Secrecy News

FAS Wins FOIA Lawsuit Over NRO Budget Documents

In a rare victory for public access to intelligence agency records, a federal court yesterday ordered (pdf) the National Reconnaissance Office (NRO) to process its FY 2006 budget request for release under the Freedom of Information Act.

Judge Reggie B. Walton of the D.C. District Court granted a motion filed by the Federation of American Scientists to compel the NRO to comply with the FOIA.

FAS had requested disclosure of unclassified portions of the NRO budget request. Such records have been released to FAS in the past.

But the NRO, the agency which develops U.S. intelligence satellites, rejected the request with the novel claim that the budget documents were exempt from the FOIA under the exemption for highly sensitive “operational files.”

Operational files at the NRO are those records that “document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.” Such files are exempt from search and review under the FOIA pursuant to 50 U.S.C. 432a.

Similar operational file exemptions to the FOIA are held by other intelligence agencies including CIA, NSA, NGA, and DIA. Never before had any agency (including NRO) denied a request for budget records by claiming that they were “operational.”

If the operational file exemption were permitted to cover routine administrative documents such as budget records, then an enormous swath of unclassified government records could be unilaterally removed from the reach of the FOIA simply by designating them “operational.”

In this case, Judge Walton ruled, the exemption does not apply. He ordered the NRO to process the requested budget records under the FOIA.

“The Court …finds that the CBJB [i.e., the NRO Congressional Budget Justification Book] is not protected by [the operational files] exemption from the FOIA’s search and review requirements, and the defendant [NRO] must therefore perform these tasks and disclose those parts of the CBJB which must be released under [the FOIA],” he concluded.

See Judge Walton’s July 24 ruling in Steven Aftergood v. National Reconnaissance Office, D.C. District Case No. 05-1307.

Judge Walton’s narrowly crafted opinion did not resolve the question of whether or not the budget documents can actually be considered “operational” files.

Instead, he ruled that even if they are operational, the exemption for operational files does not apply in this case because the budget records have been disseminated outside of their original file location. Under the terms of the statute, such dissemination nullifies the exemption.

In particular, he cited the NRO’s own admission that the “CBJB was disseminated to the DNI for approval and for inclusion in the President’s budget.”

The effectiveness of Judge Walton’s ruling may be short-lived, however, if legislation now pending in the Senate version of the 2007 intelligence authorization act is enacted into law.

That Senate bill would dictate that “protected operational files provided by elements of the Intelligence Community to the Office of the DNI carry with them any exemption such files had from Freedom of Information Act (FOIA) requirements for search, review, publication, or disclosure” (Senate Report 109-259 on section 411 of S. 3237). In other words, dissemination of exempted NRO operational records to the DNI would no longer nullify the exemption, if the Senate language is adopted.

The FAS lawsuit against the NRO benefitted from a masterful amicus brief prepared by Meredith Fuchs, general counsel at the National Security Archive, and Matthew B. Archer-Beck, now of the law firm Sidley Austin, in which they discussed the legislative history of the operational files exemption and the proper limits of its application. Senator Ron Wyden (D-OR) wrote a letter attesting to the fact that the requested NRO budget records had been disseminated to Congress.

Those and other selected case files can be found here.

A prior release of unclassified NRO budget request records from FY 1998 is available here.