Intelligence officials can selectively release classified information to trusted journalists while withholding the same information from other citizens who request it through open records laws, CIA lawyers argued Wednesday.
In a motion filed in New York federal court, the CIA claimed that limited disclosures to reporters do not waive national security exemptions to Freedom of Information Act (FOIA) requests. Intelligence and law enforcement agencies frequently deny records requests on the basis of protecting sensitive national security information, one of nine exemptions written into the federal FOIA law.
The case stems from lawsuit against the CIA by New York-based independent journalist Adam Johnson, who had used FOIA to obtain emails between the agency’s public information office and selected reporters from the Wall Street Journal, the Washington Post and The New York Times. The emails the CIA provided to Johnson were redacted, leading him to question why he was not allowed to see the same information that had been given to uncleared reporters.
Johnson challenged the redaction in court, arguing that the CIA, once it has selectively disclosed information to uncleared reporters, cannot claim the same information is protected by a FOIA exemption.
The judge in the case appeared to find Johnson’ argument compelling. In a court order last month, Chief Judge Colleen McMahon of the Southern District of New York said FOIA laws do not authorize limited disclosure, to favored journalists or otherwise.
“In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private,” she wrote. “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.
McMahon also said it didn’t matter if the journalists in question published the information they received, only if the CIA waived its right to deny the information.
“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?” she wrote, asking CIA lawyers to come up with a stronger defense for non-disclosure.
The CIA’s response on Wednesday centered on the contention that the information disclosed to favored reporters had not actually entered the public domain. As such, the limited disclosure did not constitute a waiver of the FOIA exemption, government lawyers said.
“The Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken,” the CIA motion stated. “The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain.”
Selective disclosure of classified information to uncleared reporters is a fairly common practice recognized by Congress, which requires briefings by the CIA on such disclosures, according to Steven Aftergood, the director of the Federation of American Scientists’ Project on Government Secrecy. Johnson’s case, if decided in favor of the CIA, could end up ratifying the practice via the courts, Aftergood says.
Johnson has until March 1 to reply to the government’s motion, which asks for a summary judgement in favor of the CIA.
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