By Harry Hammitt
The author is the publisher of Access Reports, a biweekly newsletter on US and Canadian FOI developments.
While disposing of most issues left outstanding in a series of lawsuits brought by University of Virginia graduate student Katelyn Sack, Judge Emmet Sullivan has inadvertently exposed the difficulty in making FOIA amendments designed to be favorable to requesters work in practice.
By limiting the agency’s obligation to clarify a request it finds to be overly burdensome, a feature of the 1996 EFOIA Amendments, Sullivan has allowed agencies to essentially dismiss requests simply because their interpretation made the request too open- ended.
Sack made a series of requests to government agencies for records pertaining to their use of polygraphs. One request to the CIA asked for “documents pertaining in whole or in part (all years, all classifications) to a list of closed Inspector General investigations and reports.” The agency sent a generic response declining to respond to her request, telling her that “because of the breadth of your request, and the way in which our records systems are configured, the Agency cannot conduct a reasonable search for information responsive to your request.” The response encouraged her to narrow the scope of the request by, for example, limiting the time frame, but offered no specifics about why the agency concluded her request was too broad. Although Sack failed to appeal the agency’s decision, she still challenged the agency’s action by arguing that its decision constituted a failure to search.
Examining the parties’ arguments, Sullivan first pointed out that the CIA’s position was that “the language ‘pertaining in whole or in part’ was undefined and caused the request to cover any document that is arguably relevant to any list of closed Inspector General investigations and reports, even if the document did not reference such a list.” By contrast, Sack claimed her request was considerably more narrow and that she asked only for a list of closed Inspector General investigations and reports and that information would likely be located in only a few offices.
Sullivan agreed with the agency, noting that “although plaintiff’s request clearly encompasses all lists of closed Inspector General investigations and reports and any documents specifically referencing those lists, it would also cover documents that otherwise relate to those lists.” He explained that “the problem for an agency responding to such a request is that the lack of clarity leaves the agency to guess at the plaintiff’s intent. . .Indeed, any document related to a closed investigation may arguably pertain, at least ‘in part,’ to a subsequently generated list of investigations. Given this breadth, the CIA could not assume that responsive documents would be located only in [a few places]. That would be a starting point, but the CIA would also have needed to devise a method to search for records that do not mention a list of closed Inspector General investigations and reports, but still somehow pertain to such a list. This borders on the ‘all-encompassing fishing expedition’ on which a FOIA requester cannot embark.” He added that “this problem is especially acute because the CIA’s record-keeping systems do not permit it to ‘identify records that do not necessarily reference a document, but which may bear some relation to it’” and observed that “here, ‘the breadth of plaintiff’s request is not compatible with the CIA’s document retrieval system, and plaintiff must deal with that system as it is.’”
Sullivan acknowledged that Sack had ultimately clarified her request but that she did so too late. “Faced with the task of guessing at plaintiff’s intent regarding what might ‘pertain’ to any list of closed Inspector General reports and investigations, the CIA followed a reasonable path: it sought additional guidance from the requester and, when none was provided, closed the file.”
While outcomes like this happen all the time, they underscore how discouraging and unenlightening such responses can be to requesters. A built-in disadvantage to FOIA requesters is that most requesters are interested in records pertaining to a subject, but don’t know much about how the agency’s records are compiled or maintained. To try to capture the greatest amount of responsive information, requesters frequently include expansive descriptions to prevent the agency from unduly narrowing its interpretation of the request. It certainly isn’t surprising that many such requests seem overly broad, but Section (6)(B)(ii) instructs agencies to give requesters an opportunity to limit the scope of the request and to make available its FOIA Public Liaison [added by the 2007 OPEN Government Act amendments] to “assist in the resolution of any disputes between the requester and the agency.” Certainly the underlying intent for such a provision is to force the agency and the requester to clarify requests and, if possible, to narrow them. But by rejecting requests with nothing more than a generic explanation, the agency probably skirts the requirements of the provision without providing much clarification. In this case, if the CIA indeed was worried about thepotentially untethered nature of Sack’s request, the best outcome for both parties would have been for the CIA to explain its concerns and offer some alternative rather than rejecting the request without further consideration. In a footnote, Sullivan indicated that during the litigation, the CIA did search for a list and did not find one.
The rest of Sack’s case involved whether the CIA, the DIA, and the FBI had properly withheld records pertaining to their polygraph programs under Exemption 1 (national security), Exemption 3 (other statutes) and Exemption 7(E) (investigative methods and techniques). Sullivan found that Section 102A(i)(1) of the National Security Act protected many of the records claimed by both the CIA and the DIA. But he became the third district court judge in the D.C. Circuit to find that Section 6 of the CIA Act, protecting information about the functions of CIA personnel, covered only personnel and not the functions of the agency itself. Sullivan upheld the use of Exemption 7(E) to protect DIA polygraph training materials. Sack argued that some of the materials pertained to practices already adopted by the agency, but Sullivan indicated that “even if some of the findings have been used to improve polygraph practices, ‘harm would be caused to the overall process were it to be disclosed precisely which. . .vulnerabilities have been suitably addressed and which remain a critical task.’ These statements are sufficient to meet the agency’s burden of showing that release of the information could lead to circumvention of current law-enforcement techniques.” (Katelyn Sack v. Central Intelligence Agency, Civil Action No. 12-244 (EGS), U.S. District Court for the District of Columbia, July 10)
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