The ACLU is suing the CIA over its withholding of CIA Torture Report-related documents, including the so-called Panetta Review. The CIA, so far, has managed to withhold the requested documents in their entirety, citing multiple FOIA exemptions. The ACLU isn't taking no for an answer and has challenged the CIA's refusal to turn over any of the documents the ACLU has requested. But this effort has now been shut down by the DC District Court.
The decision starts by noting that if the SSCI report (Torture Report) had remained solely in the hands of the Senate, it would have been unobtainable via FOIA requests. The ACLU had argued that its transfer to the CIA has released it from this clearly delineated restriction. ("For purposes of FOIA, the definition of an “agency” specifically excludes Congress, legislative agencies, and other entities within the legislative branch.")
The court finds otherwise:
The Court’s inquiry, therefore, is a streamlined one: do there exist “sufficient indicia of congressional intent to control,” id., the Full SSCI Report? [...] Although this case is no slam dunk for the Government, the Court answers that question in the affirmative.
The decision quotes from a SSCI letter from 2009 referring to the still in-the-works Torture Report.
In its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation “remain congressional records in their entirety and disposition,” such that “control over these records, even after the completion of the Committee’s review,” would “lie exclusively with the Committee.” June 2, 2009, SSCI Letter, ¶ 6. Making its wishes even more explicit, it continued, “As such, these records are not CIA records under the Freedom of Information Act, or any other law.”
The ACLU pointed out that this letter from 2009 was both outdated and irrelevant to the issue at hand, as it only pertained to the use of documents shared with the Senate
by the CIA, rather than the resulting report. The court disagrees, stating that the language in the 2009 letter is broad enough to cover the finished product, rather than just the documents contributing to it. But it also points out the CIA's arguments in defense of its secrecy are also inconsistent.
One final point bears mention. Defendants’ own characterizations of the scope of the letter vary somewhat in their submissions. Compare, e.g., Higgins Decl., ¶ 12 (“One key principle necessary to this inter-branch accommodation . . . was that the materials created by SSCI personnel on [the] segregated shared drive would not become ‘agency records’ even if those documents were stored on a CIA computer system or at a CIA facility.”) (emphasis added), with Def. Reply at 5 (explaining that the language of the June 2009 letter “covers the Full Report” as a “final . . . report or other material generated by Committee staff or members,” even though it did not reside on the network drive).
The ACLU also argued that Dianne Feinstein's letter from 2010 is a better indicator of whether or not the report and its supporting documents are FOIA-able.
As its pièce de résistance, the ACLU seizes on the December 10, 2014, transmittal letter from Senator Feinstein, claiming it represents “direct evidence of the SSCI’s intentions for the Final Full Report.” Id. That letter, to recap, states:
"[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve this result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit." December 10, 2014, Feinstein Letter.
“By encouraging the use and dissemination of the Final Full Report among the executive branch, and by leaving to the executive branch the decision as to how ‘broadly’ the report should be used within the agencies,” claims Plaintiff, “SSCI relinquished its control over the document.”
The court rebuts this argument as well. Rejecting the ACLU's "refinement" of the entirety of SSCI-related communication between the Senate and the CIA to a single letter, the court declares that Feinstein's instructions must be considered in context.
The Court, therefore, need not confine its consideration to the moment of transmission. On the contrary, SSCI’s 2009 letter sets the appropriate backdrop against which Senator Feinstein’s 2014 letter can be properly understood.
So teed up, her letter does not evince congressional intent to surrender substantial control over the Full SSCI Report. While it does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless. Most significantly, the dissemination authorized by the letter is limited to the Executive Branch alone. It plainly does not purport to authorize the agencies to dispose of the Report as they wish – e.g., to the public at large.
The court also adds that Feinstein's statement accompanying the public release of the report summary further declares the documents off-limits -- at least until further notice.
SSCI’s deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff’s theory that Congress intended to relinquish control over the document only days later.
It finds similarly for the "Panetta Report" documents, citing its rejection of Jason Leopold's FOIA request
. The CIA continues to assert that these documents are "deliberative" in nature and out of the reach of FOIA requests, despite the fact that what's being deliberated has already been made public (in the summary report) and handed over to the executive and legislative branches (via the full report). The court upheld the CIA's exemption (b)5 declaration, stating that it doesn't matter whether or not portions of the sought documents are in the public domain, but rather that the documents are part of an agency's "deliberative process." (This is why exemption (b)5
is the most-abused FOIA exemption.)
As it had already shot down Leopold's request, the court finds no reason to alter its course, despite some "novel" arguments advanced by the ACLU -- including quoting Sen. Udall's assertion
that the Panetta Review is a complete work of critical importance (a "smoking gun") that far exceeds the CIA's portrayal of it as an unfinished pile of somewhat related deliberative works-in-progress. The CIA's motion to dismiss is granted.
With this decision (and many preceding it), government agencies are being given even more reason to declare anything they don't want released "deliberative" and trust the courts to uphold their declarations.