After more than a decade of releasing documentation to The Black Vault from the Intellipedia system, the NSA has now seemingly changed their policy, and closed more than twenty cases filed under the Freedom of Information Act (FOIA) spanning the past nine years. This drastically cuts off the public’s right to request millions of pages of information from within that system, and quite possibly setting a dangerous precedent that could affect transparency and alter the way government agencies make decisions on how they process FOIA requests for years to come.
- The NSA has begun issuing a GLOMAR response to all Freedom of Information Act requests relating to the internal Intellipedia system, ending years of limited transparency and potentially hindering public insight into the Intelligence Community’s operations and interests
- This action could set a concerning precedent, potentially limiting future FOIA requests and impeding public access to government information
- The new policy acts as an additional “exemption” not explicitly defined in the FOIA, suggesting government agencies could deny information requests based on internal decisions rather than established exemptions
- The Black Vault, a long-time requester of Intellipedia entries, is not only appealing the denied requests but is also filing new requests seeking documentation to understand the policy change
- Despite attempts to get a comment from the NSA’s public affairs and FOIA offices, no response or further clarification was provided by the publishing of this article
The National Security Agency (NSA) has recently changed its approach to handling Freedom of Information Act (FOIA) requests related to the internal collaborative platform, Intellipedia, which is used to share knowledge across and within the Intelligence Community (IC). Despite having released a long list of articles and category pages that reside within that system for well more than the last decade, the NSA is now issuing what’s known as a “Glomar response” to these requests, a response that refuses to confirm or deny the existence of any relevant documents. This has significant implications for transparency, as Intellipedia has been a valuable resource in the past for understanding the IC’s explorations and interests.
Intellipedia, similar to the concept of Wikipedia, is a system utilized by the IC that allows for the sharing of information among various intelligence agencies. The platform’s pages range from Unclassified to Top Secret, and any affiliate within the IC who obtains an account can create, edit, and update them.
Intellipedia is a project of the Office of the Director of National Intelligence (ODNI) Intelligence Community Enterprise Services (ICES) office headquartered in Fort Meade, Maryland. The NSA handles all FOIA requests relating to it as it serves as the “executive agent” of Intelink, an internal data sharing and collaboration site in which Intellipedia is a part.
In 2017, after a successful FOIA appeal, The Black Vault discovered that Intellipedia had 50,233 content pages within the Unclassified version; 114,502 content pages in the Secret version; and 124,815 content pages in the Top Secret version; millions of additional pages within those three systems that includes other wiki pages, talk pages, and redirects; and finally, the three systems hold more than 600,000 uploaded files for download. Those statistics have likely increased drastically since they were revealed in 2017.
Those millions of pages and files have now been locked out of even being acknowledged, let alone released by the NSA, even though in the past, a large amount of information from Intellipedia has been released in response to FOIA requests and published by The Black Vault. These previously released documents have provided invaluable insight into the IC’s focus and have offered countless useful leads for subsequent FOIA requests.
Category pages and references (or “see also”) sections were invaluable on Intellipedia pages as they could be used for discovering clues to formulate subsequent FOIA requests seeking documents that were not previously known by the general public (click images to enlarge)
Some topics covered and already archived by The Black Vault include the Pentagon Papers, Operation Paperclip, Nuclear Weapon Accidents, Echelon, Nikola Tesla, Interrogation Operations, Fracking, Donald Trump, Cloud Seeding and much more.
However, recent actions by the NSA represent a significant departure from past practice. From May 31 to June 2, 2023, The Black Vault received 22 FOIA case closure notices for requests that span the past 9 years. More denials were even coming in within minutes of this article being published, and more are likely on the way. The Black Vault also received a case closure notice meant for another requester, a mistake indicating that the ramifications of the NSA’s new practice stretch beyond just affecting The Black Vault.
The NSA’s “Glomar response” issued on all recently closed Intellipedia requests neither confirms nor denies the existence of the requested records. The NSA’s rationale for this practice is that confirming or denying the existence of certain records could reveal sensitive information about the targets, sources and methods of the IC, and collection methods.
The NSA’s Glomar response cites several exemptions under the FOIA as the legal basis for its denial of requests. These exemptions allow the withholding of information that is properly classified in the interest of national defense or foreign relations, as well as information specifically protected from disclosure by statute. The cited statutes include Title 18 U.S. Code 798, Title 50 U.S. Code 3024(i), and Section 6, Public Law 86-36 (50 U.S. Code 3605).
Title 18 U.S. Code 798 makes it illegal to disclose classified information related to the United States’ cryptographic systems or communication intelligence activities. The purpose of this law is to prevent unauthorized persons or foreign governments from gaining access to sensitive information that could be detrimental to the United States’ national security.
Title 50 U.S. Code 3024(i) outlines the responsibilities of the Director of National Intelligence, including the provision of intelligence to various government entities and the right to access all national intelligence related to national security.
Public Law 86-36 (50 U.S. Code 3605) pertains to the disclosure of the organization, functions, or activities of the National Security Agency. The language of the statute suggests that it can be used to exempt from disclosure information related to the activities of the NSA or the names, titles, salaries, or numbers of persons employed by the agency.
The NSA’s latest move diverges from the usual application of FOIA exemption (b)(3) and the cited statutes above, due to the fact that these very same statutes have existed for decades prior to Intellipedia even coming into existence, and were never called upon in the past when the NSA released Intellipedia-related records after proper redactions were applied.
For more than ten years, the NSA had the opportunity to use these statutes to withhold Intellipedia documents, but it chose not to. The recent invocation of these previously-unused statutes suggests a significant shift in the NSA’s approach to handling FOIA requests for Intellipedia entries. Something within the NSA’s perspective or policy prompted them to apply these exemptions where they hadn’t before, and this raises substantial questions about the motivations and implications behind this change.
What else might the NSA or other intelligence agencies cut off to prevent archives like The Black Vault from collecting information? This change could set a precedent that severely limits future FOIA requests, hampering public access to government information to not only Intellipedia-related information, but other records as well with no solid reasoning on why.
Although the stated reasoning now stems from numerous statutes as cited in each case closure letter and outlined above, it is unclear why for well more than a decade, the NSA failed to realize those statutes applied and would therefore exempt Intellipedia-related documents from release. This long-standing oversight poses this question: do the statutes actually apply, or are they just being cited as a legal fallback after an internal decision was made based on something not legally justified under FOIA?
The Black Vault attempted to get comment from the NSA’s public affairs office, along with the NSA’s FOIA office, but neither office responded to the request for comment or gave any additional clarification by the time this article was published.
The FOIA was established with the purpose of promoting transparency and accountability in government. The exemptions in place within the FOIA are designed to protect sensitive information and national security, and they provide a system of checks and balances on what information should and should not be released. If these exemptions are properly adhered to, there should be no reason that the release of any number of records – whether it’s 1, 50, or 12,000 – would pose a threat. The combined content of these records, assuming they were all properly vetted for exempted information prior to release, should not give away information that is rightfully classified or sensitive.
However, the NSA’s new blanket “GLOMAR response” to any Intellipedia-related request acts as an additional, de facto “exemption”, one that is not explicitly defined within the FOIA. In other words, information that is not exempted by the FOIA is now seemingly being exempted by the NSA without a clear legal citation, or at the very least, why the legal citation they are utilizing now was missed for well more than a decade.
This sets a concerning precedent, as it suggests that government agencies might have the ability to bypass the established FOIA exemptions and deny information requests based on internal policy decisions made on a whim.
This kind of maneuver could potentially be used to limit the disclosure of information that could be embarrassing, controversial, or simply inconvenient to the agency, even if it doesn’t fall under the specific exemptions outlined in the FOIA. This not only poses a challenge to the spirit of transparency and accountability in government that the FOIA is meant to uphold, but it also potentially opens the door for less scrutiny and oversight of government activities.
An appeal will be filed on all cases closed within the past few days, and any future closures will also be appealed in the same manner. Other FOIA cases will be filed to seek out the reasoning for the shift in the NSA’s practice.
The legal fight on this is far from over.
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FOIA Denial Example
The below is just one of the cases denied. Each letter looked identical, with the exception of the topic of request in quotation marks.
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