NCH Asks Federal Court to Review Detrimental FOIA Decision

Lee White, March 2013

On January 29, the National Coalition for History (NCH) filed an amicus curiae (friend-of-the court) brief in the U.S. Court of Appeals for the D.C. Circuit in support of the National Security Archive's case against the Central Intelligence Agency (CIA). The coalition urged the appeals court to overrule a lower court ruling that would prohibit the release of CIA records pertaining to the Bay of Pigs invasion. In May 2012, the archive sued the CIA under the Freedom of Information Act (FOIA) seeking to declassify its "Official History of the Bay of Pigs Operation."

The National Coalition for History (NCH) filed the brief on behalf of over 50 organizations representing thousands of historians, archivists, political scientists, educators, and researchers around the world who would be adversely affected by the lower court ruling. The NCH is concerned the case would set a precedent that would have devastating consequences on future access to records and materials for research, especially in the areas of national security, foreign relations, military history, and presidential history. The NCH fears federal agencies will rely on the district court's overly broad interpretation to deny similar FOIA requests in the future.

There are nine exemptions under the FOIA that federal agencies can claim in denying release of records requested by the public. FOIA Exemption Five covers legally "privileged" internal communications in the executive branch. The most commonly encountered privilege under Exemption Five is the "deliberative" privilege, which covers "predecisional" materials written as part of the decisionmaking process in federal agencies.

Among the significant and unresolved legal questions raised by this case are the circumstances under which draft histories prepared by agency historians are subject to withholding under Exemption Five, and how the passage of time affects an agency's rationale for withholding historical information. As the coalition's brief succinctly states, the release of a 30-year-old volume of history, written about events that took place more than half-century ago, by a historian who has been dead for 16 years, will cause no harm to the deliberative process of the CIA's historians.

Between 1973 and 1984, a staff historian at the CIA, Dr. Jack Pfeiffer, worked to create a historical study of the invasion and the agency's involvement in it. He ultimately drafted a multi-part survey, the last volume of which (Volume V)—describes an internal investigation that the agency undertook in 1961 in the wake of the operation's failure.

The National Security Archive's lawsuit did yield the release of Volumes I, II, and IV. Volume III was previously released under the Kennedy Assassination Records Act in 1998 (read those four volumes).

In November 1981, Pfeiffer submitted the final volume of his Bay of Pigs history to his supervisor, CIA Chief Historian Dr. J. Kenneth McDonald, for review. Upon review of Pfeiffer's work, McDonald determined that Pfeiffer's account of the agency's internal investigation "had serious deficiencies." In particular, McDonald concluded that "Dr. Pfeiffer's account [was] an uncritical defense of the CIA officers who planned and executed the Bay of Pigs operation," and that it "offer[ed] a polemic of recriminations against CIA officers who later criticized the operation, and against those U.S. officials who Pfeiffer contends were responsible for its failure." McDonald informed Pfeiffer that the document would not be considered further and the volume never got beyond the first stage of the CIA review process.

Unfortunately, the U.S. District Court judge sided with the agency's efforts to keep Volume V of the report secret in perpetuity. In her ruling, Judge Gladys Kessler accepted the CIA's legal arguments that, because Volume V was a "draft" and never officially approved for inclusion in the agency's official history, it was exempt from declassification under the "deliberative process privilege" of the Freedom of Information Act despite having been written over 30 years ago. In her ruling, Judge Kessler stated, "disclosure of a draft history would risk public release of inaccurate historical information." She also cited the arguments of the CIA's current chief historian, David Robarge, that "disclosure of Volume V would have a chilling effect on CIA's current historians who would henceforth be inhibited from trying out innovative, unorthodox or unpopular interpretations in a draft manuscript."

The National Security Archive's brief presented three main arguments:

1. Volume V is not "predecisional" because the CIA never identified any policy, decision, or decisionmaking process related to the document. Pfeiffer's superior, McDonald, made it clear he never intended to publish it. In fact, Volume V "never got beyond the first stage of the CIA review process for historical studies." If the court adopts the CIA's logic then "all of an agency's draft documents automatically qualify as predecisional merely because they play a role in the document-creation process itself."

2. Volume V is not "deliberative" since disclosure of the document wouldn't reveal anything about the CIA's internal deliberations or its decisionmaking processes.

3. It has long been recognized by federal courts that the Exemption Five privilege is limited and erodes over time. For example, under the Presidential Records Act, a former president can only claim the Exemption Five privilege for 12 years after leaving office and the Federal Reserve, which sets monetary for the entire nation, releases transcripts of its meetings after five years. As the archive asserts, "The Agency offers no reason to think that greater deliberative protection is required for those who write about history than for those who make it."

The irony is that the Department of Justice's defense of the CIA's position runs counter to Attorney General Eric Holder's FOIA directive issued in 2009, which states, "an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption."

It also flies in the face of the White House's well-publicized commitment that the Obama administration would be the most open and transparent in history. On January 21, 2009, in one of his first official acts, President Obama issued a directive to all federal agencies on FOIA, saying, "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails." The president went on to say, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

Oral arguments in the case have not yet been scheduled.

Lee White is the executive director of the National Coalition for History.