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Dents, but No Crack, in CIA’s Secrecy Armor

(CN) - The CIA and the Office of the Director of National Intelligence can evade most claims to reveal how they process Freedom of Information Act requests, a federal judge ruled.

National Security Counselors, or NSC, a Washington, D.C.-based advocacy group is the lead plaintiff among a group of journalists, academics and watchdog groups that submitted more than 30 separate FOIA and Mandatory Declassification Review, or MDR, requests between July 2011 and January 2012.

The CIA determined that five of NSC's requests fell in the "all other" fee category, forcing them to pay for search costs after the first two hours and any potential responsive records beyond the first 100 pages.

In an Oct. 7, 2011, letter, the agency warned that it could not limit its search to the free portion because "some of the searches are automated, whereas others are not," and therefore "the total search effort cannot be limited in an arbitrary way, such as the maximum amount that can be performed as you requested."

The NSC alleged that this reply effectively showed a CIA policy to violate FOIA's guarantees of free access.

Likewise, the CIA allegedly began handling MDR requests differently on Sept. 23, 2011, charging 50 cents per page, $10 per CD and $15 for each requested reproduction.

The agency also allegedly purported to add fees of $20- and $72-per-hour for the time spent reviewing requests, even if it failed to turn up responsive documents.

NSC complained that the CIA typically refuses to send responsive records electronically because its classified computer system alone houses the FOIA-processing software.

It additionally challenged the CIA's practice of invoking exemptions under the National Security Act.

In 2004, the Intelligence Reform and Terrorism Prevention Act allegedly stripped the CIA of its unilateral power to make such decisions, and transferred that power to the then-newly created Office of the Director of National Intelligence.

NSC used this statute to challenge the CIA's claimed authority and compel of a rewrite of the agency's standard operating procedures for FOIA.

The plaintiffs, who describe themselves as frequent FOIA requesters, lost all of these claims on procedural grounds before they had the chance to argue them on the merits.

U.S. District Judge Beryl Howell ruled Wednesday that they needed to prove that the CIA's policies would affect tangible, outstanding requests - not just hypothetical future ones.

In a footnote, she added that she "does not doubt" that the plaintiffs have future FOIA requests in the works, but that Supreme Court precedent put the burden on them to prove their standing.

NSC lost two other claims because it did not appeal its initial denial to the CIA before suing the agency. FOIA requires that the requester exhaust administrative remedies before taking the matter to court.

The advocacy group made some headway in two counts: forcing the CIA to review some of its redactions and reproduce records it already released.

One request called for a review of 32 documents currently published on the CIA Records Search Tool, or CREST, an online repository for declassified documents.

Plaintiff Kathryn Sack, who placed the request, wanted the CIA to re-review the redactions to see if any of the information could be released, but the CIA claimed that her request was unclear.

Howell conceded "that Ms. Sack's FOIA request was not a model of clarity."

"If she were seeking a re-review of the CREST documents at issue, she should have ideally stated that she was seeking unredacted copies of those documents, rather than only saying she was seeking 'copies,'" she wrote (emphasis in original).

"Yet, that is not all that Ms. Sack said in her request," she added. "Rather, she clarified what she meant by 'copies' in the very same paragraph, stating that any redacted versions of the requested records 'should be reviewed for full release.'"

The CIA cannot throw out this request, and it failed to create a new rule of denying documents it already has released.

"The court finds nothing in the FOIA that would foreclose an individual from seeking the production of records already disclosed to him, particularly in a situation like the instant case where an individual seeks redundant documents in order to obtain a new piece of information," the opinion states.

These gains aside, the plaintiffs failed to show that the CIA should have notified the public and solicited comment that it would force both commercial and noncommercial requesters to pay for declassification reviews.

Typically, FOIA requests grant fee waivers for use deemed in the public interest for non-commercial use.

The plaintiffs warned that the "sheer magnitude of review fees" the policy changed would cause "would be enough to effectively prevent non-commercial requesters ... from failing any but the simplest MDR requests."

Howell denied, however, that closing off public debate about the change violated the Administrative Procedures Act.

In a study on Openthegovernment.org late last year, a coalition of civil libertarians found a dramatic growth in FOIA backlogs, and a budget structure designed to keep more information secret. Half of 1 percent of classification expenditures goes toward declassification, while 99.5 percent funds securing classification, the report found.

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