See CIA wins secrecy for Bay of Pigs history
The Central Intelligence
Agency has the right to keep secret a draft history of its involvement with the
ill-fated Bay of Pigs invasion more than five decades ago, a split federal
appeals court panel ruled Tuesday.
The U.S. Court of Appeals
for the D.C. Circuit ruled, 2-1, that the CIA can withhold the volume about the
1961 operation against Cuba in its entirety under a Freedom of Information Act
exemption that protects government agencies' interest in receiving candid
advice.
The National Security
Archive, which collects government records on foreign policy and security
issues, requested the history known as "Volume V" in 2005.
"The FOIA requester
points out that there was no final CIA history that arose out of or corresponded
to Volume V. That is true, but we do not see the relevance of the point. There
may be no final agency document because a draft died on the vine. But the draft
is still a draft and thus still predecisional and deliberative,"Judge
Brett Kavanaugh wrote, joined by Senior Judge Stephen Williams.
"The writer does not
know at the time of writing whether the draft will evolve into a final
document. 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," added Kavanaugh, who
worked in the White House counsel's office under President George W. Bush.
Judge Judith Rogers
dissented, arguing that the CIA had not demonstrated how the release of the
historical volume would disrupt the agency's decision-making process. She also
questioned the justification for withholding the history wholesale when FOIA
requires that agencies release non-exempt portions of documents, including in
most cases facts contained in a recommendation or proposal.
"Designation of a
document as a draft, however, 'does not end the inquiry,'" Rogers wrote.
"It is one thing to conclude that disclosure of a draft could
“stifle...creative thinking and candid exchange of ideas...' where it is
possible to identify editorial judgments by comparing the draft and the final
version, and quite another to conclude stifling could occur where there is no
final version and the agency has identified the requested document as
reflecting no more than the individual staff historian’s view."
Rogers also said putting
the whole volume off limits was at odds with the central purpose of FOIA.
"Given the post-1987 public releases of the other volumes of the
“unfinished” History, and because 'disclosure, not secrecy, is the dominant
objective of the Act...' the agency’s present reliance on a categorical
approach for withholding the draft of Volume V under Exemption 5 does not
satisfy the agency’s burden under the FOIA," she wrote.
Kavanaugh's opinion
(posted here)
also explicitly rejects the idea that the deliberative process privilege erodes
over time. Many transparency advocates contend that it should expire after some
interval, perhaps 12 years, and are urging legislation to make that explicit in
the law.
National Security Archive
Executive Director Tom Blanton said the majority opinion would allow the
deliberative process exemption to swallow up most of the benefit of the Freedom
of Information Act.
"This deicison would
put off limits half of the contents of the National Archives. This decision
gives total discretion to every bureaucrat to withhold anything they
want," Blanton complained in an interview. "It turns it into a burqa
for bureaucratic obfuscation."
The Archive could seek an
en banc rehearing of the case or petition the Supreme Court to consider the
issue, but Blanton had no immediate word on what option his group would pursue.
The D.C. Circuit rarely grants en banc reviews. But chances of such a rehearing
in this case could be better than usual because of the dissent and the fact
that Williams, as a senior judge, would not vote on whether to grant an en banc
review. (He could join the circuit's active appeals judges on any en banc
court.)
The treatment of draft
documents in the FOIA process has long been a contentious issue among
transparency proponents. Soon after the Obama Administration took office, the
Justice Department issued guidance saying drafts shouldn't be withheld under
FOIA on that basis alone. However, critics say that the routine withholding of
drafts has continued.
"Such records might
be properly withheld under Exemption 5, but that should not be the end of the
review. Rather, the content of that particular draft and that particular
memorandum should be reviewed and a determination made as to whether the agency
reasonably foresees that disclosing that particular document, given its age,
content, and character, would harm an interest protected by Exemption 5" the DOJ guidance
said. "In making these determinations, agencies should keep
in mind that mere 'speculative or abstract fears' are not a sufficient basis
for withholding. Instead, the agency must reasonably foresee that disclosure
would cause harm. Moreover, agencies must be mindful of the President’s
directive that in the face of doubt, openness prevails."
Kavanaugh was appointed by
Bush, Williams by President Ronald Reagan, and Rogers by President Bill
Clinton.
CORRECTION (Tuesday, 2:38
P.M.): This post has been corrected to indicate that Williams would be eligible
to sit on an en banc panel, though not to vote on whether to convene an en banc
court.
UPDATE (Tuesday, 3:00
P.M.): This post has been updated with comment from Blanton.
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