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CIA backtracks on its power to judge 'newsworthiness'

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   Sep. 14, 2006

NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   Sep. 14, 2006

CIA backtracks on its power to judge ‘newsworthiness’

  • The National Security Archive is poised to win a lawsuit against the CIA after the agency abandoned its plan to charge higher fees in a recent court filing.

Sep. 14, 2006  ·   The CIA has promised to stop judging the individual newsworthiness of the FOIA requests of the National Security Archive, a private research organization, in a move that could affect groups that have been charged higher fees under a recent change in CIA policy.

In the CIA’s ongoing legal dispute with the Archive, the agency recently made a full-scale retreat from its earlier position that would have potentially cost the Archive thousands of dollars for search fees relating to its Freedom of Information Act requests, instead of only charging the private research institute for copy costs as a member of the news media.

In court filings and in a letter to the Archive dated Friday, the CIA also agreed to change its policies for determining what constitutes a “representative of the news media” under FOIA so that the agency is in line with the government’s model regulations.

The case is still pending before the U.S. District Court in Washington, D.C, but the move appears to signal a victory for the Archive. The next hearing is scheduled for Oct. 1, but today U.S. District Judge Gladys Kessler ordered the parties to confer to determine how they wish to proceed and if that scheduled hearing is necessary.

“The CIA has largely backed down from its position, which is a good thing,” said David Mendel, an attorney who represented the Archive. “On the other hand, the agency has acted so inconsistently and erratically here that it is important for the court to step in and formalize and extend the release proffered by the CIA so that the agency does not do it again to the Archive or to anybody else.”

A 1989 a federal district court ruling in a separate case had declared the Archive a representative of the news media based on its production of scholarly books and articles. Until last year the CIA had recognized the federal court’s decision and acknowledged the organization’s legal right to reduced fees under FOIA.

But in October the CIA suddenly changed its policy and began assessing the content of each of the Archive’s FOIA requests to determine whether they were sufficiently “newsworthy” to warrant the reduced fee status. The CIA then denied the Archive news media status for 42 separate FOIA requests based on their lack of newsworthiness.

Faced with paying the prohibitively high search and review fees, the Archive filed a lawsuit.

Just as abruptly as the new policy appeared, the CIA changed course. Last week the agency announced in its letter to the Archive it had “reconsidered” its earlier decision to make case-by-case assessments of the Archive’s FOIA requests to determine whether they met an agency-crafted definition of news.

“We’re delighted that the CIA has acknowledged it was wrong to try to be the arbiter of what should be considered newsworthy,” said Meredith Fuchs, the Archive’s general counsel. Before filing the lawsuit, Fuchs said, “we told [the CIA], in our letters and in person, we thought this was a frivolous position for them to take and they decided to go forward with it anyway.”

Fuchs was hopeful this latest move by the CIA will bring to an end an 11-month delay in processing the Archive’s FOIA requests while at the same time ensuring the agency does not assume a role traditionally reserved for news editors.

“This whole dispute shows how easy it is for agencies to harass the news media when they want to and how it can delay a FOIA request,” Fuchs said.

(The National Security Archive v. Central Intelligence Agency; Patrick Carome and David S. Mendel, Wilmer Cutler Pickering Hale and Dorr LLP; Washington, D.C.)NW

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