Initial Request

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0005460181
• Release Decision: IPPUB U
• Document Page Count: 3
• Document Creation Date: June 24, 2015
• Document Release Date: July 30, 2010
• Case Number: F-2010-00667
• Publication Date: October 9, 2009

~. 0/O c20
NATIONAL SECURI T-Y COUNSELORS
1200 SOUTH COURTHOUSE ROAD
SUITE l2L
ARLINGTON, VA 22204
TELEPHONE: [phone]
FACSIMILE: [phone]
KFLMCCI.ANAHAN,ESQ., E`iECUTIVEDIRECTOR
EMAIL: [e-mail]
Delores J\4. Nelson
Information and Privacy Coordinator
Central Intelligence Agency
Washing on, DC 20505
Re: FOIA Request-State Secrets and Executive Prioilc e Dwlarations
Dear Ms. Nelson:
APPROVED FOR RELEASED
DATE: 06-16-2010
This is a request on behalf of National Security Counselors ("NSC") under the Freedom of
Information Act, 5 U.S.C. ? 552, et seq., for copies of any and all declarations or affidavits filed by the
Director (or his designee) of the Central Intelligence Agency ("CIA") in the following lawsuits
wherein the state secrets or executive privilege was invoked:
1. Heine v. Rims, 261 F. Supp. 570 (D-Mil. 1966) or its progeny: 399 F.2d 785 (4th Cir,
1968)
305 F
Saa
816
,
.
pp.
(D. Ohd. 1969), 432 F.2a1 1007 (4th Or. Id, 1970);
2. Malkin v. Helms, Civil Action No. 75-1773 (I).D.C,), 690 F.2d 977 (D.C. fair. 1
and
3. Foster v. United States, 12 Cl CL 492 (1987)
Please note that the listed case citations are for reference purposes only to assist with identification of the
relevant lawsuit and files, and is not intended to be relied upon for the specific proceeding in which the
declaration or affidavit was filed (i.e., it may have been filed in an earlier proceeding in the noted
lawsuit).
When processing this request, please note that the D.C. Circuit has previously held that agencies
have a duty to construe the subject material of FOIA requests liberally to ensure responsive records are
not overlooked. See Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890
(D.C. Cit. 1995). Furthermore, in line with the guidance issued by the Department of Justice ("DOJ") on
9 September 2008 to all federal agencies with records subject to FOIA, agency records that are currently
in the possession of a U.S. Government contractor for purposes of records management remain subject to
FOIA. Please ensure that your search complies with this clarification on the effect of Section 9 of the
OPEN Government Act of 2007 of the definition of a "record" for purposes of FOIA. In addition, the
CIA should not interpret this request to exclude correspondence sent to outside third parties. Please also
consider this letter an affirmative rejection of any limitation of your search to CIA-originated records.
Therefore, in conclusion, the CIA is hereby instructed to interpret the scope of this request in the
most liberal manner possible short of an interpretation that would lead to a conclusion that the request
does not reasonably describe the records sought. If, even given these restrictions, the CIA still determines
that this request does not reasonably describe the records sought, it is instructed to contact NSC pursuant
 2609-10-08 06:35:21 (GMT) Nat Sec. Counselors From: Kel McClanahan
to 32 C.F.R. ? 1900.12(c) to discuss reformulation of the request before rejecting the request as
overbroad, vague, or unduly burdensome.
If you deny all or part of this request, please cite the specific exemptions you believe justify your
refusal to release the information or permit the review and notify us of your appeal procedures available
under the law. In excising material, please "black out" rather than "white out" or "cut out." In addition,
we draw your attention to President Obama's 21 January 2009 Memorandum for the Heads of Executive
Departments and.4gencies, directing federal agencies to adopt a presumption in favor of disclosure and
stating that government information should not be kept confidential "merely because public officials
might be embarrassed by disclosure, because errors and failures might be revealed, or because of
speculative or abstract fears,"
We are hereby requesting a waiver of all fees in accordance with our status as a representative of
the news media. NSC is a non-profit organization under Virginia law, has the ability to disseminate
information on a wide scale, and intends to use information obtained through FOIA in original works.
According to 5 U.S.C. ? 552(a)(4)(A)(ii), codifying the ruling of Not'/ Securm 4rchive v. Dep't of
Defense, 880 F.2d 1381 (D.C. Cit. 1989),
the term `a representative of the news media' means any person or entity that gathers information
of potential interest to a segment of the public, uses its editorial skills to turn the raw materials
into a distinct work, and distributes that work to an audience.
NSC has clear intent to "publish[ ] or otherwise disseminate[ ] information to the public." Id. at 1386
(quoting the following legislative history: 1) "It is critical that the phrase 'representative of the news
media' be broadly interpreted if the act is to work as expected. .. , In fact, may person or organization
which regularly publishes or disseminates information to the public ... should qualify for waivers as a
representative of the news media. "' 132 Cong. Rec. S 14298 (daily ed. Sept. 30, 1986) (emphasis in
original quotation); 2) "A request by a reporter or other person affiliated with a newspaper, magazine,
television or radio station,, or other entity that is in the business of publishing or otherwise disseminating
information to the public qualifies under this provision." 132 Cong. Rec. H9463 (Oct. 8, 1986) .(emphasis
in original quotation)). Our website, where much of the information received through our FOIA requests
will be posted for all to review, can be accessed at-at py oleic ratsazt~lsL usIIi(;,s crfi In addition, we
also intend to use information obtained through FOIA in our own published opinion editorials, journal
articles, and the like. The records sought in this particular request will be used in a law review article
discussing efforts to reform the privilege. I personally have already published information received
through FOIA in this manner (Kel McClanahan, A Perception BasedModel for Comparing Intelligence
Communities, 25(2) AMER. INTELLIGENCE J. 46 (Winter 2007/2008) (includes material obtained through a
CIA FOIA request)). Therefore, in accordance with the Freedom of Information Act and relevant case
law, NSC should be considered a representative of the news media, Similarly, our request for a public
interest fee waiver should be granted, for the reasons elucidated below.
There can be no question that the information sought would contribute to the public's
understanding of government operations or activities and is in the public interest. The invocation of the
state secrets privilege, especially by the CIA, is of significant interest to the public. Congress has held
numerous hearings on the issue, and four bills have been authored in the last two sessions to legislatively
reform it. Most recently, Attorney General Holder has even issued new guidelines for invocation of it.
Never before have any of the declarations or affidavits submitted by an agency head been
released to the public. The copies that are sought after in this request led to the dismissal of the stated
lawsuits and the contents of the requested records contributed if not outright mandated that result. The
 release of this historic information would significantly contribute to the understanding of the information
provided by agencies, such as the CIA, to the courts when considering the state secrets privilege.
In addition, with respect to the specific requirement that NSC must demonstrate an expertise in
the subject area in order to satisfy, the fee waiver criterion that disclosure of the requested information
must contribute to the understanding of the public at large, one of NSC's core missions is to educate the
public on Legal issues relating to intelligence and national security. With a Board of Directors and a
Board of Advisors comprised of some of the most respected names in national security law, NSC's
collective expertise in this field is more than sufficient to satisfy this requirement. I personally have
worked for a national security law firm for two years, am nearing completion of an LLM in National
Security Law, and am currently the Associate Editor of the American Intelligence Journal.
The CIA is required by law to respond to this request within 20 working days. Failure to timely
comply may result in the filing of a civil action against your agency in United States District Court,
We request that any documents or records produced in response to this request be provided in
electronic (soft-copy) form wherever possible. Acceptable formats are pdf, .jpg, gif, _tif, Please provide
soft-copy records by email or on a CD if email is not feasible, However, NSC does not agree to pay an
additional fee to receive records on a CD, and in the instance that such a fee is required, NSC will accept
a paper copy of responsive records.
Your cooperation in this matter would be appreciated. If you wish to discuss this reques
do not hesitate to contact me.
Kel McClanahan
Executive Director