CIA is not excused from the FOI Act, federal judge rules

• The CIA lost its bid Wednesday to ignore the Freedom of Information Act in regard to records on the treatment of detainees in U.S. custody in foreign countries.

Feb. 3, 2005 — U.S. District Judge Alvin Hellerstein in New York City rejected the CIA’s claim that records requested by the American Civil Liberties Union and other groups are “operational” files not subject to the Freedom of Information Act.

The agency had claimed that the CIA Information Act allows the agency’s director to exempt operational files from the FOI Act, excusing the agency from publishing or disclosing the files and also from searching or reviewing the records in connection with an FOI request.

But Hellerstein said that an exception to the CIA Information Act kicks in when the agency’s conduct of an intelligence activity is under investigation for impropriety or for violation of a law, executive order or presidential directive. Records the agency finds may still be withheld if an exemption to the FOI Act applies, but if there is an investigation, the agency may not avoid the requirements of the FOI Act, Hellerstein wrote.

The CIA director has never made a finding that these operational records would be exempt, the judge noted. But even if he had, the criminal investigation of allegations of impropriety in Iraq begun by the agency’s inspector general in May 2004 would render the records subject to the FOI Act.

The ACLU and several other watchdog groups filed FOI requests in 2003 and 2004 seeking records concerning the treatment of detainees held after Sept. 11, 2001, the movement of detainees to countries allowing torture and detainee deaths. Hellerstein ordered the agencies to respond by mid-October.

The Defense Department has asked for more time to process its requests and will go before the judge in late February in an effort to make its case for more delay. Several other agencies have released records in response to the requests.

(ACLU v. Department of Defense; Attorney for requesters: Lawrence Lustberg, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J.) — RD

© 2005 The Reporters Committee for Freedom of the Press

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