The FOIA blog

Pentagon Sued Over Classified Documents; I'm Quoted

The Department of Defense has been sued by Hogan and Hartson over documents relating to the U.S. military's cooperation agreement with Kuwait.  This article analyzing the complaint by the N.Y. Sun's Josh Gerstein quotes me about the uphill battle plaintiff's will have in getting the court to overturn the government's classification decision.

Update:  As soon as the lawsuit was filed, it seems to be over.  According to the NY Sun, the lawsuit was dropped due to Kuwait's displeasure over the prospect of the agreement being made public.  The article also gives background as to what they agreement was sought in the first place.

CIA Loses Case at DC Circuit

The CIA has had a lower court ruling reversed at the United States Circuit Court for the District of Columbia.  The CIA had previously won summary judgment on a case where requester Jefferson Morley sought records on George Joannides, a deceased CIA agent.

The Circuit Court however found that the CIA's search wasn't adequate as it hadn't search usually FOIA exempt operational files because in this case there was an exception that made these files non-exempt from the FOIA in their entirety.  The Court remanded the case back to the lower court for the CIA to search its operational files.  Further, the CIA was ordered to search JFK act files that it had transferred to NARA, but had admitted to keeping copies of as well as to sent to NARA but that aren't to be released to the public until 2017.  Finally, the Court found the CIA's description of its search inadequate and remanded the case for a further explanation of the search.

While the Circuit Court found the CIA Vaughn Index adequate, it found the lower court did not make a segregability finding and remanded the case for it to do so.  The Circuit Court also found that the CIA had properly justified its use of Exemptions 1, 3 and 7(E). 

However, the Court found a number of deficiencies with other exemptions and remanded those portion of the case for further agency explanation.  The Court found that as to Exemption 2, the CIA did not meet its burden in establishing its use of low-2 to withhold certain material and remanded for further explanation.  Likewise, the Court found that the CIA's defense of it's glomar response was also inadequate and remanded that portion of the case for further explanation.  Next, the Court found that the CIA's justification of Exemption 5 was inadequate, thus on remand the CIA will have to explain that exemption's use further.  Finally, the Court also found that the CIA's justification of exemption 6 was inadequate as it never established that any privacy interest in the withheld records existed.

To paraphrase Ricky Ricardo, it looks like the CIA has "lot's of 'xplaining to do". 

Bushies to Keep Airline Passenger Safety Negotiations Secret

I don't rant much on this blog, but I really find this story troubling. 

The Washington Post today reported that the Bush Administration is planning to classify much of the 2300 pages of documents responsive to the Electronic Frontier Foundation's request to the Department of Homeland Security for material concerning negotiations between the US and the EU on sharing airline passenger information.

The request was made in the fall of 2006 and after a lawsuit was filed in the Spring of this year, Judge Ellen Segal Huvelle told DHS to finish processing by November 1, 2007.  However, the government has now said they need more time because they need to classify a large number of the documents.

This response by the government raises a number of interesting questions to FOIA watchers.  First, why in the world weren't these documents, if they are truly classifiable, classified when they were created (as they should have been). 

The answer to this question is that they probably aren't really classified, but under a very broad and liberal Executive Order and case law that gives the government a great deal of leeway, government attorneys huddling in conferences (and they do huddle, I've been to some of these conferences in the past--no one really disagrees with what the head Bushies want to do) came up with this plan when they realized other exemptions won't work to protect the information.

The most likely exemption would be FOIA exemption 5.  I'm sure the government would love to say this information is protected by the deliberative process privilege.  However, any documents traded in a negotiation with the EU or other sovereign nation would likely fail the inter/intra government part of exemption 5.  Thus, it's much easier to say they are classified and release would harm our relationships with other nations.  So, the fight will be over exemption 1.

I'm hoping that not only does the EFF fight the classification on substantive grounds, but also the very important procedural grounds of the Executive Order allowing for classification.  What I mean is that they need to make sure the government verifies that the individual's classifying the information actually have the authority to make those decisions.

NSA Withholding of Secret Wiretap Information Upheld

Judge Ellen Segal Huvelle of the United States District Court for the District of Columbia has affirmed the National Security Agency's ("NSA") denial of certain information concerning its warrentless wiretap program requested by People for the American Way.

NSA withheld the material sought by People for the America Way pursuant to FOIA Exemptions 1, 3 and 5.  Judge Huvelle found that the NSA's declarations were sufficient to allow the NSA to use Exemptions 1 and 3 to withhod the material.  Because the material was withheld by those two exemptions, Judge Huvelle did not make a determination as to the use of Exemption 5 on the withheld material.