Courts Says CIA Can Dump Classified Info To Members Of The Public And Still Deny They've Been Publicly Released

Journalist Adam Johnson's FOIA lawsuit against the CIA has been brought to a halt. Johnson sued the CIA for refusing to release classified documents it had previously voluntarily "leaked" to selected journalists. The CIA argued the documents were still classified and not subject to FOIA requests. Johnson argued the CIA had already released the documents to the public when it decided to release this classified info to journalists.

Back in February, it appeared the court was on Johnson's side. Responding to the government's motion to dismiss, the court pointed out the CIA couldn't waive FOIA exemptions when dumping docs to journalists and then seek to use them when other journalists asked for the same info.

There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose).

After another round of submissions by the plaintiff and the government, the judge has reached a final decision [PDF]. What once looked like a win for the FOIA requester has been turned into judicial support for selective disclosure. The CIA can waive and reinstate FOIA exemptions as often as it wants, so long as it only dumps documents to "trustworthy" journalists who won't make the waiver permanent by publishing them in full. (h/t Chris Geidner)

I fail to see why the fact that the information exists in electronic form on some private organization's server, which server can theoretically be hacked by an unauthorized user, should be treated any differently. If the only way that information can be seen by the general public is by stealing it from an authorized recipient, logic dictates that the information is not available to the general public- it is not "in the public domain." Plaintiff and Amici make a good deal out of the fact that the newspapers' servers are not secure servers, but I do not believe that the security level of a sending or receiving server makes the slightest difference to the analysis.

So Plaintiff fails because he is unable to demonstrate that the information he seeks resides today in the public domain; assuming, for purposes of argument, that the CIA' s decision to email the information to the reporters placed it there.

There is another reason why one cannot conclude that these particular emails are in the public domain. Even if there were a copy of the emails in the files of Mr. Shane or Mr. Ignatius or Ms. Gorman, or even if the reporter-recipients could still readily call up the full text on their computers, there is no evidence in the record that any member of the public could walk into the offices of the Times or the WaPo or the WSJ and demand to see a copy. For that matter, there is no evidence that anyone could obtain the information via service of a subpoena on the reporter-recipients. This court would be shocked if the three eminent news organizations whose employees received these emails did not fight tooth and nail against any effort to make them public; and as I understand matters, the law is on their side. If that were not so, Johnson would not be asking the CIA to disclose the redacted information; he would be suing the New York Times, the Washington Post and the Wall Street Journal.

The court notes the judicial system has bent over backwards to insulate national security agencies from FOIA requesters and these agencies' own careless handling of classified material. Agencies that regularly participate in selective leaking can still keep leaked documents out of FOIA requesters' hands so long as the leak recipients haven't published the documents in full. In this case, Johnson had redacted copies of the emails sent to journalists and was seeking to have the redactions stripped away. He had already cleared the high hurdle of knowing exactly what documents had been leaked to journalists. But despite clearing a nearly impossible hurdle, the court, while sympathetic, notes judicial precedent allows the CIA to have it both ways: release info to members of the public while claiming the information was never released publicly.

When grappling with the possibility of waiver via selective and limited disclosure of classified information, courts clearly outlined a way for Government officials dealing with national security and foreign affairs material to have their cake and eat it, too. They could make disclosures to third parties when the Director deemed it necessary to protect intelligence sources and methods, and they could do so without waiving their right to invoke relevant FOIA exemptions, as long as they did so in a way that created no permanent record outside the confines of the agency of exactly what was disclosed (exactly meaning, literally, "in haec verba "). In that way, the courts could never be entirely sure that whatever "public" record did exist (the notes taken by the people who were briefly shown the records at issue in Muslim Advocates, for example) was the "specific information" that had been disclosed previously. This bit of sophistry allowed the courts deny FOIA requests on the basis discussed in Wilson v. CIA, 5 86 F .3d 171, 186 (2d Cir. 2009).

It all comes down to one thing: the journalists who received the CIA's leaks never published the documents in full. Because of this -- despite there being copies of unredacted classified info residing on certain newsroom servers -- the CIA can claim this was not a public release and keep its redactions in place. The court's refusal to hold the government to a higher standard when it invokes national security claims has resulted in this illogical conclusion: what's been made public is not public info if certain caveats apply. To celebrate this ridiculous victory for government opacity, the journalists who received these documents should publish them in full. As the court notes, they'd be well within their legal rights to do so. But that would mean they wouldn't be trusted with selective leaks in the future, so it's unlikely these members of the public will undo the damage done by 40 years of NATSEC jurisprudence.