CIA Wins 2006 "Rosemary Award" for Worst Freedom of Information Performance by a Federal Agency





The Central Intelligence Agency has won the second annual Rosemary Award, recognizing the worst performance by a federal agency in complying with the Freedom of Information Act. The Award is named after President Nixon's secretary Rosemary Woods and the backwards-leaning stretch which she testified resulted in her erasing eighteen-and-a-half minutes from a key Watergate conversation on the White House tapes.

National Security Archive director Thomas Blanton announced today that this year's Rosemary goes to the Central Intelligence Agency, for what he called "the most dramatic one-year drop-off in professionalism and responsiveness to the public we have seen in 20 years of monitoring federal government compliance with the freedom of information law."

President Bush ordered agencies in his December 14, 2005 Executive Order to take a "citizen-centered and results-oriented approach" that "will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation." The CIA, under the direction of chief FOIA coordinator Scott Koch, has taken the opposite tack and has escalated its disputes and related litigation over the past year. Here are the CIA's performance markers that clinched the 2006 Rosemary:

1) CIA handles only 0.08% of the total number of FOIA requests received by the government, but has achieved 40% of the ten oldest still unanswered requests government-wide. CIA's oldest requests are so old they are eligible for drivers' licenses in most states.

2) After stalling for 15 years a request from a Lancaster, Pennsylvania newspaper for records on a convicted arms dealer with ties to the intelligence community (a former director of the National Security Agency had served on the dealer's board), CIA finally answered the request in 2005 with a "no records" response.

3) More creatively, CIA responded to a 2005 request for records on the relationship between Taliban leader Mullah Omar and Osama bin Ladin by claiming the Agency could "neither confirm or deny" the existence of any such documents. Hundreds of such documents have been released by other agencies, including transcripts of official conversations with Omar, and the 9/11 Commission report provides extensive detail on the relationship.

4) At the same time that CIA's chief information reviewer, Terry Buroker, was swearing under penalty of perjury in federal court that not a word of a 40-year-old President's Daily Brief given by the CIA to President Johnson could be released without serious damage to current U.S. national security, Mr. Buroker cleared for release two such LBJ-era Briefs because they were in cable format instead of PDB letterhead (he didn't recognize them as PDBs). When Mr. Buroker actually reviewed their contents (which were innocuous), he released the documents, but when he saw letterhead, he claimed damage.

5) Beginning in August 2005, Mr. Koch reversed 15 years of CIA compliance with the FOI statute and began telling graduate students that they would have to pay search and review fees for any FOIA request they undertook for thesis or dissertation research, despite the law's clear provision that the "educational" category of requester would pay only photocopying fees. No doubt this will reduce Mr. Koch's workload by intimidating young scholars from filing requests in the first place, although some may well litigate the matter.

6) Also in August 2005, Mr. Koch reversed 15 years of CIA compliance with the unanimous 1989 D.C. Circuit Court of Appeals opinion that settled the search and review fee question for journalists, and began telling representatives of the news media that it was up to CIA to decide whether the subject of their requests was newsworthy; otherwise, they would pay too. CIA judged newsworthy only one out of 40 recent requests from the National Security Archive (which has won the Emmy and the George Polk Awards for its news judgment). No doubt this will lead to wasteful re-litigation of a settled issue.

Archive director Blanton commented, "Of course, such an extraordinarily dismal record of customer contempt can hardly be achieved by a single bureaucrat working alone." Mr. Koch will have to share the credit for this year's Rosemary for Worst Freedom of Information Performance by a Federal Agency with his boss, Edward Cohen, his legal counsel, Bruce Burke, and with information reviewer Terry Buroker. Each will receive a framed photograph of Rosemary Woods in the Stretch. The new CIA Chief FOIA Officer, Adolfo Tarasiuk, Jr., who was named in February 2006 as mandated by President Bush's Executive Order 13,392, is too new on the job to be able to claim any credit for CIA's bottom-dwelling performance, but he remains eligible to have his name added to next year's Rosemary assuming CIA's current trends continue.

The U.S. Air Force was the previous winner of the Rosemary in 2005 for outstandingly bad FOIA performance, after it apparently lost (or threw away) dozens of FOIA requests dating back 18 years. But a lawsuit by the National Security Archive with pro bono representation by the law firm of James & Hoffman prompted the Air Force to launch a major "FOIA Get Well" program, hire new senior staff, reach out to requesters and to other agencies for best practices, and begin to clean up its backlog. On the way up, the Air Force passed the CIA on the way down.



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