CIA must re-examine nondisclosure claims for FOIA requests, judge rules

Ruling is second significant legal victory in a Knight FOI Fund-supported case announced in the last month.

COLUMBIA, Mo. (August 26, 2013) -- In a major ruling in a case supported by the Knight FOI Fund, a Washington DC-based federal district judge has ruled that the Central Intelligence Agency cannot use the CIA Act of 1949 as a catchall rationale for avoiding disclosures under the federal Freedom of Information Act (FOIA).

The ruling by U.S. District Court Judge Beryl A. Howell, which may or may not be appealed, is a victory for attorney Kel McClanahan and Virginia-based National Security Counselors, which had been awarded grants from the National Freedom of Information Coalition (NFOIC) to support the legal action it began in 2011.

But in forcing the federal spy agency to re-examine its broad interpretation of its nondisclosure prerogatives under FOIA, information-seeking efforts by scores of other historians, journalists and researchers may also be affected.

McClanahan said that if the CIA abides by the spirit of the ruling, it could have significant impact on the public's and the media's ability to obtain information and on the manner in which the agency conducts its business.

“Basically, this should mean that if you request information from the CIA that has nothing to do with secret intelligence operations that are justifiably classified or intelligence sources and methods, or is specifically about personnel and personnel records, you should get it,” McClanahan said.

“No one wants to force them to release information of a sensitive, national security nature,” he said. “However, they should release information that is not specifically protected under the Freedom of Information Act or the CIA Act.”

Ken Bunting, executive director of the University of Missouri-based NFOIC, called the ruling “an important victory for transparency” and said his organization and the Knight FOI Fund were happy they had a hand in helping National Security Counselors win the case.

“Congress never intended for intelligence agencies to have a carte blanche, blanket exemption from FOIA. This is an important ruling that will stifle the CIA in its long-running efforts to create such a blanket exemption out of whole cloth,” Bunting said.

Judge Howell wrote in her 163-page opinion that the CIA was seeking to apply an “overly broad” interpretation of federal laws that “would come dangerously close to exempting from disclosure ‘any information at all about anything the CIA does’.”

Howell rejected such a broad interpretation of the 68-year-old CIA Act, writing in her ruling: “Although the CIA characterizes the plaintiff’s interpretation . . . as ‘hyper-semantic’ and ‘extreme’ in its narrowness, the CIA’ s sweeping construction . . . is no less so in the opposite direction of breadth.”

McClanahan said that “the judge saw that the CIA was doing this horrible thing and was using a strained interpretation of the CIA Act to withhold scads of information that it had no justifiable reasons to not release.” For instance, he said, the agency was even withholding things like information regarding its internal guidelines and training materials for dealing with FOIA requests from the public and the media.

McClanahan said it remains to be seen if the CIA will fully comply with the spirit of the judge's ruling. He pointed out that the agency has a history of adjusting its patterns and practices to essentially sidestep full compliance with judicial FOIA rulings.

“Will the CIA abide by the ruling? That's a good question. I'd like to say 'yes,' but they have a history . . .,” McClanahan said.

Bunting noted that the day after Howell's ruling, the Washington Post published a story regarding an internal audit that found that the National Security Agency had frequently broken privacy rules and overstepped its legal authority in surveillance operations. Three days later the CIA, for the first time, declassified documents showing it played a role in Iran's 1953 military coup that brought the shah to power.

Although the National Security Counselors suit may not have had a direct impact on the CIA's decision to release that information, the timing is noteworthy, Bunting said.

McClanahan said that while the judge's decision is wide-ranging, one of the key elements of her ruling holds that the CIA Act only protects the release of personnel information, not information regarding the functions of the agency.

“This is easily the most significant portion of the ruling in the case, as it fundamentally condemns the CIA's most widely used withholding claim,” McClanahan said. The CIA frequently denies the release of almost any information by saying that “personnel are involved in everything the agency does,” he said. According to the CIA’s 2013 Annual FOIA Report, the CIA invoked the CIA Act 2,208 times, compared with 2,112 invocations of Exemption (b)(1) (classified information).

Other important elements of Howell's ruling hold that:

  • Agencies cannot have a general policy of refusing to recognize assignments of FOIA requests even though there may be some individual cases in which an agency would be right to refuse to recognize an assignment.
  • The CIA cannot blanketly refuse to mark exemptions next to redactions in documents where more than one exemption is claimed.
  • Agencies must explain their information search methodologies in a non-contradictory fashion and interpret FOIA requests broadly.
  • Training documents are not human resource documents, meaning they are not “personnel records” and can't be withheld under the CIA Act's specified exemptions.

McClanahan said he was pleased with the ruling and a little surprised that the judge “lambasted the CIA the way that she did for them using buzzwords to deny the release of information.”

For instance, as one point in her ruling, Howell criticized the CIA for its “shameless twisting of the factual record in this case” to portray the handling of FOIA requests “in a better light.”

“Frankly, the CIA's argument . . . appears to boil down to a concern with ensuring that the agency can present a rosier picture of its compliance with the time limits of FOIA, rather than any concern regarding an undue burden” placed on the agency by such requests, Howell wrote.

McClanahan said that all in all, Howell's ruling in this case should make it harder for the CIA to “to come up with new, creative ways to withhold information,” something he contends the agency has a long history of doing.

The NFOIC is a nonpartisan coalition of open government groups and advocates headquartered at the Missouri School of Journalism. The Knight FOI Fund was begun in 2010 as a half-million dollar perpetual litigation fund under a $2 million, three-year grant to NFOIC and the University from the John S. and James L. Knight Foundation. The Knight FOI Fund is set up to assist the pursuit of important open government cases by helping to defray upfront costs such as filing fees, depositions, court costs and other expenses associated with legal actions.

In addition to support for meritorious legal access cases under state and local public disclosure and open meetings laws, the FOI Fund may also support litigants in anti-SLAPP (Strategic Lawsuits Against Public Participation) suits, SLAPP defenses, important appellate cases and federal FOIA cases where citizen and journalist access to important public record information might be enhanced.

Since it began in January 2010, the Knight FOI Fund has assisted litigants with 35 grant awards in FOI or access cases. While some are still being adjudicated, Knight Fund-supported cases have resulted in 22 favorable court orders or settlements that achieved more transparency or greater access.

The win for McClanahan and National Security Counselors was the second significant legal victory in a case supported by the Knight FOI Fund announced by NFOIC this month. Three weeks ago a Seattle-area housing agency announced a series of transparency reforms after a public housing tenant brought a lawsuit under Washington state open meetings and open records laws.

Earlier notable Knight FOI Fund legal victories have included a California case that kept the nation's largest public pension fund from hiding details of a $100 million real estate investment loss; a case that forced Wisconsin governor Scott Walker to release more than 8,000 emails; and another Washington state case, Doe v. Reed, which involved access to election-qualifying petitions. The Knight Fund only seeks reimbursement —or any kind of recovery of the Knight FOI Fund investments—if resulting awards in the cases cover fees and costs for which the Knight Fund money was spent.

National Security Counselors was founded to further the twin ideals that the public needs to be as informed as possible about what its government does in the name of national security, and that people entangled in legal matters in this field should have reasonable access to knowledgeable legal assistance, regardless of income. To that end, NSC exists to: lawfully acquire from the government material related to national security matters and distribute it to the public; use this material in the creation of original publications discussing the respective subjects; advocate for intelligent reform in the national security and information and privacy arenas, and; provide a low-cost alternative to certain deserving clients involved in security law or information and privacy law-related proceedings. For more, visit http://nationalsecuritylaw.org/.

NFOIC is a national network of state freedom of information advocates, citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys. Its mission is to foster government transparency at the state and local level. A unit of the Missouri School of Journalism, the NFOIC is an affiliate of the Donald W. Reynolds Journalism Institute, and is based at the University of Missouri, home to the nation's oldest FOI Center. For more, visit http://www.nfoic.org/.

The John S. and James L. Knight Foundation supports transformational ideas that promote quality journalism, advance media innovation, engage communities and foster the arts. The Foundation believes that democracy thrives when people and communities are informed and engaged. For more, visit http://www.knightfoundation.org/.

CONTACT:

Kenneth F. Bunting, Executive Director
NATIONAL FREEDOM OF INFORMATION COALITION
101E Reynolds Journalism Institute
Columbia, MO 65211
573.882.3075
buntingk@missouri.edu