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Thursday, June 20, 2024 | Back issues
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Judge Orders CIA to Give Up the Goods on Spying Offenses

(CN) - The CIA must disclose certain materials concerning actual or suspected intelligence violations that occurred after the Sept. 11 terrorist attacks, a federal judge ruled.

Since 2008, the Electronic Frontier Foundation has repeatedly requests the reports that various federal agencies had pursuant to their roles under executive order 13462.

Signed by President George W. Bush, that order ensures "that the president and other officers of the United States with responsibility for the security of the nation and the advancement of its interests have access to accurate, insightful, objective, and timely information concerning the capabilities, intentions, and activities of foreign powers."

President Barack Obama amended the order, which established the President's Intelligence Advisory Board, with executive order 13516 in 2009.

The orders direct agencies to send their reports to the Intelligence Oversight Board, a five-member committee of the board, and Office of the Director of National Intelligence.

In refusing to divulge the reports they made since Sept. 11, 2001, the agencies cited FOIA § 552(b), which grants certain documents "be kept secret in the interest of national defense or foreign policy."

The Electronic Frontier Foundation filed suit in Oakland, Calif., claiming a failure by the agencies to demonstrate that the information was exempt from disclosure.

U.S. District Judge Saundra Armstrong ordered the disclosure of certain information on Monday, finding that the agencies had failed to fulfill their burden with regard to Vaughn indices, a FOIA requirement that indexes redacted and withheld information.

"Having reviewed the voluminous materials submitted in connection with the parties' cross-motions for summary judgment, the court finds that ... the Vaughn submissions provided by the defendants are not sufficiently specific to allow the court to determine whether the withheld information falls within the claimed FOIA exemptions justifying nondisclosure," the 49-page ruling states. "The court also finds that no defendant has performed an adequate segregability analysis. In light of these deficiencies, the court concludes that ... defendants have failed to sustain their burden to demonstrate that the withheld information is exempt from disclosure under the claimed exemptions. Therefore, the defendants must either release the withheld information they failed to show is exempt from disclosure under FOIA or revise their respective Vaughn submissions."

The agencies failed to provide a particularized explanation of how disclosure of withheld information in redacted documents would damage the claimed interest protected by nondisclosure, Armstrong said.

As such, the agencies must hand over information that Armstrong did not deem was properly withheld, or they must provide satisfactory supplemental Vaughn indices and declarations.

"In the event that any defendant decides to revise its Vaughn submissions, the defendant should bear in mind that the purpose of the submissions is not merely to inform the plaintiff of the agency's conclusion that a particular document or portion thereof is exempt from disclosure under one or more of the statutory exemptions, but to afford the plaintiff an opportunity to intelligently advocate for the release of the withheld information and to afford the court an opportunity to intelligently review the soundness of the withholding," the ruling states.

Armstrong ruled the agencies must serve the Electronic Frontier Foundation with supplemental materials, if filed, within 60 days. The parties then meet and confer to narrow the documents at issue.

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