39.
As of the filing of this Complaint, Plaintiff has not received a response to his
request to the FBI with a final determination as to whether the FBI will release the requested records.
NSA 40.
According to the records of the U.S. Postal Service, the FOIA request to the NSA
described in Paragraph 21 was received by the NSA on December 21, 2013. 41.
The NSA assigned Mr. Shapiro’s FOIA request tracking number 76029.
42.
In a letter dated December 31, 2013, the NSA responded by referring Mr. Shapiro
to a “previusly [sic] released” Cryptolog document mentioning Mandela, but otherwise denying the request on the basis that, pursuant to Exemptions 1 and 3, NSA can neither confirm nor deny the existence or non-existence of records responsive to Mr. Shapiro’s request. 43.
Specifically, with respect to Exemption 1, NSA’s December 31, 2013 letter
claimed that the existence or non-existence of records about Mandela is a properly classified matter under Executive Order 13526 § 1.4(c), a provision which allows the government to keep secret “intelligence activities (including covert action), intelligence sources or methods, or cryptology,” but only when “unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security[.]” 44.
Specifically, with respect to Exemption 3, NSA’s December 31, 2013 letter
claimed that the fact of the existence or non-existence of the information requested is exempted from disclosure pursuant to The Espionage Act of 1917 (18 U.S.C. § 798); The National Security Act of 1947 (50 U.S.C. § 3024(i)); and The National Security Agency Act of 1959 (50 U.S.C. § 3605).
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