CIA: Going for the Catch 22 Prize
Five months ago, the Transactional Records Access Clearinghouse at Syracuse University submitted a request under the Freedom of Information Act to the Central Intelligence Agency (CIA). TRAC, as we are known, was not seeking classified information. Rather, we asked for records about the FOIA requests the agency had received since October 1, 2012; information that by law the agency is required to maintain for its annual reports to the public and Congress.
On June 9, 2015 – after multiple attempts, including another TRAC request for more timely information and a brief conversation with an individual in the agency’s FOIA office who refused to give us his last name – the agency dropped its bomb.
In a brief letter fully worthy of the Catch 22 prize, the CIA said it was “declining to process” one of our appeals on the grounds that the CIA had not extended to TRAC the right to have an administrative appeal. Michael Lavergne, an Information and Privacy Coordinator closed his letter about this decision by declaring we “regret that we cannot be of further assistance to you.”
Anne Weismann, a nationally respected FOIA litigator, said the agency’s unilateral decision to end our appeal rights was “bizarre.” The response to TRAC’s request, she said, “is obstructionist and ignores both the letter and the spirit of the law.”
“The FOIA does not permit an agency to refuse to process a request simply because it might be difficult or time-consuming,” Weismann added. “Perhaps the CIA, used to having so many of its records exempt from the FOIA altogether, does not believe the Act applies to it at all. But the CIA, like all executive branch agencies is subject to the FOIA, despite its actions to the contrary. “
Susan B. Long, the co-founder and co-director of TRAC who has been a leading FOIA user since the early 1970s, was equally critical. “It certainly makes a mockery of the public’s right to know if an agency can unilaterally decide which FOIA requests it wants to answer and which to ignore. Indeed, the CIA’s response to our requests is even more surprising since the information being sought concerns the CIA’s own backlog and wait times for processing its FOIA requests. Under FOIA, she continued, ‘the CIA can’t simply ‘cancel’ FOIA requests it finds inconvenient or embarrassing to respond to.”
A Challenge From the Start
The saga began early in 2015, when TRAC sent 21 federal agencies including the CIA the same FOIA request, asking for case-by-case listings identifying all FOIA requests they had received from October 2012 to December 31, 2014. On April 24, 65 business days later, TRAC reported on this site that only seven of the 21 agencies had responded to our request by providing us complete and usable information.
In the case of the CIA, the agency first replied by declaring that searching its FOIA database would require an “unreasonable effort.” But in a March 11 telephone conversation with a CIA individual who would only identify himself by his first name, “Anthony” acknowledged that the agency had the information in its CADRE database. He stated he would provide TRAC additional information about what was preventing him from making a successful search “without an unreasonable effort” if we faxed him our specific questions about the agency’s system. We did that on March 12. But Anthony never responded to our questions.
In TRAC’s original FOIA request to the agency, covering the October 2012 to December 2014 period, we had asked for information on FOIA tracking numbers, the date of each request, the date the requests were received, the processing tracks the requests were assigned to and the date –where applicable – that they were closed.
Under the law, all agencies are required to keep and report this information and it is partly reflected in the CIA’s annual report, which last year said it had “cancelled” 111 FOIA requested for unspecified “administrative reasons.” The CIA report further said it had processed a total of 3,795 requests in the last fiscal year with only 470 or 12 percent of them by full release.
But for the vast majority of CIA requesters – 61 percent of the total– no information was provided. The agency claimed this was the case either because the material sought was entirely exempt from disclosure or for others reasons including the particular non-informative “cancellation” category that the CIA cited in TRAC’s case.
Partly because of the CIA runaround on our original FOIA requests, TRAC on June 24 submitted a new FOIA request to the agency that seeks information to allow us to better understand the computerized systems the agency uses “for managing and processing the workload” in its FOIA office. If we’re provided with this information, it should allow TRAC to better counter arguments that the CIA’s systems are not up to the task of providing the basic information we seek.
Because the agency has not only refused to process our request but has told us that its decision isn’t subject to administrative appeal, TRAC has been advised that a suit in federal district court may well be our only recourse. Because that option usually is time consuming and costly for both the plaintiff and the government, however, it presents a major hurdle. Indeed, statistics bear that out. The FOIA Project found that FOIA requesters in only 19 of the 3,325 requests CIA reports that it denied in some manner last year took the further step of challenging the agency’s decision in court.
David Burnham is the co-founder and co-director of the Transactional Records Access Clearinghouse (TRAC), a joint data research center of the Newhouse School of Public Communications and Whitman School of Management, both at Syracuse University. TRAC, which is both nonpartisan and nonprofit, administers the FOIA Project. You can read more about TRAC here. Burnham, among other things, is also an associate research professor at Newhouse, a former investigative reporter with The New York Times,and the author of two books on federal agencies –the IRS and the Justice Department — and a third on the privacy issues posed by the growing surveillance activities of both business and government.