Flawed Intelligence

The CIA says it can decide who qualifies for media fee waivers based on the newsworthiness of the information requested.

From the Summer 2006 issue of The News Media & The Law, page 22.

By Corinna Zarek

The CIA’s new standard for granting news media status to records requesters — that the records must concern “current events” — is being challenged in a lawsuit by the National Security Archive. The private research institute, which collects and publishes documents received through the Freedom of Information Act, says that the agency is improperly deciding what is news.

A 1989 ruling by the U.S. Court of Appeals in Washington, D.C., against the Defense Department recognized the archive as a news media requester under FOIA. Until October, the CIA had followed the appellate court’s mandate, charging the archive only copy costs but not search fees for public records requests.

However, in tweaking some of its regulations last year, the CIA started enforcing an overlooked 1997 provision in its own rules that allows wide discretion in judging what information can be released based on whether the information “concerns current events, would be of current interest to the general public,” would enhance understanding of government and is disseminated to a “significant element of the public.”

Based on the provision, the CIA deemed the Archive’s request in October unnewsworthy and refused to waive its search fees. As a result of what it sees as a blatant disregard of the 1989 appellate court decision, the Archive is suing the CIA.

“No agency I’m aware of has anything like this,” said Meredith Fuchs, general counsel for the archive, which is housed at George Washington University in Washington, D.C. “This all comes at the same time that there’s a lot of pressure on agencies about backlogs and processing and this is a way of decreasing the number of FOIA requests.”

The practice also essentially allows the agency to determine what will be news, Fuchs said. “The danger in what the CIA is doing is that if they had their way, the only thing that would be news would be something that is reported by the very mainstream daily press and would only be about the events of today,” she said.

A clear-cut case?

The lawsuit, National Security Archive v. CIA, filed in U.S. District Court in Washington, D.C., in June, asserts that the CIA’s practice, while adhering to its own internal regulation, is inconsistent with FOIA, which says that “representatives of the news media” may be charged only copying fees and not search fees because the media help the government fulfill the purpose of the law — to disseminate information to the public.

Requesters who want to receive news media representative status from the CIA must now meet its “current events” requirements, and failing that, must pay both search and copy fees. A CIA spokeswoman said the agency would not comment because of the pending lawsuit.

In addition to the 1989 decision,
in which a three-judge appellate panel called the archive’s activities “well within the range that Congress ascribed to a
‘representative of the news media,'”
and said Congress intended the term to be broadly defined, a separate 1990 case in the U.S. District Court in Washington, D.C., against the CIA reaffirmed the Archive’s news media status under FOIA.

The Department of Defense asked the U.S. Supreme Court to hear the 1989 case, but the court declined — only the third time the government has brought a FOIA case to the Court which it agreed not to decide, according to a Department of Justice publication. Both the expansion of the FOIA requirements in the CIA’s regulation and the case law on the Archive’s side makes “a very strong case,” Fuchs said.

Affecting the news

The CIA’s new practice not only gives reporters an additional hurdle to overcome in newsgathering, but also potentially can affect the types of stories the media are able to report. Access to a variety of records over different time periods is essential to many areas of reporting, Fuchs said.

There are “things that are of interest to the public that the news media report all the time that don’t necessarily have to do with what’s happening this week,” she said, citing, among others, recent stories about former Secretary of State Henry Kissinger’s phone conversations with Chinese leaders in which he said Washington could allow a communist takeover of Vietnam.

“Those were front page news stories,” she said. “People were interested because that related to a very important time in our country’s history. We lose the kind of deeper stories that might rely on developments over time.”

The CIA regulation also clamps down on the media’s ability to gather information from a broad spectrum of sources, she said. “Usually you don’t immediately know where the smoking gun is. You do a lot of research, ask a lot of questions, talk to a lot of sources, and all of that together leads to what you’re going to write about. With an interpretation like the CIA has, they’re going to make it much harder to do that kind of research.”

Patrick J. Carome, the attorney representing the archive in this case, said the regulation puts the CIA in “the position that it should decide what is ‘news’ instead of the reporters and editors who research and publish stories. If the CIA succeeds in exercising broad discretion to charge additional fees to journalists, despite the plain language of the law, then too often we will find out only what the government wants us to know.”

The regulation gives the agency’s FOIA officers — not the requesters — the power of evaluating the newsworthiness of a subject. Fuchs pointed out that many of the archive’s past requests received seemingly arbitrary grants and denials. (See sidebar, below.)

The Houston Chronicle, in a June editorial on the case, said the law is clear that the Archive is a news media requester and that the CIA should “stick to the business of gathering intelligence rather than trying to tell researchers what is newsworthy and what isn’t.”

The Archive will ask the federal court in Washington to decide the case based on facts presented in court filings rather than at trial. If the judge declines, the parties will argue the case, likely later this year.

The Reporters Committee is leading an effort to file a friend-of-the-court brief in the case.