D.C., 15 October 2004
October 15, 1984, President Reagan signed into law the Central
Intelligence Agency Information Act of 1984, Pub. L. 98-477, codified
at 50 U.S.C. Sec. 431, which created an unprecedented
exception for the CIA from the search and review requirements
of the Freedom of Information Act (FOIA). It applies to records
of current intelligence and counterintelligence collection, so-called
"operational files." It leaves the designation of such
files to the CIA.
The National Security
Archive today requested that Central
Intelligence Agency Director Porter Goss initiate
a rigorous process to meet its statutory obligation to review
its designation of its operational files and asked Congress to
conduct oversight of the impact of the operational file exceptions
now held by four intelligence agencies (Senate
The CIA's argument
for the exclusion of these records from the FOIA was that Directorate
of Operations and Directorate of Science and Technology records
in sensitive working files would be almost entirely withholdable
under existing FOIA exemptions. By categorically exempting operational
files from search and review, the CIA Information Act would free
the CIA of the burden of processing FOIA requests for such records
and of having to defend their nondisclosure in court.
The CIA Information
Act was passed after extensive public hearing and debate and based
on explicit representations by the agency that it would not result
in additional information being withheld from the public. Further,
the CIA promised that by concentrating its FOIA and declassification
resources on files other than the Directorate of Operations files,
more information would actually end up being released publicly
after passage of the Act.
The CIA's then-Director
of the Office of Legislative Liaison, Clair George, promised that
the reach of the Act would be limited. When asked whether a special
study on the Berlin Tunnel Operation - a historical study - would
remain subject to release under the FOIA, he confirmed that such
"special studies will not be in designated [operational]
files, this type of material will continue to be accessible."
John McMahon, CIA Deputy Director, assured the Senate Intelligence
Committee that "by removing these sensitive operational files
from the FOIA process, the public is deprived of no meaningful
As the Department
of Justice noted at the time the bill was enacted into law, it
came with a clear quid pro quo:
for such relief, however, Congress expects the CIA to be able
to greatly improve the pace at which it responds to FOIA requests
for other, less sensitive files in its possession. The CIA's backlog
of FOIA requests and administrative appeals has grown to enormous
lengths in recent years. It has agreed to apply the administrative
resources necessary to respond in a much more timely fashion to
requests for records that are not excluded from the FOIA under
the new legislation.
Update, Vol. V, No. 4, at p. 1-2. This
promise "to preserve undiminished the amount of meaningful
information releasable to the public under the FOIA"
was considered by Congress "to be of primary importance
in providing CIA relief from undue FOIA processing burdens."
Intelligence Agency Information Act, H. Rep. No. 98-726, Part
I, at 17 (1984) (emphasis
did not create much of a check on the CIA's discretion. The CIA
Information Act requires that every 10 years the CIA conduct a
review of the categories of files that had been in the exempted
categories and off limits to FOIA requests. In the review the
CIA is to take into consideration the historical value and public
interest in a particular category of files and the potential for
removing those files from the list of files exempt from FOIA search
and review. A review was conducted in 1994. It consisted of
notice in the Federal Register, a meeting
with interested parties, the
acceptance of written comments (which included comments
by the National Security Archive), and
to Congress that the decennial review had been conducted.
Notably, the CIA failed
to provide its report to Congress or a briefing on the matter
to its own Historical
With no oversight
of its actions, however, the CIA
has broadly asserted the exception from FOIA.
It has decided that
any histories of the Directorate of Science and Technology, its
components, or its activities are part of the Directorate's operational
files and thus exempt from search and review-even when those histories
cover activities that have been the subject of substantial declassification.
These include, for example, a history of the Office of ELINT (electronic
intelligence) from 1962-1966, and any histories of the Office
of Research and Development. Much about these offices (which no
longer exist) has already been declassified-the National Archives
& Records Administration has a number of articles from the
CIA's Studies in Intelligence that recount ELINT operations. But
that has not stopped the CIA from asserting that the histories
are relevant to current intelligence collection activities.
And despite the fact
that covert action activities are neither intelligence nor counterintelligence
activities under the CIA Information Act, the CIA has also declared
its histories of covert activities exempt from search and review.
Included in the exempt category is Covert Action Operations: Soviet
Russia Division, 1950-1968, which is one of many histories the
CIA allowed journalist Evan Thomas to examine while he was writing
The Very Best Men: Four Who Dared, his 1995 book on Richard
Bissell and other key CIA officials.
Proliferation of the Problem
For many years the
CIA was the only agency to have an "operational files"
exemption. In 1999, the National Geospatial-Intelligence Agency
(formerly the National Imaging and Mapping Agency) was awarded
an operational files exemption. Then, in 2000, the Defense Intelligence
Agency (DIA) requested an operational files exemption. By exempting
from the FOIA the documents of the human intelligence service
(HUMINT), that legislation would have shielded the activities
of foreign death squads, torturers and kidnappers from public
scrutiny and undermine the efforts of official truth commissions.
National Security Archive opposed the DIA exemption
and it was not put into law.
In 2003 the intelligence
authorization act awarded an operational files exemption to the
National Reconnaissance Office (NRO), responsible for the development
and operation of America's reconnaissance satellites. The exemption
immediately became a
reason to deny FOIA requests. For
example, despite having released a number of internal directives
in response to a 2002 FOIA request, the NRO soon declared that
all such directives are part of its operational files-including
directives on "Executive Order 12333-Intelligence Activities
Affecting United States Persons" and the "National Reconnaissance
Pioneer Recognition Program." It took an appeal ultimately
to get these records released. The NRO also refused to search
for 1967 and 1971 reports on the national reconnaissance program
even though large portions of these reports have already been
declassified, and much of the remainder of the reports focuses
on declassified space reconnaissance systems such as Corona and
In 2004, as part
of the National Defense Authorization Act for Fiscal Year 2004,
Security Agency was granted an operational files exemption.
It specifies that "operational
files" are those files of the NSA's Signals Intelligence
Directorate or its Research Associate Directorate "that document
the means by which foreign intelligence or counterintelligence
is collected through technical systems."
New Reasons to Question the Justification
for the Exception
Unlike the CIA Information
Act, however, there were no public hearings on the exemptions
for the NRO, NGIA/NIMA and NSA. Because no agency has ever been
asked to make much of a showing to obtain the FOIA exemption,
the key rationale underpinning the exception has never been demonstrated
to be applicable to the NRO, NGIA/NIMA or NSA. In the case of
the NSA, the Agency did submit a page-and-a-half
justification for the exemption.
The basis for that justification - that the NSA was expending
unreasonable amounts of time on unproductive searches of operational
files - appears to have been exaggerated. The NSA explained that:
Exemption, NSA will have to continue to divert resources from
its SIGINT activities in order to search for and review materials
that invariably will be properly withheld under the FOIA …
Some recent examples will help to illustrate this need. Since
September 2001, nine of the FOIA requests tasked by the NSA FOIA
office to the operations organization resulted in search estimates
of nearly 12,500 person-hours at a cost of over $433,000.
NSA Proposal for Exemption
from the Freedom of Information Act (13 May 2003).
When the NSA eventually
produced the nine FOIA requests described above (in response to
the Archive's FOIA request), there was reason to question whether
the requests could result in the extensive searches claimed by
the agency or whether an operational files exemption would have
much impact on the "estimated" burden of the FOIA.
of the nine requests is
for "photographs, brochures, or video that relates to the
Rosman Satellite Tracking Station, which the NSA used in the 1980s"
for use in a documentary film. That Satellite Tracking Station
is now a non-profit astronomical institute. On its face, the request
does not appear to have anything to do with "the means by
which foreign intelligence or counterintelligence is collected
through technical systems." Moreover, communication with
the requester likely would enable the Agency to narrow the request
significantly to focus only on the type of records needed by the
requester without requiring an exhaustive search of every record
ever generated concerning the Rosman Satellite Tracking Station.
seeks "Records on Russian Electronic Surveillance ships."
It notes, however, "I WILL ONLY ACCEPT RECORDS UP TO $100.00."
Regardless of whether there is an operational files exemption,
the 12,500 person-hours cited in the May 13 statement cannot possibly
reflect any actual FOIA search activity that has taken or will
take place with regard to this request. Agency regulations prohibit
partial FOIA searches and a fee limit of $100.00 necessarily would
permit it only to conduct minimal research on this broad request.
Thus, no search would ever take place. Moreover, no agency would
conduct this search without additional specification of the information
sought, such as date or geographic delimiters. A
request from a National Security Archive analyst
requests "National Security Agency Reports concerning activities
of the Government of Rwanda … from April 6, 1994 through
July 22, 1994." If, as the NSA has claimed, its disseminated
intelligence would not be affected by the proposed operational
file exemption, it is extremely unclear how the burden posed by
this request would have anything to do with justifying the proposed
records show that there is information in historical "operational
files" that can and should be available to the public under
the FOIA. For example, the CIA has released operational records
Chilean Task Force Activities in 1970,
a Directorate of Operations Cable concerning White
Rhodesian Morale in 1979,
an assessment of
Roberto Viaux's coup plot in Chile, and
name files released under the Nazi War Crimes Disclosure Act for
individuals including Adolf
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Letter to CIA Director Porter Goss
Letter to House Permanent Select Committee on Intelligence
Letter to Senate Select Committee on Intelligence
of the CIA Information Act of 1984
History of the CIA Information Act of 1984
1994 CIA Decennial
Review of Operational File Designations
Examples of Operational
Records that Have Been Released