Court Rules in Favor of Selective Disclosure

The Central Intelligence Agency can selectively disclose classified information to reporters while withholding that very same information from a requester under the Freedom of Information Act, a federal court ruled last month.

The ruling came in a FOIA lawsuit brought by reporter Adam Johnson who sought a copy of emails sent to reporters Siobhan Gorman of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times that the CIA said were classified and exempt from disclosure.

“The Director of Central Intelligence is free to disclose classified information about CIA sources and methods selectively, if he concludes that it is necessary to do so in order to protect those intelligence sources and methods, and no court can second guess his decision,” wrote Chief Judge Colleen J. McMahon of the Southern District of New York in a decision in favor of the CIA that was released last week with minor redactions.

The Freedom of Information Act is a tool that can change as it is used, whether for the better or the worse, especially since FOIA case law rests on precedent. That means that a FOIA lawsuit that is ill-advised or poorly argued or that simply fails for any reason can alter the legal landscape to the disadvantage of future requesters. In particular, as anticipated a few months ago, “a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.” That is what has now happened.

The shift is starkly illustrated by comparing the statements of Judge McMahon early in the case, when she seemed to identify with the plaintiff’s perspective, and her own final ruling that coincided instead with the CIA’s position.

“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,” she had previously stated in a January 30 order.

“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,” which was exactly the plaintiff’s point.

“I suppose it is possible,” she added in a cautionary footnote, “that the Government does not consider members of the press to be part of ‘the public.’ I do.”

But this congenial (to the plaintiff) point of view would soon be abandoned by the court. By the end of the case, the mere act of disclosure to one or more members of the press would no longer be deemed equivalent to “public disclosure” for purposes of waiving an exemption from disclosure under FOIA.

Instead, Judge McMahon would come to accept, as the CIA argued in a February 14 brief, that “a limited disclosure of information to three journalists does not constitute a disclosure to the public. Where, as here, the record shows that the classified and statutorily protected information at issue has not entered the public domain, there is no waiver of FOIA’s exemptions.”

Plaintiff Johnson objected that “the Government cannot define ‘public’ to mean members of the public it is not disclosing information to.”

“The Government’s position that it may selectively disclose without waiver, if it has the best of intentions, knows no logical limits and would render the FOIA waiver doctrine a nullity,” he wrote. “The CIA’s motive in releasing the information is irrelevant under FOIA. Whether good reason, bad reason, or no reason at all, what matters is that an authorized disclosure took place. If the CIA does not wish to waive its secrecy prerogative, it cannot authorize a disclosure to a member of the public.”

In an amicus brief, several FOIA advocacy groups presented a subtle technical argument in support of the plaintiff. Under the circumstances, they concluded, the court had no choice but to order disclosure. “It does not matter… how much alleged damage the release of the information could cause.”

But these counterarguments proved unpersuasive to the court, and Judge McMahon ended up with a new conception of what constitutes the kind of prior “public disclosure” that would compel release of information under FOIA. Selective disclosure to individual reporters would not qualify.

“For something to be ‘public,’ it has to, in some sense, be accessible to members of the general public,” she now held in her final opinion.

“Selective disclosure of protectable information to an organ of the press… does not create a ‘truly public’ record of that information.” So CIA cannot be forced to disclose it to others. This was exactly the opposite of the view expressed by Judge McMahon earlier in the case.

The ruling was a defeat for the FOIA in the sense that it affirmed and strengthened a barrier to disclosure.

But it might also be considered a victory for the press, to the extent that it enables exchange of classified information with reporters off the record. Had the court compelled disclosure of the classified CIA emails to reporters Gorman, Ignatius and Shane, that would likely have reduced or eliminated the willingness of agencies to share classified information with reporters, as they occasionally do.

But the practice of selective disclosure has risks of its own, wrote plaintiff’s attorney Dan Novack last year. It “allow[s] the government to hypocritically release sensitive national security information when it suits its public relations interests without fear of being held to its own standard later.”

A Forum for Classified Research on Cybersecurity

By definition, scientists who perform classified research cannot take full advantage of the standard practice of peer review and publication to assure the quality of their work and to disseminate their findings. Instead, military and intelligence agencies tend to provide limited disclosure of classified research to a select, security-cleared audience.

In 2013, the US intelligence community created a new classified journal on cybersecurity called the Journal of Sensitive Cyber Research and Engineering (JSCoRE).

The National Security Agency has just released a redacted version of the tables of contents of the first three volumes of JSCoRE in response to a request under the Freedom of Information Act.

JSCoRE “provides a forum to balance exchange of scientific information while protecting sensitive information detail,” according to the ODNI budget justification book for FY2014 (at p. 233). “Until now, authors conducting non-public cybersecurity research had no widely-recognized high-quality secure venue in which to publish their results. JSCoRE is the first of its kind peer-reviewed journal advancing such engineering results and case studies.”

The titles listed in the newly disclosed JSCoRE tables of contents are not very informative — e.g. “Flexible Adaptive Policy Enforcement for Cross Domain Solutions” — and many of them have been redacted.

However, one title that NSA withheld from release under FOIA was publicly cited in a Government Accountability Office report last year:  “The Darkness of Things: Anticipating Obstacles to Intelligence Community Realization of the Internet of Things Opportunity,” JSCoRE, vol. 3, no. 1 (2015)(TS//SI//NF).

“JSCoRE may reside where few can lay eyes on it, but it has plenty of company,” wrote David Malakoff in Science Magazine in 2013. “Worldwide, intelligence services and military forces have long published secret journals” — such as DARPA’s old Journal of Defense Research — “that often touch on technical topics. The demand for restricted outlets is bound to grow as governments classify more information.”

US Gifts to Foreign Individuals Reported

The Obama Administration gave dozens of wrist watches to various foreign leaders in 2014.

A newly released State Department report to Congress lists all of the gifts presented by President Obama, Mrs. Obama, Vice President Biden, Mrs. Biden, and Secretary of State Kerry to foreign individuals.

The 32 page report reflects the fact that the presentation of gifts is a customary feature of personal encounters between US and foreign leaders, as is the recording and reporting of each gift.

Based on the descriptions in the report, most of the gifts seem generic and unimaginative, not reflecting any particularized esteem. The most common gift was a “custom men’s watch in a wooden presentation box with inscription plaque” with a reported value of $465.

One exception was a “custom seed chest… containing nine varieties of American seeds” (declared value $1964.87) that was presented to Pope Francis. Also noteworthy is a rare edition of a book about the 1893 World’s Congress of Religions that featured Swami Vivekananda and other luminaries (declared value $1375 — but now half that price on Amazon) that was given to Indian Prime Minister Narendra Modi.

The report on gifts from the United States to foreign individuals in FY2014 was released under the Freedom of Information Act following a three-year processing delay.

DOE Seeks to End MOX Plutonium Disposal Program

The Trump Administration requested $220 million next year “to continue the orderly and safe closure of the Mixed Oxide (MOX) Fuel Fabrication Facility.”

The MOX Fuel Fabrication Facility was intended to eliminate excess weapons-grade plutonium by blending it with uranium oxide to produce a “mixed oxide” that is not suitable for nuclear weapons. The Administration proposes instead to pursue a “dilute and dispose” approach.

Termination of the MOX Facility in South Carolina had previously been proposed — but not approved — in budget requests for the last two years, due to mounting costs.

“Construction remains significantly over budget and behind schedule,” the Department of Energy said in a November 2017 report to Congress. “The MOX production objective was not met in 2015 or 2016 and will not be met in 2017.”

“Due to the increasing costs of constructing and operating the MOX facility, both the Department’s analysis and independent analyses of U.S. plutonium disposition strategies have consistently and repeatedly concluded that the MOX fuel strategy is more costly and requires more annual funding than the dilute and dispose approach,” the DOE report said. The report was released by DOE under the Freedom of Information Act.

Though disfavored by the Administration, the MOX program has a champion in South Carolina Senator Lindsay Graham. “I will fight like crazy” to preserve it unless he is convinced that a superior alternative exists, he said at a February 8 hearing of the Senate Armed Services Committee.

Detailed background on the MOX program can be found in Mixed-Oxide Fuel Fabrication Plant and Plutonium Disposition: Management and Policy Issues, Congressional Research Service, December 14, 2017.

The latest proposal to terminate the MOX program was reported in “Aiken County legislators unsurprised by Trump’s anti-MOX budget” by Colin Demarest, Aiken Standard, February 19.

CIA Defends Selective Disclosure to Reporters

The Central Intelligence Agency said yesterday that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.

FOIA requester Adam Johnson had obtained CIA emails sent to various members of the press including some that were redacted as classified. How, he wondered, could the CIA give information to uncleared reporters — in this case Siobhan Gorman (then) of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times — and yet refuse to give it to him? In an effort to discover the secret messages, he filed a FOIA lawsuit.

His question is a good one, said Chief Judge Colleen McMahon of the Southern District of New York in a court order last month. “The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter [or three].”

“In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private,” she wrote. “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?”

Judge McMahon therefore ordered CIA to prepare a more rigorous justification of its legal position. It was filed by the government yesterday.

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from “unauthorized” disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. “The CIA properly exercised its broad discretion to provide certain limited information to the three reporters.”

“The Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken,” the CIA response stated. “The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA’s exemptions.”

A reply from plaintiff Adam Johnson is due March 1. (Prior coverage: Tech Dirt, Intel Today).

Selective disclosure of classified information to uncleared reporters is a more or less established practice that is recognized by Congress, which has required periodic reporting to Congress of such disclosures. See Disclosing Classified Info to the Press — With Permission, Secrecy News, January 4, 2017.

The nature of FOIA litigation is such that a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.

Release of Security Clearance Data Delayed

Recent news stories on security clearances (like these from the Christian Science Monitor and NPR) cite data from 2015 regarding the number of persons cleared for access to classified information (4.2 million at that time).

Why aren’t more current numbers being cited?

More recent information has already been compiled in an annual report to Congress that was completed in October 2017. But its release to the public has been delayed indefinitely by an internal intelligence community dispute over the classification status or sensitivity of some of the more detailed reporting on individual agency statistics that are contained in the report.

In fact, the same detailed reporting was provided in the 2015 report and the same dispute over publication arose. But at that time, Obama Administration intelligence officials told security officers in effect to “knock it off” and to just release the report, which they did in June 2016.

The public disclosure of security clearance data was one of dozens of fundamental changes to national security information policy that were made during the Obama Administration to promote greater transparency. Although the annual report on security clearances was required by Congress (in the FY 10 intelligence authorization act), its public disclosure was a choice made by the Obama Administration. Now a different choice is being made.

A FOIA request for release of the latest report on security clearances is pending.

CSI: Palestine

The U.S. State Department provided crime scene investigation (CSI) equipment to Palestinian security forces to encourage a “move away from a confession-based investigation process,” according to a 2016 report to Congress that was recently released under the Freedom of Information Act.

See U.S. Assistance for Palestinian Security Forces and Benchmarks for Palestinian Security Assistance Funds, FY 2016 report to Congress, US Department of State.

The report provides a snapshot of US security assistance to the Palestinian Authority (PA) in March-August 2016, when the US provided training as well as technical support to enhance the quality and professionalism of Palestinian security practices. The report also describes steps taken by the State Department to ensure that any such assistance would not be diverted to unauthorized purposes.

U.S. support for PA security forces and the criminal justice sector in the West Bank has averaged around $100 million since 2008, according to the Congressional Research Service, though the amount has declined in recent years.

This funding “has been given to train, reform, advise, house, and provide nonlethal equipment for PA civil security forces in the West Bank loyal to President Abbas. This aid is aimed at countering militants from organizations such as Hamas and Palestine Islamic Jihad-Shaqaqi Faction, and establishing the rule of law for an expected Palestinian state.” See U.S. Foreign Aid to the Palestinians by Jim Zanotti, Congressional Research Service, December 16, 2016.

Prior background on the origins of US-Palestinian cooperation was presented by CRS in U.S. Security Assistance to the Palestinian Authority, January 8, 2010.

Some Palestinian critics object to the US security assistance program as an improper intervention in Palestinian politics that effectively strengthens Israeli occupation of the West Bank. See How US security aid to PA sustains Israel’s occupation by Alaa Tartir, Al Jazeera, December 2, 2016.

The current state of implementation of the Freedom of Information Act at the State Department is such that even a request for a specified unclassified document — such as the 2016 report to Congress on security assistance to the Palestinian Authority — took nearly two years to fulfill.

Update: Amir Oren reported on the State Department document in Walla news (in Hebrew).

US-China Scientific Cooperation “Mutually Beneficial”

The US and China have successfully carried out a wide range of cooperative science and technology projects in recent years, the State Department told Congress last year in a newly released report.

Joint programs between government agencies on topics ranging from pest control to elephant conservation to clean energy evidently worked to the benefit of both countries.

“Science and technology engagement with the United States continues to be highly valued by the Chinese government,” the report said.

At the same time, “Cooperative activities also accelerated scientific progress in the United States and provided significant direct benefit to a range of U.S. technical agencies.”

The 2016 biennial report to Congress, released last week under the Freedom of Information Act, describes programs that were ongoing in 2014-2015.

See Implementation of Agreement between the United States and China on Science and Technology, report to Congress, US Department of State, April 2016.

DoD Again Seeks FOIA Exemption for Military Tactics

For the third time, the Department of Defense is asking Congress to enact a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of TTPs or rules of engagement that will be employed in such operations,” DoD said in its legislative proposals for the FY2018 defense authorization act. “If an adversary or potential adversary has knowledge of this information, the adversary will gain invaluable knowledge on how our forces operate in given situations.”

“Military TTPs and rules of engagement are analogous to law enforcement techniques and procedures, which Congress has afforded protection,” DoD said. See section 1003 of DoD’s proposed defense authorization act for FY2018.

DoD is not seeking to exempt all TTP records as a class. Rather, the proposal is that specified TTP information could be withheld under FOIA if the Secretary of Defense determined in writing that its disclosure would be likely to provide “an operational military advantage to an adversary” and that the public interest in the information does not outweigh the potential risk. This determination would have to be made personally by the Secretary of Defense, and could not be delegated. It would require a written justification that would have to be available to the public on request.

Similar legislative proposals were introduced by the Department of Defense in the past two years.

Wary of any move to expand DoD’s authority to withhold information, however, many advocates of open government opposed the measure. Truly sensitive military information could be classified, they argued, and an existing FOIA exemption “more than adequately protects such information.” In any event, despite repeated requests, the DoD proposal was not approved by Congress.

The Department of Defense and the military services (especially the Army) generate dozens if not hundreds of doctrinal publications every day. Many of them are closely held, but many others are freely published. The latter, at least, would seem to be outside the scope of the proposed new exemption for TTPs and rules of engagement, if it were ever enacted.

A new document on DoD interactions with foreign security forces, of interest to some, was posted online by DoD this week. See Security Cooperation, Joint Publication 3-20, May 23, 2017.

Number of FOIA Requests Reaches Record High

Federal government agencies received more Freedom of Information Act requests last year than ever before, the Justice Department reported last week, reflecting a steadily growing demand for access to government information.

Nearly 790,000 FOIA requests were received in FY 2016, an increase of more than 10% from the year before. The majority of requests were submitted to the Departments of Homeland Security, Justice, Defense, Veterans Affairs, and the National Archives.

Approximately 760,000 requests were processed throughout the year (including denials, and administrative or procedural closures). Requests were fully granted in 23.1% of the the cases, and partially granted in 36.8% of them.

The total estimated cost of implementing the FOIA in 2016 was more than $500 million. Fees collected from requesters recovered less than 1% of that amount, the DOJ report said. See Summary of Fiscal Year 2016 Annual FOIA Reports Published, DOJ Office of Information Policy, May 3.

Almost everyone involved with the FOIA — requesters as well as agencies — seems to be dissatisfied with the way the process works. It can be excruciatingly slow, with response times often counted in years. Decisions to withhold information frequently appear arbitrary, excessive or otherwise inappropriate. The system is inequitable, as super-users who file hundreds or thousands of requests (and those who are able and willing to litigate their requests in court) consume disproportionate amounts of government resources, putting more occasional requesters at a disadvantage. And so on.

These are mostly complaints that the FOIA has failed to live up to expectations.

A deeper criticism would be that the FOIA process as it currently exists is not simply inadequate, it is positively counterproductive.

“FOIA not only fails to deliver on ostensible goals such as participatory policymaking, equal access to information, and full agency disclosure, but also has evolved to subvert some of these goals as well as other public law values,” writes David E. Pozen of Columbia Law School in a blistering new critique.

FOIA “systematically skews the production of information toward commercial interests and facilitates powerful antiregulatory agendas. The inadequacies of FOIA’s original design have been exacerbated by external developments, including the decline of the traditional news media and the rise of hyper-adversarial watchdog groups on the right. Our veneration of FOIA has blinded us to the politics of FOIA.”

“The most promising path forward,” he suggests, “involves displacing FOIA requests as the lynchpin of transparency policy and shoring up alternative strategies, above all affirmative disclosure frameworks that release information in the absence of a request.”

Counterexamples and counterarguments will likely occur to many readers of his article, though the author has anticipated many of those. One possible conclusion that might emerge from Pozen’s thoughtful critique is that while FOIA is still needed to pursue contested areas where government is reluctant to disclose information, it is poorly suited to serve as the primary foundation or anchor of open government.

See Freedom of Information Beyond the Freedom of Information Act by David E. Pozen, University of Pennsylvania Law Review, vol. 165, pp. 1097-1158, 2017.