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Sometimes a watchdog has to bite

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From the Fall 2006 issue of The News Media & The Law, page 23. By Loren Cochran FOIA and open…

From the Fall 2006 issue of The News Media & The Law, page 23.

By Loren Cochran

FOIA and open government disputes are often predictable. A requester asks for everything, a government agency gives nothing or next to nothing; the requester appeals either internally or to a court of law, and, in a solution befitting Solomon, the parties meet somewhere in the middle, with the requester receiving something less than desired and often less than she is entitled to. So goes the typical public access request.

But every once in a while, something amazing happens, something so out of the ordinary that it can honestly be described as “shocking.” Such is the case with a recent public records victory for the independent nongovernmental research institute and government watchdog, the National Security Archive, against the CIA.

The Archive is known for being an active requester and a needle in the side of many federal government FOIA officers. It’s also known as the entity responsible for unearthing materials for the benefit of the general public on the Cuban Missile Crisis, the Iran-Contra affair and countless other now-notorious U.S. government affairs.

The Archive is known as well for its unabashed use of lawsuits as a mechanism to help pry loose public records from the clenched fingers of the government’s best secret keepers. In fact, it was a 1989 case against the Department of Defense that laid the groundwork for the Archive’s recent records success with the CIA. In that case, the Archive showed an appeals court that it was a member of the news media because of its long history of publishing and disseminating government records for the general public’s benefit.

This time around, the Archive made its FOIA requests to the CIA as a member of the news media seeking a multitude of information including documents regarding the agency’s involvement in Afghanistan in the 1970s, U.S. relations with the Indonesian government, and intelligence files on border agreements between Venezuela and Colombia, among other things.

Out of options

The CIA started its response by stringing the Archive along for eight months, asking again and again for more information and clarification on the relationship between the records desired and the news media fee category requested. Then, based on its own evaluation of the “newsworthiness,” or lack thereof in this case, of the specific records requested, the CIA refused to acknowledge the National Security Archive as a member of the news media.

The agency’s decision, besides blatantly ignoring established law, also meant that the Archive could expect tens of thousands of dollars of search fees usually reserved for records requesters with purely commercial interests at heart. Left with no other viable option, the Archive filed suit complaining that the CIA had arbitrarily anointed itself as the editorial despot for all things coming from behind the gates at Langley.

The Archive pursued the case with vigor, enlisting the help of Washington media attorney Pat Carome.

And on the eve of a pivotal court ruling, the Archive received a letter from the CIA agreeing to: 1) Recognize the Archive as a news media requester for all outstanding searches and waive all search fees; 2) Recognize the Archive as a news media requester for all future requests; 3) Change their regulations to comport with the government’s model FOIA guidelines, and; 4) Reimburse any search fees. It was as unconditional and immediate a surrender as a public records requester could ever hope for.

The bigger picture

What the CIA was seeking to do in its initial refusals to turn over the records was decide, based on its own case by case analysis, whether the Archive’s requests were “newsworthy” based on the agency’s internal agenda. The ramifications of this kind of policy, where the government decides what the news is, rather than journalists, is mind-boggling.

Still to be decided is the issue of attorney fees. Undoubtedly a part of the CIA’s complete capitulation strategy was avoiding a formal court ruling in favor of the Archive, which is a condition of getting court-ordered fees. Fortunately for the access community, the Archive never backed off.

As Congress considers strengthening public records laws, this case serves as an important reminder of the power of good old-fashioned litigation. Out of 22,421 FOIA requests denied by federal agencies in 2005, only 404 made it to a federal court. That means that less than 2 percent of the time denials are followed by a lawsuit. Options like pre-lawsuit mediation and a FOIA ombudsman are important to consider in streamlining the federal Freedom of Information Act, but sometimes there is no greater vehicle for change than a summons and complaint and a litigant dedicated to the cause of open government.