by Steven Aftergood, Secrecy News, Special Contributor to TheBlackVault.com
Even when the Central Intelligence Agency possesses a releasable document in a softcopy format, the Agency typically refuses to release the softcopy version in response to Freedom of Information Act requests, and insists on providing a hardcopy version of the document instead.
A federal judge said last week that that may be a violation of law.
The issue arose in a FOIA lawsuit seeking electronic copies of 419 articles from the in-house CIA journal Studies in Intelligence. The lawsuit was brought by Jeffrey Scudder, an information technology specialist who has worked in the intelligence community for 23 years.
Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff “as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located.”
However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons. But this practice may be inconsistent with the requirements of the FOIA.
“Congress anticipated that recalcitrant agencies would resist being responsive to requesters’ format choices,” wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make “reasonable efforts” to accommodate requesters’ preferences.
“Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard.”
“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,” Judge Howell summarized.
In fact, she wrote in her March 12 opinion, “Under this Rube-Goldbergian process, the same document, even if unclassified, must be printed from the defendant’s classified system in paper form at least twice…, and rescanned into the same classified system at least twice….”
Not only that, but CIA would charge the requester extra for its trouble. “As a result of this process, the defendant [CIA] asserts that the cost of electronic production to the plaintiff would be higher than that of producing the records in paper format, since the defendant would incur all of the costs associated with the paper production as well as the additional costs of re-scanning the printed responsive records, and the cost of any removable media provided to the plaintiff.”
But all of that is ridiculous, said Mr. Scudder, who contended that CIA is attempting to “frustrate [the] core purpose [of the FOIA] through administrative gimmicks designed to impose unreasonable financial burdens upon requesters.”
“The only reason CIA does not produce electronic versions of documents responsive to FOIA requests is that they choose not to do so,” said attorney Mark S. Zaid, who represents Mr. Scudder. “There is no technical reason to prevent it.”
Crucially, Judge Howell determined that “A FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”
Judge Howell found that CIA’s understanding of its legal obligations and of the role of the Court was “incorrect” in various respects, and she concluded that several of its factual assertions were materially disputed.
“The plaintiff [Mr. Scudder] has, for example, alleged that he has personally used the defendant’s classified system to create a PDF file, something the defendant has stated is impossible,” Judge Howell noted.
In view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.
Instead, she granted Mr. Scudder’s motion for discovery, and the case will proceed to trial.
While the substance of the case concerns CIA’s information and FOIA practices, the Department of Justice that made its own independent decision to defend CIA’s handling of the Scudder FOIA request. The skeptical comments voiced by Judge Howell may be understood as an implicit criticism of that Justice Department decision.
This week is Sunshine Week, an annual celebration of open government values. As it happens, however, the federal government is closed today due to snow.