Court denies FOIA request for 40-year-old CIA briefings

Sep. 7, 2007  ·   A federal appeals court ruled Tuesday that daily intelligence briefings provided to President Lyndon B. Johnson more than 40 years ago can still be withheld from the public.

A three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) held that the disclosure of two of the President’s Daily Briefs produced by the Central Intelligence Agency in 1965 and 1968 could still pose national security risks if released to the public. The court’s ruling affirmed a July 2005 federal district court decision, which found the CIA did not have to honor a University of California at Davis political science professor’s Freedom of Information Act request.

“The extreme sensitivity of the PDB enhances the plausibility of the CIA’s assertion that disclosure of the requested PDBs could cause harm even 40 years after their generation,” wrote Judge Raymond C. Fisher.

The appeals court’s decision continued a long history of judicial deference to the CIA, which has withheld documents it deemed sensitive to national security interests while supplying relatively little detail in its justification for denying such requests.

“The (CIA’s) declaration that the Ninth Circuit heavily relies upon was circular, doublespeak, and boiler plate and yet it was enough in both courts’ minds to uphold every word of the 40-year-old PDBs,” said Thomas R. Burke, an attorney who represented professor Larry Berman in the case.

Despite the fact that many daily intelligence briefings from the Johnson administration have already been released to the public – including, Burke said, some created the same week as the records requested by Berman – the court accepted the CIA’s assertion that the Aug. 6, 1965, and April 2, 1968, records at issue could uniquely reveal confidential intelligence methods.

Release of the two daily intelligence briefings could also endanger former CIA sources and scare off potentially new sources from signing on as secret informants, the court said.

In what Burke called a “silver lining” for open government advocates, the appeals court did acknowledge that the briefings are not categorically exempt from FOIA disclosure rules, finding the CIA must support its FOIA exemption claims by pointing out the problematic content of a particular briefing.

The court also suggested that while 40 years might not be enough to assuage national security concerns, the CIA will have a tougher time withholding such records as more time passes.

In the broader context, such a conclusion may now force all federal agencies to better consider the time lapsed before denying FOIA requests, Burke said.

“When we’re really talking about matters of history and it’s undisputed that we’re just talking about history, I’m hopeful that the agencies will begin to take a different tact” and release records that have existed over multiple generations, Burke said.

(Berman v. CIA; Requester’s counsel: Thomas R. Burke, Davis Wright Tremaine, San Francisco) — SA

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