Appeals Court Shoots Down ACLU, Says Full CIA Torture Report Is Beyond The Reach Of FOIA Requesters
from the 7,000-pages-of-compiled,-edited,-heavily-reviewed-'work-product' dept
Unless the Supreme Court chooses to get involved, it looks like we’ll never get to see the full “Torture Report.” We’ll just have to make do with the Executive Summary, which was released at the end of 2014. The summary is just 500 pages out of ~7,000 total. The rest of these pages remain in the hands of the Senate and the CIA, and neither is willing to part with them.
FOIA enthusiast Jason Leopold’s request for the full document has already been shut down. The ACLU’s request was similarly denied by the DC District Court. The Appeals Court has reached its decision, and it agrees with the lower court.
The denial hinges on the court’s determination that the full report is nothing more than a collection of Congressional communications and documents, rather than being in the possession of the CIA where they could (theoretically) be accessed via FOIA requests. The court cites a 2009 letter from the Senate Committee to the CIA that spells this out explicitly.
Any . . . notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee . . . . These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law.
In other words, the Senate Committee — with a single letter — managed to convert not only the finished Torture Report, but all of the documents it used to compile the report, into Congressional “work product,” making it completely inaccessible by the general public.
According to Appellants, when an agency has been given possession of a document created by Congress, the document is presumptively an agency record unless Congress has clearly expressed its intent to control the document. In Appellants’ view, Appellees cannot establish a clear assertion of congressional control with respect to the Full Report because it was disseminated to Appellees without any restrictions. We disagree. The June 2009 Letter manifests a clear intent by the Senate Committee to maintain continuous control over its work product, which includes the Full Report. Therefore, the Full Report always has been a congressional document subject to the control of the Senate Committee.
The court finds that the only entity with the power to release the full Torture Report is the Senate Committee controlling the “work product.” Considering there were attempts to bury the much smaller Executive Summary, it’s safe to say the current committee, along with any successive committees, aren’t going to be interested in releasing the full report, not as long as there is a compelling interest (read: the CIA, administration, etc.) in keeping it a secret.
Based on Feinstein’s 2009 letter, and a communication accompanying its release to the Executive Branch in 2012 solely for the purpose of eliciting comments, the court declares the Torture Report to be completely exempt from the FOIA.
When Senator Feinstein transmitted the draft of the Full Report to the Executive Branch on December 14, 2012, her transmittal letter made it clear that the Committee would determine if and when to publicly disseminate the Full Report. Nothing changed as the final edits and corrections were made to the Full Report. The limited transmittal of the Full Report to Appellees in 2014 certainly did not vitiate the command of the June 2009 Letter or otherwise authorize public dissemination.
On the record before us, the Senate Committee’s intent to retain control of the Full Report is clear. The Full Report therefore remains a congressional document that is not subject to disclosure under FOIA.
This decision, while logical in its determination of the Committee’s intent, exposes a glaring hole in the FOIA — one which allows agencies to drive truckloads of documents through into the darkness beyond. “Work product” can be almost anything, even completed reports. All it takes to move something out of the public’s reach is a government employee declaring that the documents they don’t want to release are somehow still in a nascent, “deliberative” state. Feinstein’s 2009 letter makes it clear she wanted the full report to stay out of the public’s hands, so she declared the documents unfinished and “removed” them from the CIA’s control. The courts don’t always buy the government’s “work product” arguments, but there’s the rub: it takes a lawsuit to reach this point, something that’s not always an option for FOIA requesters.