The Ninth Circuit Court of Appeals this week held that the disclosure under the Freedom of Information Act of two Presidential Daily Briefs written for President Lyndon B. Johnson in the 1960s could “reveal protected intelligence sources and methods.” The Court rejected, however, the Central Intelligence Agency’s “attempt to create a per se status exemption for PDBs.”

In a lawsuit brought by Professor Larry Berman, a professor of Political Science at U.C. Davis and the author of Perfect Spy: The Extraordinary Double Life of Pham Xuan An, Time Magazine Reporter & Vietnamese Communist Agent (Smithsonian-Harper Collins 2007), the Court concluded that revelation of the two 40-year-old PDBs could hinder the CIA’s current efforts to recruit sources. Nonetheless, the Court noted that the CIA’s assertions in that regard would become less plausible with the passage of time. The Court further made clear that PDBs are not “categorically exempt from FOIA.”

The Court also rejected a novel argument put forth by the CIA that the well documented practice of briefing the President itself is an intelligence method that would permit all PDBs to be withheld in whole. Instead, the Court reaffirmed that the CIA has an obligation to “provide a specific justification that explains why the particular document requested” fits within the exemption.

“While we are disappointed that the Court did not order disclosure of the two PDBs, because we suspect their content is innocuous, at least the CIA must end its practice of categorically refusing to release all PDBs,” commented National Security Archive General Counsel Meredith Fuchs. “Our goal in this litigation was to force the agency to conduct a genuine review and assess the true sensitivity of each document. We hope the Agency will take the Court’s analysis to heart and do the right thing in the future.”

Professor Berman was represented jointly by the Archive and by Thomas R. Burke and Duffy Carolan of the law firm Davis Wright Tremaine LLP in San Francisco, CA.