Former CIA Employee Sues Agency Over Its Refusal To Provide Documents In Electronic Form

from the exemption-(f)-u dept

The CIA is still causing problems for Jeffrey Scudder. Scudder used to work for the CIA. He was forced out of the agency after making a FOIA request for “historical documents of long-dormant conflicts and operations” while still employed there. Perhaps the agency thought only citizens outside of the agency should be making FOIA requests. Or maybe it thought Scudder was engaged in a particularly labyrinthine plot to exfiltrate declassified documents out of the agency. Whatever its thought process, it resulted in an FBI raid of Scudder’s house, the seizure of his electronics, and the end of his career.

Unfortunately for the CIA, this has given Scudder more time to file FOIA requests and sue the agency when it responds in increasingly ridiculous ways. Scudder has already tangled with the CIA over its refusal to join the 20th century (never mind the current one) when turning over responsive documents. His last major request to the agency asked for “softcopy” — i.e., not paper — copies of 419 articles from the CIA’s “Studies in Intelligence.”

The CIA told him it had no way of providing him documents in the format he asked for. Instead, it claimed it only had one way to comply with the request: the stupidest, most circuitous way.

The defendant [CIA] avers that if it were ordered to honor the plaintiff’s [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media…”

Scudder called this an “administrative gimmick” — something meant to discourage requesters and generate extra FOIA fees. The judge presiding over the case was less kind. She called it “Rube Goldbergian” while pointing out that FOIA law does allow requests to be turned down if they’re too burdensome, but that’s not an invitation to agencies to turn normal requests into overly burdensome ones by adding several layers of administrative busywork.

It’s this case that’s cited in Scudder’s latest lawsuit against the CIA — again hoping to force the agency to deliver documents digitally, rather than via a method lying somewhere between the hellish bureaucratic redundancy of Terry Gilliam’s “Brazil” and a shoddy steampunk plot point. (To be fair, it could be institutional. The Defense Department itself once turned down a request from MuckRock because it couldn’t find any money in its budget to repair/replace the single fax machine it used to receive FOIA requests.) From the filing [PDF] (via The FOIA Project)

Mr. Scudder, joined by three esteemed members of the academic community, now seeks through this new FOIA litigation to resolve once and for all whether CIA’s electronic production policy inextricably conflicts with the agency’s obligations under FOIA. A new FOIA request – outlined below – seeking electronic copies of historical CIA records is ripe for adjudication by this Court. Through this litigation, Mr. Scudder and his colleagues seek to bring CIA’s refusal to adhere to the letter – to say nothing of the spirit – of FOIA to an end.

This is pretty much more of the same for Scudder v. CIA, only this time Scudder brought colleagues: Ken Osgood, Hugh Wilford, and Mark Stout. He’s also getting out ahead of the CIA’s eventual denials and obtuse claims of technical ineptitude. He’s forcing the issue by forcing the CIA to respond well ahead of its usual lackadaisical FOIA response schedule. Even better, he’s brought another federal judge’s not-at-all-impressed opinion of the CIA’s reluctance to familiarize itself with peedee effs and ceedee romms… in 2016.

Hopefully, the court will prevent the CIA from continuing to blow taxpayer dollars on reams of paper, black toner cartridges, and snail mail postage.

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Comments on “Former CIA Employee Sues Agency Over Its Refusal To Provide Documents In Electronic Form”

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The Wanderer (profile) says:

I _could_ see it being possible that this procedure would be necessary for some types of documents, given certain “wow, how far behind the times are they?” assumptions.

For example, if the request were for information which is used and accessed in the company only through an archaic system with a clunky, 1980s-or-earlier interface (think AS/400, or suchlike), it might indeed be possible that the only “output” mode that such a system has is to print to paper. (While developing a method to extract the information by other means would certainly be possible, it would also cost money, and that’s the sort of thing that could justify either added fees or an “undue burden” claim.)

For the type of information the FOIA request involved here was actually seeking, however, it seems exceedingly unlikely that such a system would be involved at all.

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