FOIA Exemption for CIA “Operational Files” at Issue

Last March, the conservative watchdog group Judicial Watch filed a Freedom of Information Act lawsuit against the Central Intelligence Agency seeking a copy of “all pornographic material” collected during the May 2011 military operation that killed Osama bin Laden.

In opposition, CIA argued that “responsive records, if any, would be contained in operational files,” and that “the CIA Information Act exempts the CIA’s operational files from FOIA’s search and disclosure requirements.”

There is indeed an exemption from FOIA for CIA operational files, but the scope and the proper application of the exemption are in dispute. If the requested pornographic records do qualify for the “operational files” designation, as CIA holds, then they do not need to be assembled, reviewed or released in response to Judicial Watch’s request.

But whether they do so qualify is not a perfectly simple question, since the operational files exemption has various technical limitations and exceptions.

Judicial Watch said the bin Laden pornography falls within the “special activity” exception to the operational files exemption. “The ‘special activity’ exception applies to records concerning a specific covert action that has been publicly disclosed or acknowledged,” wrote attorney Michael Bekesha of Judicial Watch.

As evidence that the bin Laden raid was in fact a covert action that has been publicly disclosed, Judicial Watch cited a quotation from then-CIA Director Leon Panetta, who described it on the PBS Newshour, saying that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.”

Remarkably, however, CIA insisted that Panetta “did not acknowledge that the operation was conducted under covert action authorities.”

“The term ‘covert operation’ [used by Panetta] is not synonymous with a ‘covert action,’ nor is Mr. Panetta’s description of the raid as ‘covert’ an acknowledgement of a ‘covert action’,” said CIA’s Antoinette B. Shiner in a declaration last month.

Judicial Watch moved to strike that CIA declaration as improper, particularly since it was not based on personal knowledge of Panetta’s intent.

That particular issue, and the case as a whole, now await resolution by Judge Ketanji Brown Jackson of the DC District Court.

In an aside, attorneys for CIA questioned the plaintiff’s motivation for filing the lawsuit. “It is hard to imagine how dissemination of pornographic materials allegedly seized during the Bin Laden raid could inform the public in any meaningful way about what the United States government is up to — the core, animating purpose of FOIA — much less advance Judicial Watch’s professed mission ‘to promote transparency, accountability, and integrity in government and fidelity to the rule of law’.”

But the Freedom of Information Act does not require that requesters be motivated by some constructive purpose. Under FOIA, any person may request any government record for any reason, or for no reason at all. The bar to entry and the costs of participation are practically non-existent.

For its part, Judicial Watch defended its approach. “We’re filling multiple roles here in a Washington where the traditional vehicles for government accountability have broken down,” said Tom Fitton, president of the organization, in a recent profile in the New York Times. (“Group’s Tactic on Hillary Clinton: Sue Her Again and Again” by Jonathan Mahler, October 12.)

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Last week, the Central Intelligence Agency released the conclusions of its 2015 “decennial review” of operational file designations, as required by the CIA Information Act of 1984. The exercise is supposed to refine and revalidate the use of the operational files category as an exemption from FOIA.

But although CIA went through the motions of requesting public comments on the matter last year, the Agency did not directly respond to any of those comments in its April 2016 report to Congress. For the most part, the results of the third decennial review track closely with those of the second decennial review in 2005. The new report does not explicitly reference Clandestine Service History Program Files, however, among a few other changes in wording. The significance of that is unclear.

The latest review did not identify any categories of records that were to be removed from the operational files category, as was done in report on the first decennial review in 1995.

CIA Releases Draft History of Bay of Pigs

The Central Intelligence Agency yesterday released a long-sought draft of the fifth volume of its internal history of the 1961 invasion of the Bay of Pigs.

The release was among the first tangible results of this year’s amendments to the Freedom of Information Act, which imposed a 25 year limit on the exemption for “deliberative” files. As a result, the 1984 draft history could no longer be legally withheld.

CIA said in a cover note that “This fifth draft volume was not publishable in its present form, in the judgment of CIA Chief Historians as well as other reviewers, because of serious shortcomings in scholarship, its polemical tone, and its failure to add significantly to an understanding of the controversy over the Bay of Pigs operation.”

Indeed, the new “volume is strange, in some respects, and interesting,” said Villanova Prof. David M. Barrett, who had filed a lawsuit last summer for release of the draft history.

“Essentially, it is a critical history of the Inspector General’s critical report on Bay of Pigs, which mainly blamed CIA incompetence for the failure at Bay of Pigs.  [The author, CIA historian Jack] Pfeiffer says IG Lyman Kirkpatrick’s report was, itself, biased and incompetent.  Pfeiffer says the most obvious cause of failure at Bay of Pigs was JFK’s decision to cancel a planned 2nd airstrike in support of the invaders at Bay of Pigs,” Barrett said.

He noted several highlights:

Author Pfeiffer describes one of the IG report’s authors as probably mentally ill (p. 75).  Writing in about 1983, Pfeiffer says that CIA had kept the IG report and other internal analyses of Bay of Pigs classified Secret in order to avoid airing its “dirty laundry.” (p. 4).

Pfeiffer says CIA hired a couple of people to write the true story of Bay of Pigs with the hope of having Life Magazine or another outlet publish it.  Only State Dept objections stopped that from being pursued, though the authors did write the article. (p. 87-90)

At the end, Pfeiffer suggests in a footnote that the history program (where he worked!) should probably be abolished, and the raw materials it possessed should be destroyed; the Operations Directorate was hostile to it, and it was hard to see the point of the program. (p. 146) [Correction: The views expressed in the footnote on page 146 are those of other CIA officials, not Pfeiffer’s.]

“Not quite earth-shaking history, but I think the real story is that CIA spent much effort and money over the past 5 years to prevent [release] of this document,” Barrett said.

The National Security Archive, which had previously filed suit to obtain the document, hailed its release here.

FOIA Improvement Act Signed Into Law

President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act of 2016 yesterday.

The Act places a 25 year limit on the use of the deliberative process exemption, codifies a presumption of openness, and makes various procedural improvements in the FOIA. The Department of Justice summarized its understanding of the new law here.

The White House portrayed the law as consistent with its own record of promoting open government.

“I am very proud of all the work we’ve done to try to make government more open and responsive, but I know that people haven’t always been satisfied with the speed with which they’re getting responses and requests,” President Obama said at an Oval Office signing ceremony. “Hopefully this is going to help and be an important initiative for us to continue on the reform path.”

A White House fact sheet said that more would be done. “The Administration is taking a number of steps to further the progress made since 2009, ensuring that this Administration’s track record of openness is institutionalized throughout government and carries forward for years to come.”

But the new FOIA law explicitly provides no new resources for implementation. So in the face of rising and, in fact, unconstrained demand from some FOIA users, it is unclear how much improvement the FOIA Improvement Act can be expected to generate for the average requester.

“In honor of Congress’ passage of FOIA reform bill, I just submitted approx 700 new #FOIA requests to FBI,” tweeted FOIA campaigner Ryan Shapiro on June 14. He did not appear to be joking.

Congress Passes FOIA Improvement Act

The House of Representatives yesterday approved the Freedom of Information Act Improvement Act, which had previously been adopted by the Senate. If signed by President Obama, as expected, it will strengthen several provisions of the FOIA and should enhance disclosure of government records.

The bill “reaffirms the public’s right to know and puts in place several reforms to stop agencies from slowly eroding the effectiveness of using FOIA to exercise that right,” said Rep. Mark Meadows (R-NC).

“The most important reform is the presumption of openness,” according to Rep. Meadows. “Before claiming an exemption [from disclosure under FOIA], agencies must first determine whether they could reasonably foresee an actual harm.”

“The bill would also put a 25-year sunset on exemption 5 of FOIA, the deliberative process exemption,” added Rep. Carolyn Maloney (D-NY). “It would modernize FOIA by requiring the Office of Management and Budget to create a central FOIA Web site for requesters to submit their request, making it more efficient and accessible to the public.”

“This bill would strengthen the independence and the role of the Office of Government Information Services [the FOIA ombudsman]. OGIS has served a critical role since it was formed in response to the last FOIA reform Congress adopted in 2007,” she noted.

The bill does not address structural challenges facing FOIA, which is designed to serve individual requesters, not the public as a whole. Nor does the bill provide any additional resources for implementing FOIA, which currently consumes hundreds of millions of dollars per year with ambiguous results.

“We have a whole process and money and people devoted to FOIA and I just don’t think it’s getting to the heart of what FOIA’s about,” said Meredith Fuchs, former General Counsel of the Consumer Financial Protection Bureau, last March. “I don’t think it’s the real way to keep government accountable.”

Such criticism from a government official would be unremarkable, except that Ms. Fuchs used to be a litigator for FOIA requesters against government agencies (and years ago she contributed an amicus brief for one of my own lawsuits). She spoke at a fascinating session of the Freedom of Information Day 2016 conference at the Newseum that featured former non-governmental FOIA advocates who have gone into government service.

Tom Blanton of the National Security Archive presented a ringing endorsement of the FOIA’s efficacy as a tool for government accountability at a recent Columbia Law School conference on the fiftieth anniversary of FOIA (beginning around the 50′ mark).

Passage of the FOIA Improvement Act was hailed yesterday by Senator Patrick Leahy, the National Security Archive, Openthegovernment.org, the Project on Government Oversight, and the Sunshine in Government Initiative, among other supporters of the measure.

DoD: Some FOIA Requesters “Try to Monopolize the System”

Criticism of the Freedom of Information Act is frequently directed at the way that agencies implement the FOIA process, or the ways that they fail to do so. Requesters complain that responses to requests are delayed, often for years, that exemptions from disclosures are interpreted too broadly or in self-serving ways, and that fee waivers are arbitrarily withheld. It sometimes seems to be necessary to file a lawsuit just in order to get an agency’s attention.

But it turns out that government agencies also have complaints of their own, including what they consider to be abusive behavior by some FOIA requesters.

The latest report from the Department of Defense Chief FOIA Officer notes that some DOD components are “overwhelmed by one or two requesters who try to monopolize the system by filing a large number of requests or submitting disparate requests in groups which require a great deal of administrative time to adjudicate.”

“For instance, one particular requester singlehandedly filed three requests with SOUTHCOM, 53 requests with AFRICOM, 35 requests with SOCOM and 217 requests with OSD/JS [Office of the Secretary of Defense/Joint Staff] for a total of 308 cases this fiscal year alone. For AFRICOM, this represents 43% of their entire incoming requests for the year and 12% for SOCOM. This requester holds over 13% of the currently open and pending requests with OSD/JS and over the past two years has filed 415 initial requests and 54 appeals with this one component,” the 2016 DoD Chief FOIA Officer report said.

One of the marvels of the Freedom of Information Act is that it enables any person to request any government record (more or less) and to compel an agency to respond. But the same asymmetry that allows a private individual to challenge a multi-billion dollar government agency and, with an adequate legal argument, to prevail, also makes it possible to destabilize the system.

In what is arguably a flaw in the legislative drafting of the FOIA, it is entirely permissible for a person to file dozens or hundreds of requests in a matter of days, at little or no cost to himself, and to obligate the government the government to respond to each one. So while the “supply” of government resources to respond to FOIA requests is constrained by agency budgets, the “demand” from requesters is effectively unchecked. The growth of backlogged requests is a predictable consequence. [I myself have more than a dozen requests pending at the Office of Secretary of Defense, though they were filed over a period of years. I don’t recall being charged by DoD for responding to my requests.]

The practice by some individual FOIA requesters of flooding the system not only monopolizes agency attention, it also places more discriminating or occasional requesters at a disadvantage. When those requesters then file lawsuits because an agency has failed to respond, the system is driven further out of alignment.

“As a result of litigation increases over the previous five years, as well as high profile litigation referrals from agencies outside DoD, specifically from State Department concerning former Secretary Clinton’s emails during this reporting period, FOID [the Office of Secretary of Defense FOI Division] has increased resource transfers from the OSD/JS Initial Processing Office to assist LSO [the Litigation Support Office] in execution of court-driven rolling and final FOIA releases,” the DoD Chief FOIA Officer report said.

“This process adversely affects initial request processing which usually leads to more litigation and disgruntled requesters who do not understand why the Requester Service Centers and Public Liaisons cannot provide more satisfactory solutions. Many components report that additional personnel would be beneficial in resolving their backlogs and complex cases but looming budgetary and personnel cuts, particularly in headquarters elements, across DoD do not promise easy or fast resolutions.”

One conceivable response to this state of affairs would be for Congress to ask the Government Accountability Office to estimate the cost of bringing the FOIA process into full compliance with the law, taking into account the current demand from requesters, which dwarfs that of past years. Then Congress could decide either to appropriate that amount of money, or to adjust the requirements of the law to match the available resources. (To address the specific problem of individuals filing vastly disproportionate numbers of requests, one could imagine imposing filing fees or fee recovery procedures for those filing more than a certain number of requests in a given period of time.)

The pending legislation known as the FOIA Improvement Act, which includes several important FOIA policy provisions, does not acknowledge a need for any additional resources to meet the growing demands on FOIA. To the contrary, it says that even the new requirements of the Act, if enacted, “shall be carried out using amounts otherwise authorized or appropriated.”

Update: Author Nick Turse was apparently the FOIA requester that the DoD Chief FOIA Officer had in mind. He presents his perspective here.

Redacted Intelligence Budget Documents Released

For the coming decade, the Department of Defense Military Intelligence Program (MIP) will focus its new investments “on space protection, enhancing capabilities that provide intelligence in Anti-Access / Area Denial environments, improving intelligence support to Cyber operations, and improving Security.”

So says the FY 2016 Congressional Budget Justification Book for the MIP, which was released this week in heavily redacted form under the Freedom of Information Act.

Though the majority of the document has been withheld, the released portions nevertheless contain fragmentary observations of interest.

For example, “budget uncertainty impeded efforts to develop and maintain language professionals at the highest levels of proficiency to meet the challenges posed by our adversaries.”

“DoD fell two points short of meeting its FY 2014 target to fill 52% of Defense Intelligence Enterprise government authorized language-required positions with individuals possessing the required language proficiency, with a total fill rate of 49.4%.”

Earlier this month, the National Geospatial-Intelligence Agency also released minimal unclassified portions of its FY2015 Congressional Budget Justification Book.

DoD Again Seeks FOIA Exemption for Military Doctrine

The Department of Defense last week asked Congress to enact a new exemption from the Freedom of Information Act for military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. A similar request by DoD last year was not acted upon by Congress.

DoD justified its current proposal as a military necessity, and as a matter of common sense:

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of the tactics, techniques, and procedures that will be employed in such operations. If an adversary or potential adversary has knowledge of such information, the adversary will be better able to identify and exploit any weaknesses, and the defense of the homeland, success of the operation, and the lives of U.S. military forces will be seriously jeopardized.”

This year’s proposal was drafted as an amendment to the existing FOIA exemption for DoD critical infrastructure. So it has some noteworthy features that were not included in last year’s proposal: The use of the exemption would require a written determination by the Secretary of Defense that the public interest does not outweigh the need to protect the information. The Secretary would also have to prepare a written statement of the basis for the use of the exemption. “All such determinations and statements of basis shall be available to the public, upon request….”

The large majority of military doctrinal publications are unclassified and publicly available. A relatively small number are classified and unavailable. But there is a middle category of unclassified publications whose distribution is restricted, which the proposed amendment aims to preserve.

Some recent Army titles that fall in that middle category include, for example: Special Forces Air Operations (ATP 3-18.10), Special Operations Communications System (ATP 3-05.60), and Countering Explosive Hazards (ATP 3-34.20). The Department of Defense does not readily release such titles today, even in the absence of the proposed amendment. But in order to withhold them under FOIA, it must engage in some dubious legal acrobatics, or else practice delay and defiance.

The proposed new FOIA amendment was included in a package of legislative proposals that DoD transmitted to Congress on March 10, 2016.

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The FOIA Improvement Act (S. 337 and HR 653), which includes several provisions that are intended to promote increased disclosure through FOIA, currently awaits consideration in the Senate. It has already been passed by the House. “It is my hope that Democrats and Republicans can come together and pass this commonsense legislation this week,” said Sen. Patrick Leahy yesterday in a Sunshine Week address at the National Archives.

But the FOIA Improvement Act does not confront the structural flaws in the law that have yielded the current logjam in FOIA processing. Nor does it acknowledge the radical mismatch between the amount of money and personnel that would be required to implement the FOIA as written and the funds that Congress has actually appropriated for that purpose.

To the contrary, “No additional funds are authorized to carry out the requirements of this Act,” the FOIA Improvement Act states.

House Poised to Pass FOIA Amendments

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it “would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters.”

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that “would adversely affect intelligence sources and methods” that are protected. The term “adversely affect” is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won’t produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded– with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

DoD Seeks FOIA Exemption for Military Doctrine

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy“significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

Competencies of Intelligence Community Employees

Employees of the U.S. intelligence community are expected to be bold, innovative and imbued with moral courage.

At least, those are the desired qualities that are defined in a series of Intelligence Community Standards (ICS) first issued in 2008 that have just been released under the Freedom of Information Act.

Even a non-supervisory employee at levels GS-15 and below is expected (under ICS 610-3) to demonstrate creative thinking (he or she “designs new methods and tools where established methods and procedures are inapplicable, unavailable, or ineffective”); to consider alternative points of view (she “seeks out, evaluates, and integrates a variety of perspectives”); and to display intellectual integrity (he “exhibits courage when conveying views, presenting new ideas, and making/executing decisions irrespective of potentially adverse personal consequences. Does not alter judgments in the face of social or political pressure.”).

Higher-level, supervisory personnel are to do all of that, and more (ICS 610-4).

And senior officers (ICS 610-5) “are expected to personally embody, advance and reinforce IC core values: a Commitment to selfless service and excellence in support of the IC’s mission, as well as to preserving, protecting, and defending the Nation’s laws and liberties; the integrity and Courage (moral, intellectual, and physical) to seek and speak the truth, to innovate, and to change things for the better, regardless of personal or professional risk.”

Considering the state of the species, it would be remarkable if more than a small fraction of the IC workforce comes close to meeting the lofty standards for performance and conduct that are described here. But perhaps these statements of expectations themselves serve a wholesome, instructive purpose, making their own fulfillment somewhat more likely.

And the standards are more than rhetorical flights. They are to be used (pursuant to Intelligence Community Directive 610) for “qualification, training, career development, performance evaluation, [and] promotion.”