Judge Tells CIA It Can't Hand Classified Info To Journalists And Pretend The Info Hasn't Been Made Public

from the release-to-one-is-still-release-to-all,-legally-speaking dept

The CIA is spectacularly terrible at responding to FOIA requests. It's so bad it's highly possible the perceived ineptness is deliberate. The CIA simply does not want to release documents. If it can't find enough FOIA exemptions to throw at the requester, it gets creative.

A FOIA request for emails pertaining to the repeated and extended downtime suffered by the (irony!) CIA's FOIA request portal was met with demands for more specifics from the requester. The CIA wanted things the requester would only know after receiving the emails he requested, like senders, recipients, and email subject lines.

The CIA sat on another records request for six years before sending a letter to the requester telling him the request would be closed if he did not respond. To be fair, the agency had provided him a response of sorts five years earlier: a copy of his own FOIA request, claiming it was the only document the agency could locate containing the phrase "records system."

In yet another example of CIA deviousness, the agency told a requester the documents requested would take 28 years and over $100,000 to compile. Then it went even further. During the resulting FOIA lawsuit, the DOJ claimed the job was simply too impossible to undertake. Less than 2 months after MuckRock's successful lawsuit, the entire database went live at the CIA's website -- more than 27 years ahead of schedule.

This is the CIA's antipathy towards the FOIA process on display. It takes a lawsuit to get it to produce documents. And what we have here is more CIA recalcitrance being undercut by an FOIA lawsuit.

Journalist Adam Johnson sued the agency early last year for its refusal to produce correspondence between the CIA's Office of Public Affairs and prominent journalists. Johnson did receive copies of these emails, but the CIA redacted the emails they had sent to journalists. (The journalists' response were left unredacted.) Since the emails obviously weren't redacted when they were sent to journalists, Johnson challenged the redactions in court.

The government argued it had a right to disclose classified information to journalists. And it certainly can. The CIA can waive classification if it so desires. But what it can't do is claim it has never released this classified info to the public -- not if it's handing it out to journalists.

Daniel Novak is representing the journalist in his FOIA lawsuit. And he reports the judge is no more impressed by the CIA's arguments than his client is. The decision [PDF] is redacted but some very nice bench slaps have been left untouched... like this one, which sums up the ridiculousness of the CIA's arguments.

CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose). In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.

The government cited 1981's Phillippi case -- the one that saddled us with the infamous "Glomar response" -- in support of its assertions that it did not waive classification when it disclosed classified info to certain journalists. The court says that case doesn't discuss the CIA's apparently voluntary decision to feed classified info to the press, which is explicitly a waiver. Unlike the Glomar/Phillippi case, the CIA's own press office divulged classified info to members of the public. The court says the government can't have it both ways: it can't hand classified info to one journalist then tell another it can't disclose info it already made public (even if in a very limited fashion).

Contrary to the Government's suggestion, Phillippi does not announce that limited disclosure of information that the CIA is not supposed to disclose can never operate as a waiver. It does not authorize the Government to distinguish between "trusted journalists" and other journalists. It simply does not address either the facts facing this court or the legal implication of those facts at all.

If harm comes from further public disclosure following the relinquishment of the documents to Johnson, well, that's the CIA's fault.

The Government's effort to focus the Court's attention on the very real danger to [redacted] only underscores the lack of wisdom of CIA's risky (and apparently discontinued) selective disclosure program.

The opinion also contains this pointed footnote, appended to discussion of the CIA's assertion it can hand over classified info to journalists and still pretend the info hasn't been made public.

I suppose it is possible that the Government does not consider members of the press to be part of "the public." I do.

The few remaining redactions the CIA handed to Johnson haven't been unredacted yet. The bulk of emails have been uncensored as a result of this lawsuit. There are a few the court is still holding back on, but it's a very small percentage of the total. Those may see the unredacted light of day, though. While the court is giving the CIA one more attempt to submit a credible argument in favor of continued redaction, the presiding judge clearly isn't impressed with the efforts the agency has made so far.

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Filed Under: cia, foia, glomar, leaks, transparency