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$350,000 FOIA Settlement to National Security Archive Spurred CIA IG Investigation

July 13, 2017
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Should have just released the documents…

A blistering 2008 Central Intelligence Agency legal settlement of $350,000 to the National Security Archive’s pro bono lawyers, paid after losing a Freedom of Information Act case, led to the opening of an Inspector General investigation to review whether the CIA violated “policy and federal law” with respect to the FOIA.

The IG report, released in response to a FOIA request filed by Jason Leopold, reviews an anonymous allegation by a CIA employee of FOIA “missteps” at the Agency.  The IG report investigated how the Agency treated National Security Archive FOIA requests, including multiple reversals –some “on its own initiative” and some “reversed by the court several times” on whether the Archive should be treated as a news media organization, and pay fewer FOIA fees.  This CIA FOIA mismanagement caused the CIA “great confusion,” a large settlement bill, and a tongue lashing by DC District Judge Gladys Kessler.

The Deep (ly confused) State.

Kessler found that the CIA “has twice made highly misleading representations to the Archive, as well as to [the] Court,” explained that the CIA’s position was “truly hard to take seriously,” characterized the CIA’s conduct as “extraordinary misbehavior,” concluded that the CIA’s “past actions strongly suggest that their alleged misconduct will recur,” and enjoined the CIA from illegally denying the Archive’s news media fee status.

According to the newly released IG report, in addition to losing the court case to the Archive and paying a $350,000 settlement, the CIA also began an “added layer of review” for Archive FOIA requests which resulted in “no requests from the [National Security Archive being] approved for release between December 2008 and March 2009.”

Despite the fact that “[f]our of seven staff officers interviewed were aware that requests from the NSA were treated differently than other requests,” the IG report found “no information to support the allegation of deliberate malfeasance or dereliction of duty” in the CIA’s processing of FOIA requests.  The CIA had stopped conducting its additional, delaying FOIA review, before the IG report was written.  Nonetheless, the report concluded by noting the CIA’s “regulatory and statutory violation” of failing to process FOIA requests by the statutory 20 day deadline.

Attorneys Gregory G. Katsas, Jeffrey A. Taylor, John R. Tyler, and

The CIA’s “extraordinary misbehavior.” came with a price tag.

Heather R. Phillips argued this case for the United States Government.  CIA public FOIA liaison, Scott A. Koch, even sent the Archive a letter to “sincerely apologize” for its “administrative mistake[]” of denying news media status even after it assured the court it would follow the law.  But, then, on the next business day, the CIA again failed to grant the Archive news media status, in direct contravention of the “sincere apology” letter they filed with the court.  Pat Carome of WilmerHale LLP served as counsel to the Archive which recieved $20,000 of the settlement.

And in a final coda to the CIA’s lack of attention to detail to FOIA matters, the IG report misidentified the National Security Archive as the National Security Archives.

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