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CIA not required to disclose torture report



By Jordan Crews

A Congressional Committee’s 6,000-plus page study on the detention and interrogation program formerly run by the CIA is a Congressional record not subject to disclosure under the Freedom of Information Act (FOIA), the federal court of appeals in D.C. ruled last month.

In 2009, the Senate Select Committee on Intelligence began conducting a comprehensive review of the CIA’s former detention and interrogation program. In a June 2009 letter, the Senate Committee specified that the report and any notes, documents, drafts, and final recommendations were Congressional records rather than agency records subject to disclosure under the FOIA.

In 2014, after completing its review, the Committee produced the report, titled “Committee Study of the CIA’s Detention and Interrogation Program,” which included a 6,000 page investigative report and a 500-plus page executive summary. The Committee transmitted copies of the Full Report and executive summary to the president and officials at the CIA, Department of Defense, Department of Justice, and Department of State (defendants). The executive summary, but not the Full Report, was made available to the public. The Committee also made clear that it had full discretion to decide if and when it would release the full report to the public.

Why not release the full report
The American Civil Liberties Union (ACLU) filed FOIA requests with the government seeking disclosure of the Full Report. The requests were denied on the ground that the Full Report is a “congressionally generated and controlled document” that is not subject to disclosure under the FOIA. The ACLU filed suit against the government, asking a federal district court to compel disclosure of the report. The district court refused to do so and dismissed the case. ACLU appealed, arguing that the report was not a congressional record but an agency record subject to FOIA disclosure because the Senate Committee relinquished control over the Full Report when it sent the report to the president and agency officials.

Subject to certain exceptions, the FOIA requires federal agencies to make agency records available to the public upon reasonable request. The FOIA allows federal district courts “to order the production of any agency records improperly withheld from the complainant.” Congress is not an agency; thus, Congressional documents are not subject to the FOIA’s disclosure requirements. The term “agency records” means those documents that an agency both (1) creates or obtains and (2) controls at the time the FOIA request is made. When an agency possesses a document that it has obtained from Congress, the determination of whether that document is an agency record for purposes of the FOIA “turns on whether Congress manifested a clear intent to control the document.”

Full Report is a Congressional document 
The issue before the court of appeals was whether the Full Report became an “agency record” subject to disclosure under the FOIA when Congress transmitted it to the president and agency officials. In particular, the court had to determine whether the Senate Committee continued to “control” the Full Report once copies of the report were transmitted to the president and agency officials.

The court first took note of the language in the June 2009 letter, in which the Senate Committee made clear that any “notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members . . . remain Congressional records in their entirety and disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee.” The Full Report qualifies as a “final . . . report.” Thus, because the language of the letter clearly included the Full Report, the court found that the Senate Committee, in no uncertain terms, intended to control the Full Report.

Nevertheless, the ACLU argued that the transmittal of the final version of the report to the president and agency officials in December 2014 indicated Congress’s intent to abdicate control over the full report. In 2012, the Senate Committee sent a draft of the initial version of the Full Report to the president and agency officials for comments and possible edits. The Committee’s transmission made clear that it retained the discretion to accept or reject any proposed changes and emphasized that the Committee alone would “consider how to handle any public release of the report.” 

However, when the Committee transmitted the final version of the Full Report in December 2014, it did so without any similar limitations. According to the ACLU, this was proof that Congress intended to abdicate control of the Full Report. The court disagreed, noting that Congress, when transmitting documents to an agency, is not required to give “contemporaneous instructions preserving any previous expressions of intent to control the documents in order to retain control over the documents.” 

The court found that the December 2014 letter (which did not contain explicit limitations) did not override the Senate Committee’s clear intent to maintain control of the Full Report expressed in the June 2009 letter. Accordingly, the court held that the Full Report was a Congressional document not subject to disclosure under the FOIA.




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