CIA Cannot Find Its Own Regulations On How To Declassify Documents

from the or-maybe-it's-classified dept

There have been questions about what documents the CIA chooses to declassify, and so Kel McClanahan of National Security Counselors filed a Freedom of Information Act request to find out what procedures the CIA must follow in response to requests to declassify information. McClanahan appeared to know exactly what he was looking for, but… was told that the CIA simply could not find any such documents.

I especially like this part: “our searches were thorough and diligent, and it is highly unlikely that repeating those searches would change the result.” This certainly reminds me of the news that came out last year about how the administration wanted permission to lie in response to Freedom of Information Act requests, such that if it doesn’t want to release a document, it can just say that no such documents exist, rather than admit it does exist but can’t be revealed. No, that’s not wide open to abuse at all…

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Comments on “CIA Cannot Find Its Own Regulations On How To Declassify Documents”

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Oblate (profile) says:

Should have done a simple web search instead...

Not sure if this is what he was looking for:
That’s right, the CIA has a link on their own website to download an electric copy of the document they said they don’t have an electronic copy of. In their FOIA section. Maybe it’s on a domestic server, and the FBI should have looked for it?

Of course you can always download CFR from the GPO. It seem ridiculous to submit an FOI for a whole section of the CFR when it’s freely available, but it’s even worse for the CIA to give this response. Is there a ‘secret’ subsection of 1908 that was specifically requested? The article doesn’t indicate anything other than the entire section being requested.

Jeremy Lyman (profile) says:

Replace them

So, if they don’t have any regulations, shouldn’t they request that Congress provide them with some new ones? This sounds like a pretty convenient “out” for any Federal agency that wants to do something they’re not allowed to.

I’m imagining a kid who doesn’t like his underwear and conveniently “loses” it. His parents go buy him another pair, right?

Anonymous Coward says:

Should have done a simple web search instead...

The FOIA request asks for a copy of the CIA’s copy not the version everyone else can see on their website. The CIA probably secretly reinterpreted the law and never bothered to write down their reinterpretation so they legitimately can’t find it. Otherwise, they would of just sent that link.

Anonymous Coward says:

It is impossible to form any conclusions on this situation without a copy in hand of the original FOIA request(s).

The form of the letter strongly suggests to me that the request was directed to matters other than the noted section of the Code of Federal Regulations, which is, of course, already published and freely available to the public.

DogBreath says:


No, the sad truth is the CIA stored their only electronic copy on Megaupload, and the DOJ (and MPAA /RIAA) won’t let them have access to it because it may contain copyrighted material (maybe the words in the document sound like a Justin Bieber song, or it contains a recording of birds chirping, who knows…).

The CIA was going to try and get a judge to grant them access to the document, but as a government agency themselves, they already know the fruitlessness of that action.

Chris Maresca (profile) says:

It's not lying.

FOIA request can easily be turned down if you do not have the SPECIFIC name of the document.

You might describe it as a technicality or semantics, but it’s very, very useful. The general reaction to the FOIA law in some parts of the gov’t has been to name documents very obscure and obfuscating names. It’s probably the case here and the actual name of the document can be further hidden through incomplete acronyms…

Anonymous Coward says:

(I work FOIA professionally. Unaffiliated with CIA.)

Well, let’s see here…

The quotes in the response imply that the requester specifically worded it as “an electronic copy of the CIA’s copy of its new regulation 32 C.F.R. 1908.”

That being said, I think this is where you get into legalistic hair-splitting.

5 USC 552 (a)(1) Requires disclosure of certain things through the Federal Register.

5 USC 552 (a)(3) Provides that records not made available under 5 USC 552 (a)(1) or (2) can be requested.

5 USC 552 (a)(3) is the formal citation of making a request “under the FOIA”

(a)(3) specifically excludes (a)(1) and (a)(2). CFR publications are BY DEFINITION under (a)(1) and thus not responsive to requests under (a)(3).

Lawyer-ey, and weasely, but perfectly in line according to the law.

As a side note, I would appreciate it if you acknowledge that the 5 USC 552 (c) exclusions aren’t “the Governemnt lying.” The three exclusions are extremely narrowly defined, they are explicitly stated in the law to be “not subject” to the FOIA. There is an explicit point in all FOIA litigation where the court consults with the Government with regard to the use of exclusions. EXTREME scrutiny is applied to any consideration os using an exclusion. It is FAR from “I don’t wanna.”

Yes, I understand distrust of the Government. There are many times when they shouldn’t be trusted. Frankly, I do think this was a bit weaselly, though I can certainly sympathize with the annoyed processor who got this case. I think they should have gone the extra mile and explained WHY no responsive records exist, but I must concede (and point out) that they met the legal minimum.

Anonymous Coward says:


Reading statutes is not a strength here. That takes time, time that can be better spent making unwarranted assumptions in advance of proferring unwarranted accusations.

I would, however, be reluctant to suggest the letter is a bit misleading in the absence of a copy of the original request. I say this only because experience informs me that quotes of the type in the first paragraph of the letter are seldom, if ever, truly a complete statement of everything contained in the associated request.

Kel McClanahan (profile) says:

Answers to most of your questions

Hello, I’m the requester. I can address most of the questions raised in the comments:

1) The full text of the request was “This is a FOIA request for an electronic copy of the CIA?s copy of its new regulation 32 C.F.R. 1908. A paper record will not satisfy this request.” Followed by our office address. No joke.

2) The copy you linked to on the CIA’s website is an old version. The CIA amended 32 C.F.R. 1908 in September but have not updated their website. (In fact, I’m currently suing them over one of their amendments – see

3) Despite the clear statutory requirement that agencies must release records in electronic format if the requester so requests, the CIA has adopted a practice of refusing to do so across the board (with very few exceptions). Agencies are allowed to refuse to release specific records in electronic format if that record is deemed “not readily reproducible in electronic format,” but the CIA argues that none of its records are readily reproducible in electronic format (because it implemented a FOIA processing system that resides solely on its classified network, requiring FOIA analysts to upload unclassified documents to the classified network to process them, and then saying that because they’re on the classified network, they can only be printed). For more information go to our litigation webpage at and read the briefs about a “status conference” for Civil Action No. 11-443 (BAH).

4) I admit that it seems somewhat silly to make a FOIA request for something I could find in Google. I made this request to prove exactly how asinine the CIA’s policy described in (3) is. I did not expect to be told they could find no responsive records. I haven’t the slightest idea how they reached that result.

5) If they have used the fact that I have asked for an electronic copy as grounds to say that no records exist because they can’t give me an electronic copy (for reasons described above), then this is a new escalation of this policy that should not be allowed to stand. It is patently unreasonable to give a “no records” response simply because a requester asked for electronic records, unless you say that’s the reason.

6) Which brings us to the heart of another problem with CIA responses. They regularly apply very narrow interpretations of the scope of requests, but never tell the requester that the reason no records were found is because of this narrow interpretation. Only if you sue will you learn how the Agency read your request.

7) This applies to the issue of “not being able to request Federal Register thing” as well. If that was the reason they reached this decision, they need to say that, not just assure the requester that the search was thorough. This especially applies in this case, where they have consistently processed copies of Federal Register documents in response to FOIA requests in the past. In fact, if you file a request for all records about some CIA policy, often all you’ll get is a copy of the regulation published in the Federal Register.

I hope this explains some of the apparent inconsistencies.


Kel McClanahan (profile) says:

Answers to most of your questions

Re: annoying the FOIA processor, I do agree that she was probably annoyed when she got this. However, I am confident that her annoyance pales in comparison to what I feel when I receive a 60-lb box of paper, stapled every 2-5 pages, that I have to unstaple and scan to post on the web (or even to be able to do searches through). And those pages are printouts of completely unclassified documents. True story. Think about how many pages are in a 60-lb box. Then think about how sad it is that this has happened significantly more than once. Just saying…

Anonymous Coward says:

Answers to most of your questions

1) I’ve seen your requests before. I’d believe that wording in a heartbeat.

2) This is another legal corner case. IANAL, but as I read it, (a)(1) only strictly requires the information be posted to the Federal Register. CIA policies or instructions may require more, but I don’t think the FOIA strictly mandates they post it on their site.

3) I really can’t comment on the CIA’s actual processes. On a personal level, I can say that sounds sketchy, and inaccurate, but I really have no knowledge of their inner workings, so I’ll keep this “no comment.”

4) As I argued, the most likely approach appears to be the fact that (a)(1) and (a)(2) are not subject to (a)(3)

5) Agreed.

6) I am aware that the required reading is to “the four corners of the document” and the processors are not required to undergo any degree of speculation, but it seems poor form to not restate an interpretation, especially for a “no records” response. Poor form, but not illegal. I’m guessing there’s no clarification of interpretations upon administrative appeal, then?

7) Another “legal” vs “best preactices”. Technically speaking, providing any documents subject to (a)(1), (a)(2), or publicly available is considered going beyond the strict requirements of the FOIA. I’d expect the strongest arguemnt they’d provide here is “administrative burden”, as mentioned in your third point.

8) (Your reply to yourself) Don’t jump too quickly to that sort of conclusion. Both sides of the fence are VERY familiar with 60 lb. boxes stapeled every 2-5 pages. On this side, they tend to be musty, archival tissue paper with rusty staples. Many offices are going toward digital, even if CIA seems to eb retreating, but there’s an inertia to the processing habits, so many things remain paper-based. Stapling every 2-5 pages to maintian consistency with the originals is a chore when it comes to scanning, but it could be a nightmare if all the documents were left loose. The ideal would perhaps be to serialize the documents, but, sadly, many worker drones care less about the ideal than just getting it done.

In the end, it’s just like any other job – you have people who care about it, make sure to be knowledgable, and go the extra mile, and you have people who clock in, serve their time, and clock out. I could also rant about the particular frutstrations of being a FOIA processor, but no one really cares to hear someone complaining about their job.

Kel McClanahan (profile) says:

Answers to most of your questions

1) Lol, well played.

2) I think you think I meant something I didn’t, so I apologize for any ambiguity. I’m not saying they are required to post the regs on their website; I was merely pointing out that the version on their website isn’t the most recent version, in response to Oblate’s 6:44 AM comment. I’m not suing them for failing to post the amendment, I’m actually suing them because the amendment itself is improper (for a handful of reasons I won’t go into here).

6) You assume correctly. If you appeal a decision, the response is “We affirm our initial determination, Love, CIA.” Nobody explains anything to the requester until you sue.

7) Agreed, and I wasn’t saying that they were required to process the document. I was only saying that since they always have processed such documents, it’s really poor form to deviate from that practice and not tell the requester that they’re deviating. Not a legal argument, just more ranting about their stubborn refusal to say anything, no matter how minor, that they don’t think they are absolutely required to say by law. True, there are plenty of times that they are required by law to say something and they don’t, and I have no compunctions about suing them over those, but I agree that this isn’t one of them.

8) I think you picked the wrong conclusion I jumped to. I believe you when you say that FOIA processors get just as annoyed with 60-lb boxes of paper as I do. I’m saying that she really doesn’t have a right to get as annoyed at having to process a FOIA request for one 3-page document as I get at receiving these boxes when the Agency is supposed to be sending me CDs.

Re: ranting about being a FOIA processor, believe me, I’ve heard it all, and I do sincerely feel for you guys. The conscientious ones, at least. You are caught in the middle between agency people who want to keep everything secret and treat you like the enemy and the public whose real problem is with the aforementioned agency people, but you’re the ones they get to deal with, so you’re the ones who get the brunt of their frustration.

Kel McClanahan (profile) says:


There’s nothing special about it. It was a simple boilerplate acknowledgement.

Dear Mr. McClanahan:

On 9 February 2012, the office of the Information and Privacy Coordinator received your 9 February 2012 Freedom of Information Act (FOIA) request, submitted on behalf of the National Security Counselors, for “an electronic copy of the CIA’s copy of its new regulation 32 C.F.R. 1908.” We have assigned your request the reference number above. Please use this number when corresponding so that we can identify it easily.

The CIA Information Act, 50 U.S.C. ? 431, as amended, exempts CIA operational files from the search, review, publication, and disclosure requirements of the FOIA. To the extent your request seeks information that is subject to the FOIA, we accept your request, and we will process it in accordance with the FOIA, 5 U.S.C. ? 552, as amended. We will search for records up to and including the date the Agency starts its search. In accordance with our regulation, as a matter of administrative discretion, the Agency has waived the fees for this request.

Meanwhile, we will begin processing your request.

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