Court Tightens Lid Over Bay of Pigs Draft Report

WASHINGTON (CN) - The CIA need not release records related to an internal investigation of the Bay of Pigs disaster, a divided panel of the D.C. Circuit ruled.

It has been nine years since a nonprofit called the National Security Archive requested most of a five-volume opus on the operation that CIA staff historian Jack Pfeiffer began preparing in 1973.

A lawsuit from the group in early 2011 led the agency to release three previously withheld drafted volumes but it refused to release the Volume V draft, which it claimed was covered by deliberative-process privilege under Exemption 5 of the Freedom of Information Act.

This exemption protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

U.S. District Judge Gladys Kessler agreed and granted the CIA summary judgment in 2012.

The D.C. Circuit affirmed, 2-1, on Tuesday, citing precedent "that a draft of an agency's official history is pre-decisional and deliberative, and thus protected under the deliberative process privilege." (Emphasis in original.)

Though the archive correctly pointed out that Pfeiffer's drafts never led to a "final" CIA history, the appellate panel confessed that it did "not see the relevance of the point."

"There may be no final agency document because a draft died on the vine," Judge Brett Kavanaugh wrote for the majority. "But the draft is still a draft and thus still predecisional and deliberative."

Such logic applies to draft regulations never issued by the attorney general, or draft speeches never delivered by the president, according to the nine-page ruling.

"Moreover, the writer does not know at the time of writing whether the draft will evolve into a final document," Kavanaugh wrote. "But the writer needs to know at the time of writing that the privilege will apply and that the draft will remain confidential, in order for the writer to feel free to provide candid analysis."

The majority also held that the CIA has not forfeited its rights to the FOIA exemption by releasing similar information regarding the Bay of Pigs operation, including the other volumes.

As for whether harm would result from release of the draft, Kavanaugh said "the harm from release is, among other things, the harm to the candor of present and future agency decisionmaking."

The archive failed as well to sway the court as to a time limit for Exemption 5.

"Looking backward, premature release of privileged information would risk embarrassment of individuals who had put forth certain ideas on the understanding and assurance that their communications would remain confidential," Kavanaugh wrote. "To avoid such an unfair bait and switch, among other reasons, the Supreme Court has recognized that a privilege designed to encourage candid communications must be durable and lasting."

The court concluded the opinion by refusing to segregate any factual material from the draft that the deliberative-process privilege might not protect.

"Our cases have made clear that a draft agency history may not be dissected by the courts in the manner suggested by the FOIA requester here," Kavanaugh wrote.

In a 10-page dissent, Judge Judith Rogers said "the agency's current declarations fail to meet its burden to show the draft is fully protected from disclosure under Exemption 5."

"Of course, an agency does not '"waive[]" its right to claim an exemption from disclosure simply because it has released information similar to that requested,'" Rogers wrote. "But at this point the agency's FOIA-related release of the draft of Volume IV appears from the record to be 'fundamentally inconsistent with [the agency's categorical] claim that release of [the draft of Volume V] would threaten the decisionmaking process of the agency.' Even assuming the draft of Volume V is predecisional, there is neither a final version of Volume V nor anything in the record to suggest that comparing the draft with the other four volumes would implicate the rationale of [D.C. Circuit precedent]. The draft of Volume V, moreover, was rejected at the first stage of the agency's review process, and was not part of the agency 'give-and-take of the deliberative process by which the decision itself is made.'"

Rogers also called it "troubling" that the CIA "criticized the staff historian's work on the draft of Volume V in a declaration filed in the public record of the instant case - stating that in 1981 and 1984 the chief historian thought the draft 'had serious deficiencies as a historical study' and 'offers a polemic of recriminations against CIA officers who later criticized the operation, and against those U.S. officials who [the staff historian] contends were responsible for its failure' - while denying any opportunity for the work to speak for itself (even in redacted form); these circumstances, no less than disclosure, could cause current and future staff historians to curtail the candor and creative flair that the agency values a part of its history process."

Rogers concluded by saying that the District Court should have made an "express finding" about whether the worth of "segregating and releasing non-exempt portions of the draft of Volume V."

"On remand, the District Court's reevaluation of Exemption 5 should include consideration of the effect of the passage of time; the agency is 'not arguing, and has never argued, that a court should never consider the passage of time in determining whether a document is protected by Exemption 5,' and it has identified the draft of Volume V as 'represent[ing] the view of merely one staff historian,' expressed thirty years ago about events that occurred over fifty years ago," she wrote. "Thereafter, as necessary, the district court should address the applicability of Exemptions 1 and 3 also invoked by the agency."

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