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FOIA Update: Special FOIA Relief for CIA

FOIA Update
Vol. V, No. 4

Special FOIA Relief for CIA

After some tense negotiation at the end of a hectic legislative session, the CIA received special FOIA relief from Congress in a bill signed into law by the President on October 15.

The new statute, entitled the "Central Intelligence Agency Information Act," Pub. L. 98-477, is designed to relieve the CIA of the responsibility of responding to FOIA requests for its "operational files." Under the new law, such files are automatically excluded from the FOIA upon their designation as the working files of certain operational offices of the CIA.

The principle underlying this special FOIA relief statute is that the records in such sensitive files would be almost entirely withholdable anyway, upon application of the FOIA's national security exemption, Exemption 1, together with the CIA's other statutory nondisclosure provisions under Exemption 3. The new law frees the CIA of the burden of processing FOIA requests for such records and of having to defend their nondisclosure in court.

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.

Not excluded from the FOIA by the new statute are any records not properly designated as part of the CIA's "operational files," including any files which serve as "the sole repository of disseminated intelligence," as well as the records of any investigation of suspected wrongdoing by agency personnel. Also unaffected are requests made under the Privacy Act of 1974 for records retrievable under an individual requester's name or personal identifier.

The new law accomplishes its purpose indirectly, through an amendment to the National Security Act of 1947, rather than by directly amending the FOIA. It expressly permits judicial review of its implementation in any suit filed by a FOIA requester, a provision that was extremely controversial throughout the legislative process.

In order to monitor the impact of this unprecedented legislative measure, Congress has required in the law that the CIA file semi-annual reports on its overall implementation of the FOIA during the next two years. Presumably, Congress would consider the enactment of corrective legislation if at the end of that period it concludes that the special statute had not yielded results consistent with its underlying rationale. By the same token, however, the successful implementation of this approach at the CIA over the next two years could logically lead to the serious consideration of comparable FOIA relief for other like agencies, such as the National Security Agency.

The enactment of this landmark special FOIA relief legislation culminates the efforts of the Senate Intelligence Committee, chaired by Sen. Barry Goldwater (R. Ariz,), and the House Permanent Select Committee on Intelligence, chaired by Cong. Edward Boland (D. Mass.), both of which struggled to craft a viable bill.

Above all else, however, this new law owes its existence to the special mutual efforts of the CIA and the American Civil Liberties Union, principally through CIA Associate General Counsel Ernest Mayerfeld and ACLU FOIA expert Mark Lynch, whose unique cooperation on the measure was essential to its enactment. Indeed, the proposal caused a great deal of controversy within the ACLU organization itself, a development which placed its passage somewhat in doubt near the end of the legislative session.

Also complicating the picture during the closing weeks of the 98th Congress was the determination of Cong. Glenn English (D. Okla.) to use the CIA proposal as a vehicle for addressing the controversial "Privacy Act/Exemption 3" issue. See FOIA Update, Summer 1984, at 4. Cong. English, whose Subcommittee on Government Information, Justice and Agriculture held joint jurisdiction over the CIA bill in the House, ultimately succeeded in placing a "Privacy Act/Exemption 3" provision into the law. (See p. 4 of this issue of FOIA Update.)

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Updated August 13, 2014