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September 25, 2013

Judge slaps CIA on document secrecy

A federal judge has chastised the CIA for “inappropriately” withholding routine documents.

In a recent decision, U.S. District Judge Beryl Howell denounced several of the CIA’s legal arguments. At one point, she accused the CIA of a “shameless twisting of the factual record.”  Other assertions by the agency, she called “dead wrong” and “implausible.”

A non-profit law firm that specializes in national security cases sued the CIA and five other federal agencies over documents concerning compliance with open records laws.

Sounds straightforward. But the firm, known as National Security Counselors, said the CIA dodged its responsibilities under the Freedom of Information Act and mounted “an extended campaign of misrepresentation” related to information it holds.

At one point, an “unidentified third party” handed the firm two classified documents related to the lawsuit, prompting the FBI to confiscate them. Eventually, the CIA provided redacted versions.

The CIA, meanwhile, asserted it could keep secret the records being sought by the firm under a Cold War-era law that created the spy agency and allowed it to withhold personnel information such as salaries and the number of employees.

Howell, who is a federal judge in Washington, D.C., dismissed that argument.

 “The CIA has been reading that provision too broadly,” the judge wrote in her August 15 decision, adding, “as a result, the CIA has inappropriately withheld information.”

Kel McClanahan, the executive director of the firm, described the lawsuit as a public service because “virtually nothing is known” about how the CIA handles such requests.

“It’s laughable that the Agency thought that the training and guidance materials its FOIA analysts use when deciding how to comply with the law are so secret that nobody can know them,” he said, adding “agencies like the CIA just play a numbers game, ignoring setbacks in court with full knowledge that for every aggressive litigant, there are hundreds of requesters who won’t know any better and will just roll over.”

 So far, the six agencies have released thousands of pages of documents to the firm. However, many of the documents are others’ requests for documents. More than 400 documents are still being sought.

In keeping with the agency’s secretive ways, a CIA spokesman refused to comment on the ruling. A court filing said “defendant Central Intelligence Agency (“CIA”) continues to review that opinion and is still determining how to proceed.”

-- Reported by Marisa Taylor



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"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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