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.

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Comments on “Appeals Court Shoots Down ACLU, Says Full CIA Torture Report Is Beyond The Reach Of FOIA Requesters”

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TruthHurts (profile) says:

Here's the plan to fix this oversight on our part...

For the next 10 to 20 elections, let’s use the shampoo method.

Apply a thick layer of voting out every incumbent, scrub vigorously with our fingers until the scales of corruption flake away, rinse to clean away the grime of greed, repeat until Capitol Hill shows a healthy shine and sheen of fresh and healthy people laboring to correct decades of abuse, tyranny and oppression.

The American people will cry out in joy seeing these new representatives working for us, not themselves, not corporations, not criminal alphabet agencies.

Their work may take a while as there’s quite an unhealthily thick layer of corrupt, corpulent, gangrenous mass infecting Capitol Hill.
These new people, guided by the writings of our forefathers have their work cut out for them as they dig out the rotting, decaying corpses of the Constitution and Bill of rights that were left to die by the corrupt, the greedy, the power-mongering politicians that have infected our government for much too long.

Hopefully there’s enough genetic material left that isn’t corrupted that we can attempt to clone the originals and provide them with a healthy environment in which to grow strong and true, so that evil and corruption can never take hold again.

Let these elected sociopaths know who runs this country.

They’re less than 500 people, and we, the millions of people let them walk all over us?

How dare we!

Uriel-238 (profile) says:

Re: A PERSON has agency. PEOPLE are easily manipulated.

Most of the United States still lives under the illusion that their rights are there if they should ever need them, and only bad people fall on the wrong side of the justice system.

They’re also more concerned about the funding for their kids’ schools than torture of some guys who are obviously crooks. Our nation is impoverished yet we still vote like we’re middle class with stock options.

John85851 (profile) says:

Re: Here's the plan to fix this oversight on our part...

And what, exactly is your plan to do this?

The main problem is that the politicians who get elected into office have the money to run for office in the first place.

Then we have such polarized politics that the public will never agree on which candidate should be elected. Just look at who we have running for president:
A socialist who will take money from the rich and give to the poor.
A woman(!) who might be indicted by the FBI. A woman!
And a reality-show real estate mogul with no political experience.

Given these choices, who would you vote for? Sorry, but those are the only choices.

Wendy Cockcroft (user link) says:

Re: Re: Here's the plan to fix this oversight on our part...

No, they’re not. Due to Citizens United, where money = speech, they’re the only choices you know about. Few Americans are bothered to find out what other options there are and the ones that are aware of them are too scared to actually vote for them in case the party they hate the most gets in, so they vote for the one they hate a little less.

This is what the problem is. It’s a numbers game. To get a third party candidate in you have to get enough support behind that person. You could do it but you’d have to overcome the polarised politics problem and the fear that Tweedledumber might get in via votes “stolen” from Tweedledumb.

One great thing about Trump is that he’s got people looking at third parties. The Libertarians got a million votes in the last election. While we’re not exactly looking at President Gary Johnson it’s becoming a lot more likely that one day they’ll have a realistic shot at the job. That’s not a bad thing in principle, whether you agree with Libertarian positions or not.

Anonymous Coward says:

Re: Re:

Funny that ‘what Congress does‘ is one of the things Congress doesn’t necessarily have to tell us about.

I’m also confused by ‘work product’. Seems like the thing produced by working is the end result of that work, a ‘product’, if you will. How is a finished product also not a product? Do they just stamp the word ‘Beta’ on everything?

Anonymous Coward says:

So, a few days ago we learned that secret laws can remain secret because secret laws aren’t ‘working’ laws. Secret laws are magic laws that are, in fact, mere guidelines that just happen to carry the weight of ‘real’ laws. Well. OK.

Now we have the Torture Report, which is, um, a report concerning torture. This, however, is not a ‘report’ kind of report. Just because everyone from the President on down refers to something as a report, and it has the word ‘Report’ right in its goddamned title, does not make it a report. It’s really just some papers, post-its, and the occasional cocktail napkin with doodles on it. Everyday informal interoffice nonsense. Well. OK again.

Again, I find myself wondering why shit is not yet being burned to the ground. Metaphorically and hyperbolically, not ‘subpoena TechDirt’-ally.

Anonymous Coward says:

Re: Re:

I firmly believe it will take a wide scale massacre of hundreds or thousands of people at the hands of government employees to force people to revolt. Or maybe we will get lucky and trump will be elected and try to force it through to hard and too fast for people to complacently accept, like they currently are.

To be clear I want trump to be elected because he is so insane, that I am hoping it will force Americans to take charge of their corrupt government instead of just boiling away in the pot slowly.

Anonymous Coward says:

Big Deal. All the actual torture videos were destroyed, despite being court evidence in numerous active lawsuits. If the government can break the law so blatantly and get away with it so completely, does anyone really expect getting even a token measure of justice?

Like the 9/11 Report, the Torture Report was a whitewash anyway. The missing pages won’t even begin to address the vast scope of criminal and human-rights abuses that went on.

But this is nothing new. In WWII, the Japanese P.O.W.’s who surrendered were systematically tortured and killed by American soldiers, and a new excuse was invented to cover up the odd absence of prisoners in the Pacific War, “no Jap ever surendered.”

M. Alan Thomas II (profile) says:

I think you’ve got it slightly wrong here, Tim. (Or at least explained it such that many of the commentators have also gotten it wrong.)

(1) It’s not an exemption for “work products”; it’s an exemption for Congress. Congress did not make itself subject to FOIA. Nothing needed transforming into a “work product”; the only question was who had control of it.

(2) “Work product” does not mean “unfinished” or “deliberative” (which does not mean “unfinished” either); those are different things, each of which might or might not be true of the same document. The phrase “work product” is only used because it’s shorter than “that thing that they made.”

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