Freedom of Information Request: Azure OpenAI Service usage at the Department of Defense

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Public reports show that Microsoft's Azure cloud platform powers the Department of Defense's (DoD's) cloud computing efforts, specifically its Joint Warfighting Cloud Capability (JWCC) effort. (https://www.microsoft.com/en-us/federal/JWCC.aspx & https://azure.microsoft.com/en-us/explore/global-infrastructure/government). The Azure OpenAI Service, a managed service provided in partnership with OpenAI, is available to Azure cloud customers.

I am requesting:

1) All instructional materials, presentation materials (including PowerPoint files, prepared remarks and slide formats) and other guidance about usage of the Azure OpenAI Service produced by the DoD.

2) A copy of any use policies, standard operating procedures, data retention policies, legal opinions, warrants, non-disclosure agreements, liability waivers, insurance agreements, letters of interest, usage policies or informal agreements between the DoD and Microsoft regarding the Azure OpenAI Service. Please include any of the above between government agencies and Microsoft as well as OpenAI.

3) A copy of any funding opportunity announcements, grant applications and grantor status/ progress reports, reports to legislative bodies, annual reports that mention the Azure OpenAI Service, as well as audit records, including but not limited to security audits of the software, misuse reports and reports to oversight bodies.

4) Any digital communications including but not limited to emails and text messages as well as documents (including but not limited to PDF, word processing, spreadsheets and slide documents) that mention the Azure OpenAI Service (including all attachments) between the DoD and Microsoft as well as OpenAI.

5) Any case reports in which the Azure OpenAI Service was disconnected, shut down or changed in some way due to privacy or security concerns.

6) Any digital communications (including but not limited to emails and text messages) between the DoD and Microsoft (@microsoft.com), OpenAI (@openai.com) or their representatives.

To help narrow the extent of the responsive documents, please limit searches to: April 15, 2024 through the time this request is processed. Please delivery these documents on a rolling basis as responsive documents are found.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Kyle Wiggers

I'd like to appeal the decision.

See:

I am writing to appeal the decision made by the Department of Defense (DoD) Freedom of Information Division regarding my FOIA request. The basis for this appeal is as follows:

1) Improper Referral: The DoD FOIA office stated that my request was "misdirected" and suggested that the Defense Information Systems Agency (DISA) might have cognizance over some of the requested information. However, under 5 U.S.C. § 552(a)(6)(A)(ii) and DoD Regulation 5400.7-R, C1.5.6.5, the receiving agency has a duty to forward the request to the appropriate component or agency if it determines it does not have the requested records. The DoD should have forwarded my request to DISA or any other relevant components rather than closing the request.

2) Overly Broad Claim: The response claimed that my request was "overly broad." However, my original request included specific date ranges (April 15, 2024, through the time of processing), specific types of documents, and a clear subject matter (Azure OpenAI Service usage at the Department of Defense). This level of specificity should be sufficient for a proper search, as required by 5 U.S.C. § 552(a)(3)(A).

3) Failure to Conduct a Search: There is no indication in the response that any search for responsive records was conducted within OSD/JS or any other DoD component. FOIA requires agencies to conduct a reasonable search for responsive records, as established in Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). This failure to conduct a search violates 5 U.S.C. § 552(a)(3)(C).

4) Incomplete Response: The response failed to address all aspects of my request. For instance, it did not address whether there were any records related to the Joint Warfighting Cloud Capability (JWCC) effort, which was specifically mentioned in my request. This failure to fully respond violates 5 U.S.C. § 552(a)(6)(A)(i).

5) Lack of Segmentation: If only parts of my request were overly broad or directed to the wrong component, the DoD had an obligation to process those portions of the request that were clear and directed to the correct component, as per the "reasonably segregable" requirement in 5 U.S.C. § 552(b).

Given these issues, I request that you:

1) Conduct a thorough search for responsive records within all relevant DoD components, including but not limited to OSD/JS and DISA.

2) Forward my request to any other relevant DoD components or other federal agencies that may have responsive records.

3) Provide all responsive records or, if necessary, a Vaughn index detailing any withholdings.

Thank you for your attention to this matter. I look forward to your response within 20 working days.

I'm following up on the appeal.

I'm following up on the appeal.