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Wednesday, July 24, 2024 | Back issues
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CIA, Ex-Employee Told to Get It Together on FOIA

(CN) - An evidentiary hearing will be unavoidable if the CIA and a former employee can't resolve a dispute over whether the agency must provide electronic records in response to an FOIA request, a federal judge ruled.

Jeffrey Scudder, a former CIA employee with over 23 years in the intelligence community, sued the CIA in 2012 after receiving no timeframe for when his Freedom of Information Act request, seeking electronic documents, would be processed.

Judge Beryl Howell granted Scudder's motion for discovery last week, while denying four cross-motions for summary judgment.

Scudder sought 419 "Studies in Intelligence" articles from the CIA and the issue at hand is whether the agency must provide the requested records in electronic format.

The CIA claims it can't produce the records "in an unclassified electronic format" due to its security procedures and the only way to fulfill Scudder's FOIA request is to print 19,000 pages.

Scudder says that, given his knowledge of the CIA's inner works and procedures, the agency is in fact capable of providing unclassified electronic documents.

"The plaintiff has challenged a myriad of factual allegations presented by the defendant and the defendant, in turn, has made efforts to discount, dismiss, or refute factual assertions made by the plaintiff," stated Judge Howell. "Out of this miasma of disputed facts, both parties, nevertheless, assert that summary judgment may be appropriately granted in either the plaintiff or the defendant's favor."

Summary judgment was denied and the judge wrote that an evidentiary hearing may be "unavoidable" to settle the disputes.

But Judge Howell ruled that, if the parties can provide a joint status report by the end of the month that resolves the remaining "issues of material fact", a hearing can be avoided.

"The court will allow the parties the opportunity to meet and confer to determine if a discovery plan that stops short of a hearing would adequately resolve the material factual disputes in the instant matter," she wrote in the 55-page opinion.

Judge Howell pointed out that producing 19,000 paper printouts in response to Scudder's FOIA request is an outdated approach.

"This very method was singled out by Congress as an example of an archaic system out of step with the times nearly twenty years ago with the passage of the Electronic Freedom of Information Act Amendments of 1996," she wrote.

The joint status report is due by March 31. Judge Howell said she expects it to include a plan for discovery to resolve disputed issues of material fact, state the parties' views on the need for an evidentiary hearing, and provide a proposed schedule for discovery if the parties can get that far, or for an evidentiary hearing, if they can't.

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