have been collected by the NSA under programs authorized by Sections 206 and 215 of the USA PATRIOT Act, and Section 6001(a) of the IRTPA, aforementioned programs and sections which are now expired as of the date of this request (June 1, 2015) (...) Records sought by this request include, but would not be limited to any NSA records collected on my person as a result of use of Sections 206 or 215 of the USA PATRIOT Act, or Section 6001(a) of the IRTPA, from Oct. 26, 2001 to the date of expiration and sunset of those Sections on midnight May 31st 2015."

The letter from the NSA contained a "Glomar response." In short, this means that the agency has chosen not to acknowledge the existence or non-existence of the information that I requested (refer to my June 1 request). On this point, the subject matter relating to the material I have requested is already a matter of public disclosure, and thus arguably can be disclosed via this FOIA request. For example, it is well known and reported that FISA court order(s) are used in order to perform state business, and is not a secret. It is a matter of public record. Part of my FOIA request is "- FISA court order(s) or FISA court documents which name Colin Gerard Gallagher (my person)." Similarly, "Documentation of roving wiretaps which would include my person," a portion of my request which refers to "roving wiretaps," refers to the techniques which are public, and in no way are secret; any information which would be released about use of "roving wiretaps" on my person would be based, in part, on something that is already a matter of full public knowledge as roving wiretaps were originally authorized publicly under amendments made to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Statute") in 1988 by the Electronic Communications Privacy Act, and was later expanded by section 604 of the Intelligence Authorization Act for Fiscal Year 1999; and on May 26, 2011, the U.S. Senate voted to extend the provisions of the 2001 USA PATRIOT Act to search business records and allow for roving wiretaps. The roving wiretap provision of the Patriot Act briefly expired on Jun 1, 2015, but was restored the next day by enactment of the USA Freedom Act.

This brings me to one of my final points in this appeal, and that is the matter of the timing of my FOIA request. As you know, I submitted my FOIA request on June 1, 2015, at the very time when the programs authorized by Sections 206 and 215 (including the roving wiretap provision) of the USA PATRIOT Act, and Section 6001(a) of the IRTPA, expired.

Effectively, what this meant was that during that brief window of opportunity, there was no longer any legal authority for the programs to continue (with the exception of investigations that began, or potential alleged offenses that took place, before the sunset date), but I could file a FOIA request about what was happening within them. And I did. Therefore, I have appealed the NSA's determination, because the cessation of legal authority for these programs (for however brief a period), coupled with the public disclosure that has already occurred regarding various elements of the information which I have sought via my FOIA request, justifies the appeal. The prior decision should be overturned and information I have requested should be given to me at the earliest possible opportunity.

Furthermore, the Glomar response sent to me stated in part, "The existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive Order 13526 (...) Subparagraph (c)...Section 1.4." That section of the Executive Order reads:

"Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:"

"intelligence activities (including covert action), intelligence sources or methods, or cryptology;"

It is highly questionable that any information which would potentially result from my FOIA request would merit classification, and it the original decision is inadequate, particularly in light of the:

- public disclosure of the techniques which I have requested information or records about in a manner which concerns my person (as mentioned above in this appeal)

- the sunset of legal authority of the programs mentioned in this appeal and in the FOIA request (Case 81402) and the timing of the submittal of my request

- The failure of the agency to respond timely to the FOIA request (Case 81402), as the response was not sent within the time required by law

- Dubious use of Exemption 3

As amended, Exemption 3 allows the withholding of information prohibited

from disclosure by another statute only if one of two disjunctive requirements are

met: the statute either "(A) requires that the matters be withheld from the public in

such a manner as to leave no discretion on the issue, or (B) establishes particular

criteria for withholding or refers to particular types of matters to be withheld." A

statute thus falls within the exemption's coverage if it satisfies any one of its

disjunctive requirements.

I believe that there has been a failure to establish appropriate criteria for withholding and thus, if the agency if it feels justified in partial disclosure and partial withholding, should describe more particularly (see (B) above) what criteria will be used or what particular matters will be withheld.

I trust that upon reconsideration, you will reverse the decision denying me access to this material and grant my original request. I expect to receive your decision within 20 business days, as is required by statute.

Respectfully,

Colin Gallagher