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27 June 1998
Source: Hardcopy from William H. Payne

See related documents: http://jya.com/whpfiles.htm

> |  | U.S. Department of Justice |
> |  | United States Attorney District of New Mexico |
> _________________________________________________________________
> |  | Post Office Box 607 Albuquerque, New Mexico 87103 | 505-766-3341 505/766-2868 FAX 505-766-8517
>     June 22, 1998

>     William H. Payne
>     13015 Calle de Sandias
>     Albuquerque, New Mexico 87191

>               Re:  Payne v. National Security Agency
>                    USDC NM CIV 97-0266 SC/DJS

>     Dear Mr. Payne,

>            Enclosed is a court-endorsed copy of defendant's Motion and
>     Memorandum for Remand of Plaintiff payne's First FOIA Request with
>     Instructions and Request for Stay of Judicial Proceedings.

>                                            Sincerely,

>                                            JOHN J. KELLY
>                                            United States Attorney

>                                            [Signature (yh)]

>                                            JAN ELIZABETH MITCHELL
>                                            Assistant U.S. Attorney

>     JEM/yh
>     Enclosure

> COPY

> FILED
> UNITES STATES DISTRICT COURT
> DISTRICT OF NEW MEXICO
> 98 JUN 22 AM 10:27
> Robert M. Marsh
> CLERK-ALBUQUERQUE

> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
> WILLIAM H. PAYNE | ) |

> > Plaintiff,

> )

> > vs.

> )
> CIVIL 97-0266 SC/DJS
> NATIONAL SECURITY AGENCY | ) |

> > Defendant.

> )

> MOTION AND MEMORANDUM FOR REMAND OF
> PLAINTIFF PAYNE'S FIRST FOIA REQUEST WITH INSTRUCTIONS
> AND REQUEST FOR STAY OF JUDICIAL PROCEEDINGS

> As a result of the Court's April 30, 1998, Opinion and Order, there remain two FOIA requests for records before this Court. One is Plaintiff Payne's request for Iranian and Libyan messages and translations, referred to in prior pleadings and the Court's Order as Plaintiff's second request. With regard to this request, the Court has ordered the Agency to provide it with a Classified, in camera ex parte declaration to assist the Court in deciding Defendant's Motion for Summary Judgment. The other request, Plaintiff Payne's first request concerning technical information on six algorithms, is in a different posture and is the subject of this Motion and Memorandum for Remand.

> In its Order, the Court denied Defendant's Motion for Partial Dismissal of Plaintiffs first request, which had been made on the basis that the Plaintiff had not exhausted his administrative remedies. The Defendant's

> [1]

> position was that Plaintiff had been notified that he must pay, in advance, a search fee of $1,267.50 which Plaintiff neither paid nor appealed. Thus, Defendant argued that Plaintiff had failed to exhaust his administrative remedies. The Court disagreed with Defendant's position and held that the Plaintiff had exhausted and has stated a claim upon which relief can be granted. (Page 8 of the Court's Opinion and Order). The Court, therefore, denied Defendant's Motion for Partial Dismissal. The Court made no further order nor did it instruct the Agency to take any further action with regard to this request. As to the current status of the first FOIA request, because Mr. Payne did not pay the requested fee, no further action was taken except to close the file and remove it from the queue of FOIA requests being processed by Defendant. Therefore, because no action has been taken by the National Security Agency on Plaintiff's first request, there are no substantive issues pertaining to the FOIA request before the Court.

> The National Security Agency is prepared to resume processing Plaintiff's first request for technical information on the six algorithms upon an order of the Court to do so. In its discussion of Plaintiff's right to sue on this request the Court noted, at footnote 17, that "[t]his is not to say that Plaintiff is under no obligation to pay reasonable statutorily allowable search or duplication fees." (Emphasis original.) The Defendant therefore seeks an order from this Court remanding Plaintiff's first request to the Agency for further processing and requests an order instructing Plaintiff Payne to pay the fees requested within a reasonable, but clearly stated period of time. Upon receipt of the search fee, the Agency will

> 2

> begin the search for the requested records. It must be noted, however, that a search for this material does not imply that all or indeed any of the records collected in the search will be released to Plaintiff. In the experience of the Agency, the type of information requested is likely to contain a high percentage of classified or otherwise exempt information.

> The Agency is also prepared to treat this request as though no intervening events occurred which means that it will be placed in the first-in first-out queue where it would have been had it not been closed for failure to pay the requested search fee. The latest statistics from the Agency FOIA Office show that there are 390 requests in this queue and that current estimates indicate that requests received today will be completed in approximately five years. Therefore, as Plaintiff's request would have already been in queue for one and a half years at this time, after receipt of the required fees, processing of Plaintiff's request would be expected to be completed in approximately three and one half years. During the processing time, Defendant respectfully requests that the Court stay any further judicial proceedings concerning Plaintiffs first FOIA request.

> Pro se Plaintiff Payne was contacted on June 19, 1998 and does not concur in the granting of this Motion and Memorandum.

> WHEREFORE, Defendant respectfully requests that the Court remand Plaintiff's first FOIA request back to the National Security Agency, direct that Plaintiff Payne pay the search or duplication fees, and because there are no substantive issues before the Court on the first FOIA request, stay any further

> 3

> judicial proceeding on this FOIA request pending processing of said request by the Agency.

> > > > Respectfully submitted

> > > > JOHN H. KELLY
> > > > United States Attorney

> > > > [Signature]

> > > > JAN ELIZABETH MITCHELL
> > > > Assistant U.S. Attorney
> > > > P.O. Box 607
> > > > Albuquerque, NM 87103
> > > > (505) 346-7274

> OF COUNSEL:

> Susan A. Arnold
> Assistant General Counsel
> (Civil Litigation/Admin. Law)
> Office of the Chief Counsel
> National Security Agency
> Ft. George G. Meade, MI) 20755-6000

> I HEREBY CERTIFY that a true copy
> of the foregoing pleading was mailed
> to pro se Plaintiff, on June 22, 1998.

> [Signature]

> JAN ELIZABETH MITCHELL
> Assistant U.S. Attorney

> 4

> [End]

> Transcription and HTML by JYA/Urban Deadline