Politico – by Josh GersteinThe Central Intelligence Agency has the right to keep secret a draft history of its involvement with the ill-fated Bay of Pigs invasion more than five decades ago, a split federal appeals court panel ruled Tuesday.
The U.S. Court of Appeals for the D.C. Circuit ruled, 2-1, that the CIA can withhold the volume about the 1961 operation against Cuba in its entirety under a Freedom of Information Act exemption that protects government agencies’ interest in receiving candid advice.
The National Security Archive, which collects government records on foreign policy and security issues, requested the history known as “Volume V” in 2005.
“The FOIA requester points out that there was no final CIA history that arose out of or corresponded to Volume V. That is true, but we do not see the relevance of the point. There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still predecisional and deliberative,”Judge Brett Kavanaugh wrote, joined by Senior Judge Stephen Williams.
“The writer does not know at the time of writing whether the draft will evolve into a final document. But the writer needs to know at the time of writing that the privilege will apply and that the draft will remain confidential, in order for the writer to feel free to provide candid analysis,” added Kavanaugh, who worked in the White House counsel’s office under President George W. Bush.
Judge Judith Rogers dissented, arguing that the CIA had not demonstrated how the release of the historical volume would disrupt the agency’s decision-making process. She also questioned the justification for withholding the history wholesale when FOIA requires that agencies release non-exempt portions of documents, including in most cases facts contained in a recommendation or proposal.
“Designation of a document as a draft, however, ‘does not end the inquiry,'” Rogers wrote. “It is one thing to conclude that disclosure of a draft could “stifle…creative thinking and candid exchange of ideas…’ where it is possible to identify editorial judgments by comparing the draft and the final version, and quite another to conclude stifling could occur where there is no final version and the agency has identified the requested document as reflecting no more than the individual staff historian’s view.”
Rogers also said putting the whole volume off limits was at odds with the central purpose of FOIA. “Given the post-1987 public releases of the other volumes of the “unfinished” History, and because ‘disclosure, not secrecy, is the dominant objective of the Act…’ the agency’s present reliance on a categorical approach for withholding the draft of Volume V under Exemption 5 does not satisfy the agency’s burden under the FOIA,” she wrote.
Kavanaugh’s opinion (posted here) also explicitly rejects the idea that the deliberative process privilege erodes over time. Many transparency advocates contend that it should expire after some interval, perhaps 12 years, and are urging legislation to make that explicit in the law.
National Security Archive Executive Director Tom Blanton said the majority opinion would allow the deliberative process exemption to swallow up most of the benefit of the Freedom of Information Act.
“This deicison would put off limits half of the contents of the National Archives. This decision gives total discretion to every bureaucrat to withhold anything they want,” Blanton complained in an interview. “It turns it into a burqa for bureaucratic obfuscation.”
The Archive could seek an en banc rehearing of the case or petition the Supreme Court to consider the issue, but Blanton had no immediate word on what option his group would pursue. The D.C. Circuit rarely grants en banc reviews. But chances of such a rehearing in this case could be better than usual because of the dissent and the fact that Williams, as a senior judge, would not vote on whether to grant an en banc review. (He could join the circuit’s active appeals judges on any en banc court.)
The treatment of draft documents in the FOIA process has long been a contentious issue among transparency proponents. Soon after the Obama Administration took office, the Justice Department issued guidance saying drafts shouldn’t be withheld under FOIA on that basis alone. However, critics say that the routine withholding of drafts has continued.
“Such records might be properly withheld under Exemption 5, but that should not be the end of the review. Rather, the content of that particular draft and that particular memorandum should be reviewed and a determination made as to whether the agency reasonably foresees that disclosing that particular document, given its age, content, and character, would harm an interest protected by Exemption 5,” the DOJ guidance said. “In making these determinations, agencies should keep in mind that mere ‘speculative or abstract fears’ are not a sufficient basis for withholding. Instead, the agency must reasonably foresee that disclosure would cause harm. Moreover, agencies must be mindful of the President’s directive that in the face of doubt, openness prevails.”
Kavanaugh was appointed by Bush, Williams by President Ronald Reagan, and Rogers by President Bill Clinton.