CIA Claims the Right to Decide What is News





The National Security Archive today filed suit in the United States District Court for the District of Columbia against the Central Intelligence Agency (CIA), challenging the Agency's recent practice of charging Freedom of Information Act (FOIA) fees to journalists pursuing news. The FOIA says that "representatives of the news media" can be charged only copying fees since they help to carry out the mission of the law by disseminating government information; but the CIA last year began claiming authority to assess additional fees if the Agency decides any journalist's request is not newsworthy enough. In adopting this new practice, the CIA reversed its prior 15-year practice of presumptively waiving additional fees for news media representatives, including the National Security Archive.

"The CIA takes the position that it should decide what is 'news' instead of the reporters and editors who research and publish the stories," explained attorney Patrick J. Carome of the law firm Wilmer Hale, who is representing the Archive. "If the CIA succeeds in exercising broad discretion to charge additional fees to journalists, despite the plain language of the law, then too often we will find out only what the government wants us to know."

"Today is the day that federal agencies are turning in their FOIA improvement plans under President Bush's Executive Order for a more 'citizen-centered' and 'results-oriented' FOIA system. But the CIA has taken the opposite approach, and is instead trying to close off use of the FOIA by journalists," commented Archive General Counsel Meredith Fuchs.

In 1989 the United States Court of Appeals for the District of Columbia Circuit recognized the Archive as a representative of the news media that cannot be charged for searches for records requested under the FOIA. The next year, the United States District Court for the District of Columbia held the CIA "must treat plaintiff as a 'representative of the news media' within the meaning of" the FOIA. For over 15 years, the CIA, like other federal agencies receiving FOIA requests from the Archive, abided by these decisions. Since these decisions, the Archive's news media activity has expanded dramatically, and its journalistic work has received numerous awards, including most recently the 2005 Emmy Award for Outstanding Achievement in News and Documentary Research.

Suddenly, in October 2005, the CIA changed its practice and began to require the Archive to meet a new test for what information qualifies as "news." The CIA demanded that the Archive show that its requests for records meet several criteria that are not found in the FOIA itself, specifically, that the requests "concern current events," "interest the general public," and "enhance the public understanding of the operations and activities of the U.S. government."

Among the requests that the CIA determined did not concern "current events" were two requests for biographical documents relating to members of the Taliban in Afghanistan and documents regarding the development of U.S. policy in Afghanistan in the five months before President Carter authorized U.S. aid to the Mujahadeen opposition to the Soviet-backed Afghan regime. The CIA rejected the notion that information about U.S. knowledge regarding the Taliban and the rise of Muslim fundamentalism in Afghanistan could result in "news." And although the CIA determined that FOIA requests about NAFTA and illegal Mexican immigration could result in "news," it rejected the idea that President Clinton's 1993 meetings with President Salinas on the subject could result in "news."

"This policy is a clear attempt to prevent journalists from getting information out to the public," said Archive Director Thomas Blanton. "Given the timing - when the intelligence community is under serious scrutiny about its activities - this appears to be an effort to shut down the growth of a vibrant public debate in the print, broadcast and online communities."



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