November 5, 2008
Court Rebukes CIA on Freedom of Information, Recognizes Journalists, Not CIA, Determine What Is News
CIA Ordered to Treat National Security Archive as Representative of the News Media for All FOIA Requests
For more information contact:
Meredith Fuchs - 202/994-7000
Washington D.C., November 5, 2008 - In a striking rebuke to the Central Intelligence Agency (CIA), Judge Gladys Kessler of the United States District Court for the District of Columbia yesterday rejected the CIA’s view that it—and not journalists—has the right to determine which Freedom of Information Act (FOIA) requests are newsworthy.
Reconsidering its earlier decision deferring to the CIA’s written assurances that the agency would cease illegally denying the National Security Archive’s news media status, the court ordered the CIA to treat the Archive as a representative of the news media for all of its pending and future non-commercial requests. Finding that the CIA “has twice made highly misleading representations to the Archive, as well as to [the] Court,” the court explained that the CIA’s position “is truly hard to take seriously” and enjoined the CIA from illegally denying the Archive’s news media status.
“The CIA's long-running failure to treat the Archive’s FOIA requests in accordance with clearly established law, together with its persistent lack of candor with the court, raise serious concerns about what else the CIA may be doing to obstruct the public's legitimate efforts to learn about the agency's past and present activities,” said Pat Carome, counsel for the Archive from WilmerHale LLP. “Judge Kessler's ruling represents a stern reminder to the CIA that it must live up to our nation's open government laws.”
“Sadly, it took us 28 months, repeated CIA misrepresentations to the court, and extensive litigation to get the CIA to do a simple thing—to follow the law,” commented the Archive’s General Counsel, Meredith Fuchs. “This case shows why the OPEN Government Act of 2007 was so sorely needed and why Congress is to be commended for making the FOIA a priority. The Freedom of Information Act is stronger today thanks to the amendments and a court that was willing to enforce the law.”
The Archive’s lawsuit was filed 28 months ago after the CIA ignored a 1990 court order and rejected the Archive’s news media status for 43 requests. The agency claimed the requests did not relate to newsworthy topics and refused to recognize the Archive’s publication activities as determinative of news media status. Following extensive but unsuccessful efforts to halt the CIA’s illegal practices through administrative appeals and negotiations, the Archive filed suit. After no response or defense by the CIA, the Archive filed for summary judgment on September 8, 2006. Late that same evening, the CIA purported to reverse its prior determinations regarding the 43 FOIA requests. In its September 8, 2006, letter the CIA also promised that it would treat the Archive as a “representative of the news media” for all of the Archive’s future non-commercial requests. The Court took the CIA at its word and dismissed the lawsuit.
In the meantime, however, the CIA began denying news media status again. The Archive attempted to resolve the issue directly with the agency, but the CIA refused to even consider the Archive’s administrative appeals. Thereafter, the Archive returned to court to seek reconsideration of the court’s dismissal based on the CIA’s continuing illegal practices. In response to the Archive’s motion, on September 5, 2008, the CIA again sent an eleventh hour letter on the day its court filing was due, this time purporting to “sincerely apologize” for its “administrative mistake” of denying news media status even after it assured the court it would follow the law. Then, on the next business day, the CIA again failed to grant the Archive news media status, in direct contravention of the “sincere apology” letter they filed with the court.
In granting the Archive’s motion for reconsideration, Judge Kessler characterized the CIA’s conduct as “extraordinary misbehavior” and concluded that “the Defendants’ past actions strongly suggest that their alleged misconduct will recur.” Deeming the CIA’s apologies and voluntary reversals insufficient, the court reconsidered the merits of the case and concluded that the CIA’s denials of the Archive’s news media status were unlawful. The court ordered that “the CIA must treat the Archive as a representative of the news media for all pending and future non-commercial FOIA requests.”
Court Opinion Ordering CIA to Grant News Media Status
CIA September 5, 2008, Apology Letter for Failing to Grant News Media Status
CIA September 8, 2008, Letter Failing to Grant News Media Status Despite Apology
CIA September 8, 2006, Letter Promising to Grant News Media Status
Archive Motion for Reconsideration
CIA Opposition to Motion for Reconsideration
Archive Reply on Motion for Reconsideration
Archive Motion for Summary Judgment