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Archive Calls on CIA and Congress to Address Loophole Shielding CIA Records From the Freedom of Information Act

National Security Archive Electronic Briefing Book No. 138

Posted October 15, 2004

For more information contact:
Meredith Fuchs (202) 994-7059
Thomas Blanton (202) 994-7068

Washington, D.C., 15 October 2004 - On 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 Letter; House Letter).

The CIA's Promise

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 information whatsoever."

As the Department of Justice noted at the time the bill was enacted into law, it came with a clear quid pro quo:

In exchange 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.

FOIA 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." Central Intelligence Agency Information Act, H. Rep. No. 98-726, Part I, at 17 (1984) (emphasis added).

The Reality

Unfortunately, Congress 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 a notice in the Federal Register, a meeting with interested parties, the acceptance of written comments (which included comments by the National Security Archive), and a notice 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 Review Panel.

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. The 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 KH-7.

In 2004, as part of the National Defense Authorization Act for Fiscal Year 2004, the National 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:

Without the 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.

For example, one 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.

Another request 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 exemption.

Finally, released 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 concerning CIA Chilean Task Force Activities in 1970, a Directorate of Operations Cable concerning White Rhodesian Morale in 1979, an assessment of General Roberto Viaux's coup plot in Chile, and name files released under the Nazi War Crimes Disclosure Act for individuals including Adolf Hitler and Reinhard Gehlen.


Documents

Note: The following documents are in PDF format.
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Archive Letter to CIA Director Porter Goss

Archive Letter to House Permanent Select Committee on Intelligence

Archive Letter to Senate Select Committee on Intelligence

Text of the CIA Information Act of 1984

Legislative History of the CIA Information Act of 1984

1994 CIA Decennial Review of Operational File Designations

Examples of Operational Records that Have Been Released

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