DC Appeals Court Says CIA Can Continue To Withhold 35-Year-Old Memo Already Published By Another Gov’t Agency

Certain government agencies are of the opinion that records requesters shouldn't even be able to pry the documents they're seeking from their cold, dead fingers. Long after anyone could be affected and long after the people who've created the documents have passed on to the Great Bureaucracy in the Sky, agencies are still refusing to relinquish paperwork that's long past its (and its creators') expiration date.

The CIA has been battling a FOIA request in court, using the unlimited amount of time and money it has at its disposal. At the center of the battle is a single memo that was written in 1989, shortly after the fall of the Berlin Wall and the eventual collapse of the USSR. Somehow, this document is too sensitive to be released to the public even though it has already been (mostly) released to the public. (h/t Short Circuit)

Here's the background on the document, as recounted by the DC Circuit Court of Appeals in its decision [PDF]:

In 1983, during the Cold War, Leonard H. Perroots, then an Assistant Chief of Staff for Intelligence in the United States Air Forces in Europe, allegedly recommended a course of action to his Commander in response to an elevated alert status demonstrated by the military forces of the Union of Soviet Socialist Republics (Soviet Union"), which helped avert a nuclear crisis. Subsequently, in January 1989, Lieutenant General Perroots wrote an End of Tour Report Addendum (Perroots Memo") to detail the chain of events" from 1983 to help the U.S. Intelligence Community learn lessons as relates to our [Indications and Warning] capability and exercise planning."

Thirty-two years later, the National Security Archive (which is not a government entity, despite its pretty official-sounding name) sent the CIA an FOIA request for the Perroots' 1989 memo. The CIA refused to hand over the memo itself, but gave the National Security Archive the memo's cover letter, which did not even come close to fulfilling the request, much less the Archive's desire to obtain the memo. The Archive sued the CIA, leading to this appeal.

But between the creation of the memo (1989) and the Archive's request and ensuing litigation (2021), the CIA made the Archive aware of the existence of this document by pretty much publishing the memo in full.

In February 2021, the United States Department of State (DOS") published a transcribed version of the Perroots Memo in a volume of the Foreign Relations of the United States (FRUS") series documenting 1981-1988.

In order to engage in this publication, the State Department needed to get it declassified by the CIA. Those are the rules, and by the rules," I mean federal law. The State Department published the transcription, accompanied by a citation to its CIA source, as well as a written thank you" to CIA staff for assisting in the declassification review.

The obvious point of the Archive's request was to compare the transcription published by the State Department with the original memo. There may have been zero difference between the two. But we'll perhaps never know because the CIA (the agency that apparently assisted the State Dept. with a declassification review) claims the document mostly made public more than 32 years after it was written is still far too sensitive to be turned over to the National Security Archive.

You would think the presumption of disclosure, the prior publication of the declassified transcription, and the age of the document itself would weigh in favor of the Archive. But you'd be wrong. Some secrets get to remain secrets forever, even if they're (1) barely secret, (2) old enough to start worrying about 401(k) contributions, and (3) of significant historical interest.

The lower court took a look at the Archive's case and the CIA's counterarguments and decided to give the government the benefit of the doubt. Nothing has improved by moving up the judicial ladder. The CIA will get to keep its secrets even if it's extremely improbable there's anything in there of national security value.

While the DC Appeals Court agrees the Archive suffered a concrete injury" when the CIA refused to release the original memo, it says the transparency-focused entity will just have to walk it off. It says the official acknowledgement of the document doesn't prevent the CIA from using FOIA exemptions related to executive orders to refuse to release it. Nor does its apparent cooperation with the State Department in the release of the memo transcription change the FOIA equation.

According to its own previous rulings (which have been largely shaped by litigation involving agencies like the CIA due to the DC Circuit being the most common forum for federal entity targeting FOIA lawsuits), the government can both make a document public and refuse to release pretty much the same document when hit with a FOIA request.

As we have emphasized in our precedent, the mere public disclosure of information does not eliminate potential risks posed by further disclosure to national security interests-and cannot overcome an otherwise valid FOIA exemption.

Supposedly, there are still some secrets in this mostly public document. The National Security Archive doesn't know what those might be. Neither does the general public. We just have to take the court's word for it, along with the assertions made by the CIA directly to the judge in the lower court, which weren't even about the presence of any sensitive info:

We reject these contentions because the record, as observed by the district court, contains classified, supplemental, ex parte, and in camera declarations which establish that the CIA was not involved in the disclosure of the Perroots Memo.

That's it. That's all the CIA did. It told the lower court it did not actually help the State Department with a declassification review of the Perroots Memo. Because it (allegedly) did not assist in declassification, it could still consider the memo classified" and avail itself of multiple FOIA exemptions. The fact that the CIA did nothing to prevent the State Department from publishing a transcription of the memo suggests it had nothing it needed to keep the public from seeing. But when asked for the same document, it played hardball and managed to obtain a ruling saying it can continue to blow off future requests for this memo in seeming perpetuity.

This is a ridiculous outcome. The only way this can be overturned is if the National Security Archive can convince the Supreme Court that's something worth doing. Considering there's only a single memo at stake here, it seems unlikely to be something the nation's top court would be interested in resolving. As it stands now, the CIA is free to invoke FOIA exemptions to withhold documents that are not only decades old, but have been released publicly in one form or another previously. That's a big win for completely pointless opacity, which seems to be the kind of opacity national security related agencies tend to prefer.