The Freedom of Information Act

From Epic Alert 2.03:

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[5] Court Rules National Security Council Not Exempt from FOIA
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U.S. District Judge Charles Richey ruled on February 14 that the
National Security Council (NSC) is an "agency" and therefore subject
to the public disclosure provisions of the Freedom of Information Act
(FOIA).  The decision came in a long-pending lawsuit concerning the
status of White House e-mail messages dating back to the Reagan
administration.  For many years, the NSC had acknowledged its "agency"
status and responded to requests submitted under the FOIA.  The Clinton
administration ended that practice and argued in several lawsuits that
the NSC was not subject to the Act.

In a lengthy opinion, Judge Richey rejected the administration's
position, finding that the National Security Council "exercises
authority independently of the President" (the legal test for "agency"
status).  The Judge noted that, among other things, "the NSC plays a
role in Telecommunications independent of the President. ... By virtue
of a 1990 Directive, an NSC committee is responsible for federal
policies with respect to the security of telecommunications systems."
The cited directive (NSD 42) was released to EPIC staff through
litigation against the NSC in 1992.

The recent decision clears the way for resumed proceedings in Computer
Professionals for Social Responsibility v. National Security Agency,
et al., in which EPIC staff is challenging the withholding of key
documents concerning the Clipper Chip.  Proceedings in the case were
suspended pending resolution of the National Security Council's status
-- the NSC is a co-defendant in the Clipper case and played a leading
role in the development of the government's key-escrow encryption
initiative.  According to EPIC Legal Counsel David Sobel, "NSC
documents are crucial to public understanding of government encryption
policy.  The court's rejection of the administration's position is
extremely significant and will greatly enhance oversight in this
area."