FOIA Lawsuit: CIA Press Office Emails (Updated)
Never let a federal judge get your hopes up in a FOIA case (or ever, really). Judge McMahon decided that even though Mr. Johnson's case presented a "perfect storm" of facts supporting disclosure, the CIA nonetheless did not waive its exemptions by sending classified information to journalists. Why? Because my client did not prove the journalists shared the information (or that it was otherwise compromised). In other words, journalists are members of the public, but giving them information is not tantamount to making information "public."
Essentially the CIA Press Office (!) can deputize any member of the public, at its unfettered discretion, to receive highly sensitive materials - so long as they ask them not to share it.
A link to the opinion: https://fas.org/sgp/jud/johnson-cia-042618.pdf
Unsurprisingly, the CIA caved and removed the redactions from roughly 600 pages, leaving only a handful of redactions they claim are necessary to protect highly classified information. The updated production is here (first batch, second batch) and the 9 redacted pages are here. As you can see, the redacted portions appear to relate to the CIA's vaccination debacle in Pakistan as well as some surveillance activity in Syria. Unable to get any answer from the agency why those paragraphs are so critical to withhold, I filed a Motion for Summary Judgment seeking their release.
The CIA, in support of its redactions, insisted that it was entitled to selectively disclose otherwise classified information -- via unencrypted email -- to professional journalists. In support, they cited the dreaded Phillippi v CIA case, which established the notorious "Glomar" doctrine (aka the "neither confirm nor deny" defense). Phillippi was a 1981 D.C. Circuit case that has resulted in many unfortunate FOIA denials over the past few decades. Fortunately, because my suit is in the Southern District of New York, Phillippi is not binding on the Court. Another perk of not living in Washington!
Even better, Judge McMahon doesn't like Phillippi either! In response to the CIA's brief, Judge McMahon issued what legal enthusiasts like to call a "benchslap." She excoriated the CIA for submitting an "entirely inadequate" legal brief and called Phillippi "unpersuasive," "unconvincing," and "far-from-self-evident" -- a potential game changer for FOIA. Here is the key passage:
CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose). In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.
And here is the best part:
I suppose it is possible that the Government does not consider members of the press to be part of "the public." I do.
Here is a link to the full order. Judge McMahon has offered the CIA one last chance (in what will be its third brief) to come up with a better argument. Stay tuned!
3/16/17 Original Post:
I am pleased to represent independent journalist Adam Johnson in his FOIA lawsuit against the Central Intelligence Agency. The case is Johnson v. CIA, 1:17-cv-01928 (SDNY).
Adam is a contributing analyst for Fairness and Accuracy in Reporting (aka FAIR) and the co-host of the well regarded podcast Citations Needed. In addition, he has been published in The Nation, the New York Times, and the Los Angeles Times, among other outlets. Adam writes incisively about the intersection of politics and the media and maintains a lively twitter presence (@adamjohnsonnyc). I look forward to collaborating with him on future FOIA projects.
A bit about the case:
The CIA's Office of Public Affairs is the primary point of contact between the agency and the news media. As such, many journalists rely upon the OPA to request information or comment. In 2012, then-Gawker journalist John Cook filed a request to the CIA for correspondence between the CIA OPA and several prominent journalists from a host of mainstream outlets. A couple years later, he received a few hundred pages, which can be found here. As you can see, while the journalists' emails are largely untouched, the CIA's own spokespersons' emails are almost entirely redacted. Ironic, considering that correspondence is with journalists - ostensbily for publication.
At the time, John was the Editor-in-Chief of The Intercept, where I was working as an attorney (and sometimes-journalist). John asked me to appeal the denial administratively, not realizing that the agency's deadline for appeal had already elapsed. What to do?
The answer: file a fresh request for the same documents. Occasionally, journalists ask for the same documents produced to another journalist (FOIA does not provide any window of exclusivity for successful requests). This makes sense in cases where a media outlet is sitting on a pile of documents without releasing them all. But asking for the same documents John received wouldn't advance the ball here.
However, one could ask for the same documents requested by John, preserving the underlying right to appeal. As the FOIA community grows, and services like MuckRock allow requesters to share their FOIA requests with like-minded individuals online, this could open up opportunities to identify previous efforts that fell short for whatever reason and would benefit from a new push (or new facts). The thought of an iterative process intrigued me, since it would also cut down on the amount of time an agency needed to process a request - in these cases, the agency would have already conducted the search and identified the relevant documents, which is half the battle.
I never wound up testing this idea, and John returned to Gawker/Gizmodo, but the concept stuck with me over the past few years. So, when I began discussing potential FOIA projects with Adam, I suggested he might want to attempt this pioneering maneuver.
Why this suit?
I'm mindful of the potential for predatory FOIA behavior. None of the journalists in the documents released appear to be doing anything other than their job. Nonetheless, the public are in a strange place where the journalists' half of the correspondence is public, but the CIA's is not.
Further, the notion that CIA spokespersons can selectively disclose information to select journalists for publication - and then turn around and claim that very same information would damage a national interest - is frankly bizarre. The result is that the CIA pushes out reporting that appears to come from agency "sources" rather than official channels, with no fingerprints left behind.
Hopefully, this lawsuit will establish two important precedents for future FOIA requests:
1) If you disclose to one member of the public - let alone a journalist - you should disclose to all; and
2) Agencies can't refuse to re-process substantively identical FOIA requests.
Watch this space for further developments.
- Dan Novack