Former CIA Employee Sues Agency Over Its Refusal To Provide Documents In Electronic Form

from the exemption-(f)-u dept

The CIA is still causing problems for Jeffrey Scudder. Scudder used to work for the CIA. He was forced out of the agency after making a FOIA request for "historical documents of long-dormant conflicts and operations" while still employed there. Perhaps the agency thought only citizens outside of the agency should be making FOIA requests. Or maybe it thought Scudder was engaged in a particularly labyrinthine plot to exfiltrate declassified documents out of the agency. Whatever its thought process, it resulted in an FBI raid of Scudder's house, the seizure of his electronics, and the end of his career.

Unfortunately for the CIA, this has given Scudder more time to file FOIA requests and sue the agency when it responds in increasingly ridiculous ways. Scudder has already tangled with the CIA over its refusal to join the 20th century (never mind the current one) when turning over responsive documents. His last major request to the agency asked for "softcopy" -- i.e., not paper -- copies of 419 articles from the CIA's "Studies in Intelligence."

The CIA told him it had no way of providing him documents in the format he asked for. Instead, it claimed it only had one way to comply with the request: the stupidest, most circuitous way.

The defendant [CIA] avers that if it were ordered to honor the plaintiff's [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media..."

Scudder called this an "administrative gimmick" -- something meant to discourage requesters and generate extra FOIA fees. The judge presiding over the case was less kind. She called it "Rube Goldbergian" while pointing out that FOIA law does allow requests to be turned down if they're too burdensome, but that's not an invitation to agencies to turn normal requests into overly burdensome ones by adding several layers of administrative busywork.

It's this case that's cited in Scudder's latest lawsuit against the CIA -- again hoping to force the agency to deliver documents digitally, rather than via a method lying somewhere between the hellish bureaucratic redundancy of Terry Gilliam's "Brazil" and a shoddy steampunk plot point. (To be fair, it could be institutional. The Defense Department itself once turned down a request from MuckRock because it couldn't find any money in its budget to repair/replace the single fax machine it used to receive FOIA requests.) From the filing [PDF] (via The FOIA Project)

Mr. Scudder, joined by three esteemed members of the academic community, now seeks through this new FOIA litigation to resolve once and for all whether CIA’s electronic production policy inextricably conflicts with the agency’s obligations under FOIA. A new FOIA request – outlined below – seeking electronic copies of historical CIA records is ripe for adjudication by this Court. Through this litigation, Mr. Scudder and his colleagues seek to bring CIA’s refusal to adhere to the letter – to say nothing of the spirit – of FOIA to an end.

This is pretty much more of the same for Scudder v. CIA, only this time Scudder brought colleagues: Ken Osgood, Hugh Wilford, and Mark Stout. He's also getting out ahead of the CIA's eventual denials and obtuse claims of technical ineptitude. He's forcing the issue by forcing the CIA to respond well ahead of its usual lackadaisical FOIA response schedule. Even better, he's brought another federal judge's not-at-all-impressed opinion of the CIA's reluctance to familiarize itself with peedee effs and ceedee romms… in 2016.

Hopefully, the court will prevent the CIA from continuing to blow taxpayer dollars on reams of paper, black toner cartridges, and snail mail postage.

Filed Under: cia, foia, jeffrey scudder

CIA Sent FBI Agents After, Ended Career Of 19-Year Employee Over A FOIA Request For Historical Documents

from the open-and-transparent-retaliation dept

It wasn't even whistleblowing, although that too can destroy careers and lives. It was a FOIA request, made by someone who knew exactly which documents he wanted released.

His CIA career included assignments in Africa, Afghanistan and Iraq, but the most perilous posting for Jeffrey Scudder turned out to be a two-year stint in a sleepy office that looks after the agency’s historical files.

It was there that Scudder discovered a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.

To get them released, Scudder submitted a request under the Freedom of Information Act — a step that any citizen can take, but one that is highly unusual for a CIA employee. Four years later, the CIA has released some of those articles and withheld others. It also has forced Scudder out.

"Historical documents of long-dormant conflicts and operations." Scudder dared to ask for these documents, and the CIA cut him loose. It also sent another federal agency after him -- the FBI.

On Nov. 27, 2012, a stream of black cars pulled up in front of Scudder’s home in Ashburn, Va., at 6 a.m. FBI agents seized every computer in the house, including a laptop his daughter had brought home from college for Thanksgiving. They took cellphones, storage devices, DVDs, a Nintendo Game Boy and a journal kept by his wife, a physical therapist in the Loudoun County Schools.

To date, only his daughter has received her laptop back. Every other computer remains in the hands of the FBI, despite the fact that no charges were ever pressed and despite the fact that many of the documents Scudder asked for have been released by the CIA in the interim. More from his request list are due to be released in the near future.

The CIA avails itself of a wide array of FOIA exemptions, but its reluctance to publish historical documents is just baffling -- and is most likely a result of the agency's long-running adversarial relationship with transparency. It's been noted here before that the CIA has used the often-abused b(5) exemption to withhold documents over five decades old (dealing with the Bay of Pigs invasion), claiming that the release of the "sensitive" documents would "confuse the public."

Despite Scudder's efforts, the flow of historical CIA documents will only decrease in the future. The office charged with declassifying historical documents has been closed, deemed expendable by the agency in the face of budget cuts. This workload will be routed through the agency's FOIA office, creating even more incentive for the CIA to stonewall requests.

Scudder never did anything his superiors thought was wrong until after he attempted to free these historical documents. Everything the agency never took issue with during his previous 18 years of employment -- like personal call infractions and the possession of photos (taken by Scudder in his position as "official CIA photographer") deemed "classified" -- was suddenly yet another reason to force him out. It's been clear for a long time that the government doesn't care much for whistleblowers. It also seems to have something against transparency, even concerning documents of historical interest only.

Scudder did nothing criminal. He just did something the agency didn't like. And for that, he lost his job and clearance. So, it's not just whistleblowing that can get you destroyed. It's also holding the government to its own transparency standards -- something that isn't remotely criminal but is apparently completely unforgivable.

Filed Under: cia, classified info, fbi, foia, freedom of information, jeffrey scudder, whistleblowing

CIA Tells FOIA Requester It Can Only Make PDFs By Printing Out Electronic Documents And Re-Scanning Them

from the no-tactic-is-too-stupid-when-it-comes-to-dodging-FOIAs dept

The Freedom of Information Act was supposed to make the government more transparent and responsive to its employers: the American public. The Act has indeed provided a level of transparency that wasn't present before its enactment, but the law is also loaded with a ton of exemptions that make it easy for government agencies to dodge requests.

The Obama administration itself -- the supposed "most transparent administration in history" -- is one of the worst offenders. As Mike covered earlier, administration-directed agencies have abused these exemptions hundreds of thousands of times in the last five years. Even when the agencies have been "responsive," they've still been mostly unresponsive. The FBI's documents on warrantless GPS tracking were handed to the ACLU with 111 pages redacted entirely.

Many other documents are now the subject of ongoing lawsuits against the government for its refusals and redactions. Nearly every document cut loose by the Office of the Director of National Intelligence has been the result of a lawsuit brought by the EFF against the government for violating the Freedom of Information Act.

Secrecy News brings us the story of yet another lawsuit being brought against the government for FOIA-related ridiculousness. Jeffrey Scudder, a 23-year veteran of the intelligence community, is seeking 419 articles from the CIA journal "Studies in Intelligence." He has specifically requested these be provided as "softcopy" (i.e., electronic files), which would only make sense, considering the amount of responsive documents. However, the agency has gone deliberately pants-on-head stupid to make this simple request an annoyance for everyone involved.

Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff "as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located."

However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons.

Citing "security," the CIA decided it would only comply if it could fell a small forest. Obviously, this route is a complete inconvenience for everyone involved. I'm sure the CIA would have preferred Scudder simply drop his request after being confronted with the agency's insistence on performing this task in the least efficient way possible. (Government agencies often tend to less efficiency, especially when it's in service of sandbagging FOIA requesters, who are expected to pick up the tab for the agency's wasteful tactics.)

Scudder refused to take boxes of paper for an answer and requested again that the CIA keeps associated costs down by grabbing the electronic files and burning them to a CD-ROM or two. The CIA responded to Scudder's insistence by hitching up the belt on its head pants.

"The defendant [CIA] avers that if it were ordered to honor the plaintiff's [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media," Judge Howell summarized.

Scudder politely called the CIA's convoluted response process an "administrative gimmick" designed to frustrate the requester and impose "unreasonable financial burdens." Judge Howell sides with Scudder on this.

"Congress anticipated that recalcitrant agencies would resist being responsive to requesters' format choices," wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make "reasonable efforts" to accommodate requesters' preferences.

She called the CIA's process "Rube Goldbergian" and pointed out that, while the law requires responding agencies to make "reasonable efforts" to fulfill requests, that should not be taken to mean that agencies can simply employ convoluted processes in order to make responding suddenly "unreasonable."

Scudder has also pointed out (via Howell's opinion) that he has used the CIA's classified system in the past to create PDFs, something the agency claims is beyond its capabilities. Despite this clearly being an issue of government agency stonewalling, Judge Howell hasn't granted summary judgement to either side, citing both parties' allegations of "bad faith." However, she has granted Scudder's motion for discovery, which means the government will once again appear in court to defend its refusal to follow its own laws.

Filed Under: cia, foia, jeffrey scudder, pdfs, printing out, reasonable, secrecy