Initial Request

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06185525
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 18
• Document Creation Date: July 11, 2023
• Document Release Date: February 17, 2022
• Case Number: F-2014-02028
• Publication Date: April 17, 2014

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LAW OFFICE OF JEFFREY L. LIGHT
1712 Eye St., NW, Suite 915
Washington, DC 20006
202-277-6213
[e-mail]
11 April 2014
Freedom of Information and Privacy Acts request:
To: Information and Privacy Coordinator
Central Intelligence Agency
Washington, DC 20505
This is a request for records under the Freedom of Information Act ("FOIA"), 5 U.S.C. � 552
and the Privacy Act, 5 U.S.C. � 552a. This request should be considered under both statutes
to maximize the release of records.
REQUESTER INFORMATION
I represent Mr. Jason Leopold and Mr. Ryan Noah Shapiro (hereinafter "Requesters") and
am submitting this FOIA request on their behalf. Although I am not the requester, I would
appreciate it if communications could be directed to me at the address above.
Requestor 1:
Name: Jason Leopold
Address
Email
Requestor 2:
Name: Ryan Noah Shapiro
Affiliation: Doctoral Candidate, Massachusetts Institute of Technology
Address:
Email:
Phone
Purpose of Request: Journalistic and scholarly research/Public dissemination of analysis
of requested disclosure.
BACKGROUND INFORMATION
This request relates to an ongoing dispute between the Central Intelligence Agency
(CIA) and the Senate Select Committee on Intelligence (SSCI) over the SSCI's review of the
CIA's former Detention and Interrogation Program.
(b)(6)
(b)(6)
(b)(6)
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The CIA and SSCI reached an agreement which would permit SSCI staffers to review CIA
documents at a secure CIA facility in Virginia. A written agreement or series of agreements
specified the parameters regarding the staffers' access to CIA documents.
The CIA has alleged that SKI staffers illegally removed a document known as the
Panetta Internal Review.
Senator Feinstein, Chair of the SSCI, has alleged that the CIA violated its written
agreement with the SSCI and possibly violated criminal laws by searching SSCI computers
located at the CIA facility in Virginia.
RECORDS SOUGHT
1. Requesters request a copy of all written agreements and correspondence between
the SSCI (including Senators on the committee, their staff, and committee staff) and
the CIA (or its agents, including contractors) which set forth the terms under which
SSCI staffers would be permitted to access CIA documents at the secure CIA facility
in Virginia. Your search should include, but not be limited to, the following systems
of records: Congressional Liaison Records and Office of the Director Action Center
Records.
2. Requesters request a copy of all records documenting any CIA investigation into the
search of SSCI's computers at the secure facility in Virginia, including any records
generated by the CIA's Inspector General in the course of any investigation; records
referring the incident(s) to the Department of Justice for investigation; and
correspondence between the SSCI (including Senators on the committee, their staff,
and committee staff) and the CIA (or its agents, including contractors) which discuss
the event. Your search should include, but not be limited to, the following systems of
records: Congressional Liaison Records; Office of the Director Action Center
Records; Inspector General Research Records; Inspector General Investigation and
Interview Records; Security Access Records; and Security Operations Records,
3. Requesters request a copy of all records documenting any CIA investigation into the
removal of the Panetta Review, including any records generated by the CIA's
Inspector General in the course of any investigation; records referring the
incident(s) to the Department of Justice for investigation; and correspondence
between the SSCI (including Senators on the committee, their staff, and committee
staff) and the CIA (or its agents, including contractors) which discuss the event.
Your search should include, but not be limited to, the following systems of records:
Congressional Liaison Records; Office of the Director Action Center Records;
Inspector General Research Records; Inspector General Investigation and Interview
Records; Security Access Records; and Security Operations Records.
4. Requesters request a copy of the contract, the request for proposal, proposal, bid
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solicitation, and bid for any CIA contractor responsible for reviewing records
relating to the CIA's former Detention and Interrogation Program before access was
provided to SSCI staff.
S. Requesters request a copy of any and all talking points (in draft and final form), and
any and all guidance issued to the CIA's Office of Public Affairs, about the ongoing
dispute between the Central Intelligence Agency (CIA) and the Senate Select
Committee on Intelligence (SSC1) over the SSCI's review of the CIA's former
Detention and Interrogation Program.
REQUEST FOR EXPEDITED PROCESSING
Under 32 C.F.R. 1900.34(c), a request is to be given expedited processing when "a
compelling need is established to the satisfaction of the Agency?' A compelling need is
deemed to exist "[w]hen the request is made by a person primarily engaged in
disseminating information and the information is relevant to a subject of public urgency
concerning an actual or alleged Federal government activity?' 32 C.F.R. 1900.34(c)(2).
Requesters are seeking expedited treatment for this request.
1. The requested information is relevant to a subject of public urgency concerning an
actual or alleged Federal government activity.
The requested information involves an actual Federal government activity --the CIA's
detention and interrogation program and the agency's interaction with its congressional
overseers who scrutinized this program- and there exists an urgent need to inform the
public about this activity. There is an urgent need for the information requested because
the records at issue may resolve possible questions about whether a constitutional crisis is
now at stake between the Senate Select Committee on Intelligence and the CIA.
In a dramatic speech on the Senate floor on March 11, 2014, Senate Select Committee on
Intelligence Chairwoman Dianne Feinstein in no uncertain terms accused the CIA of
obstructing the Senate committee's review of the CIA interrogation and detention program.
Senator Feinstein also said the search the CIA conducted of Senate investigators' computers
"may well have violated the separation of powers principle embodied in the United States
Constitution, including the speech and debate clause?' Further, she said the CIA's actions
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may have undermined the constitutional framework essential to effective congressional
oversight of intelligence activities or any other government function."
Senator Lindsey Graham characterized the CIA's actions as "Richard Nixon stuff" and
"dangerous to democracy and said "heads should roll" and "people should go to jail if it's
true." 2
House Minority Leader Nancy Pelosi said the CIA's behavior is in this dispute is a
"matter of great seriousness" and ought to be of great concern to everyone. She added that
when you take on the CIA "they come after you and don't always tell the truth." 3
Additionally, the urgency of this request is underscored by the fact that yet another
investigation directly connected to the dispute has been launched. On Thursday, March 20,
2014, Senate Majority Leader Harry Reid revealed that he has ordered the Senate's
sergeant-at-arms to investigate how Senate staffers obtained internal CIA records at the
center of the controversy that CIA Director John Brennan said was not authorized for
release to Congress. 4
Moreover, the declassification of the Senate study appears to be held up by the fact that
the Intelligence Committee is engaged in this dispute with the CIA. Currently, military
commissions are currently taking place at Guantanamo involving five 9/11 suspects,
including Khalid Sheikh Mohammed ("KSM"), the alleged mastermind of the 9/11 attacks,
and Abd al Rahim al Nashiri, the alleged mastermind of the LISS Cole bombing. Nashiri and
KSM were held in secret prisons operated by the CIA and were subjected to enhanced
interrogation techniques described in the Senate's report. Any mention of their treatment
while in custody of the CIA has been ruled to be off-limits by a military judge presiding over
the tribunals, thereby depriving the public from knowing whether their admissions to
alleged crimes were tainted by torture.5 The release of the records revolving around the
Senate controversy will help shed much needed light on what role the CIA has played in
keeping this Senate report under wraps and whether the controversy surrounding the issue
is connected to the military tribunals.
2. Requesters are persons primarily engaged in disseminating information
Jason Leopold is a full-time member of the news media as a contributor to Al Jazeera
America,6 an Editor at Large for the online publication, The Public Record,7 and a widely
1 http://wwwleinsteimsenate.gov/public/index.cfm/press-releases?1D=db84e844-01bb-4eb6-
b318-31486374a895
2 http://www.star-telegram.com/2014/03/12/5644148/cia-vs-senate-is-a-real-mess-maybe.html
3 http://www.theatlantic.com/politics/archive/2014/03/nancy-pelosi-when-legislators-take-on-
the-cia-they-come-after-you/284524/
4 http://www.polifico.com/story/2014/03/harry-reid-cia-charges-v-senate-absurd-104853.html
5 http://www.csmonitoccom/USA/justice/2012/1212/9-11-trial-Any-mention-of-torture-is-
classified-military-judge-rules
6 http://america.ahazeera.com/profilesMason-leopold.html
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published independent investigative reporter who has had his journalism published in
dozens of domestic and international publications, and he is a person primarily engaged in
disseminating information.
Ryan Shapiro is an ABD doctoral candidate in good standing at the Massachusetts Institute
of Technology. He is in the PhD program in History, Anthropology and Science, Technology
& Society (HASTS) in MIT's Department of Science, Technology & Society. His research
includes exploration of conflicts at the intersections of national security law enforcement,
surveillance, open government, and political dissent. He is a person primarily engaged in
analyzing and disseminating information. To date, Mr. Shapiro has presented scholarly and
popular lectures and talks pertaining to issues at the nexus of national security, social
movements, and open government at institutions including the Massachusetts Institute of
Technology the National Institutes of Health (NIH), the Kennedy School of Government at
Harvard University, the Max Planck Institute for the History of Science (Berlin), the
University of California, Santa Barbara, the National Press Club (Washington, DC), the
conference of the National Lawyers Guild, the History of Science Society the Society for the
Social History of Medicine, the Conference on Policy History, the American Society for
Environmental History, Boston University, University College Cork (Ireland), and Suffolk
University Law School. His upcoming scheduled speaking engagements for the month of
April 2014 alone include Harvard Law School, Yale Law School, the City University of New
York Law School, The College of William & Mary, The Base community center in Brooklyn,
NY, and Burning Books bookstore in Buffalo, NY.
Additionally, Mr. Shapiro's scholarly research and related commentary on issues pertaining
to the political functioning of national security, controversies involving access to
information, and the policing of dissent, has been featured in numerous national and
international media outlets. These outlets include, but are not limited to The Washington
Post, The Los Angeles Times, The Wall Street journal, The International Business Times, NPR,
BBC World Service, Agence France-Presse, Huffington Post, HuffPost Live, Salon, The Hill,
Mother Jones, Democracy Now!, The Daily Beast, The Houston Chronicle, The Public Record,
Fox Nation, MSN News, The Daily Mail, The Hollywood Reporter, Truth-Out, The Afro
American, Green Is the New Red, FireDogLake, PolicyMic, Vice News, Boing Boing, The Verge,
Tech Dirt, Freedom of the Press Foundation, and Al Jazeera America.
Further, Mr. Shapiro is currently collaborating with (co-requester) award-winning
journalist and author Jason Leopold on popular articles pertaining to issues of open
government, the policing of dissent, and national security, including articles pertaining
directly to the subjects of this FOIPA request.
7 www.pubrecord.org
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3. Certification pursuant to 32 C.ER. 1900.34(c)
re oin to be true knowled e and belief.
eopo n oa pro
INSTRUCTIONS REGARDING SEARCH
1. Instructions Regarding "Leads":
As required by the relevant case law, the CIA should follow any leads it discovers during the
conduct of its searches and perform additional searches when said leads indicate that
records may be located in another system. Failure to follow clear leads is a violation of
FOIA.
2. Request for Public Records:
Please search for any records even if they are already publicly available.
3. Request for Electronic and Paper/Manual Searches:
Requesters request that searches of all electronic and paper/manual indices, filing systems,
and locations for any and all records relating or referring to the subject of my request be
conducted. Requesters further request that the CIA conduct a search of its "soft files."
4. Request for Search of Filing Systems, Indices, and Locations:
Please search all of your indices, filing systems, and locations, including those Requesters
have not specified by name and those of which Requesters may not be aware.
5. Request regarding Photographs and other Visual Materials:
Requesters request that any photographs or other visual materials responsive to my
request be released to me in their original or comparable forms, quality, and resolution. For
a Requesters have authorized me to sign the document on their behalf as their legal
representative,
(b)(6)
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example, if a photograph was taken digitally, or if the CIA maintains a photograph digitally,
Requesters request disclosure of the original digital image file, not a reduced resolution
version of that image file nor a printout and scan of that image file. Likewise, if a
photograph was originally taken as a color photograph, Requesters request disclosure of
that photograph as a color image, not a black and white image. Please contact me for any
clarification on this point.
6. Request for Duplicate Pages:
Requesters request disclosure of any and all supposedly "duplicate" pages. Scholars analyze
records not only for the information available on any given page, but also for the
relationships between that information and information on pages surrounding it. As such,
though certain pages may have been previously released to us, the existence of those pages
within new context renders them functionally new pages. As such, the only way to properly
analyze released information is to analyze that information within its proper context.
Therefore, Requesters request disclosure of all "duplicate" pages.
7. Request for Search of Operational Files:
Requesters request that in conducting its search, the CIA include "operational files: as that
term is defined in 50 U.S.C. � 431(b). Our request concerns a specific subject matter of an
investigation by the Senate Select Committee on Intelligence, the Office of Inspector General
of the Central Intelligence Agency, and the Department of Justice, and therefore the CIA's
operational files encompassed within our request are not exempt from FOIA.
8. Request to Search Emails:
Please search for emails relating to the subject matter of our request.
9. Request for Search of Records Transferred to Other Agencies:
Requesters request that in conducting its search, the CIA disclose releasable records even if
they are available publicly through other sources outside the CIA, such as NARA.
10. Regarding Destroyed Records
If any records responsive or potentially responsive to our request have been destroyed, our
request includes, but is not limited to, any and all records relating or referring to the
destruction of those records. This includes, but is not limited to, any and all records relating
or referring to the events leading to the destruction of those records,
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INSTRUCTIONS REGARDING SCOPE AND BREADTH OF REQUESTS
Please interpret the scope of this request broadly. The CIA is 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.
EXEMPTIONS AND SEGREGABILITY
Requesters call your attention to President Obama's 21 January 2009 Memorandum
concerning the Freedom of Information Act, in which he states:
All agencies should adopt a presumption in favor of disclosure, in order to renew
their commitment to the principles embodied in MA [....] The presumption of
disclosure should be applied to all decisions involving FOIA.9
In the same Memorandum, President Obama added 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."
Finally, President Obama ordered that "The Freedom of Information Act should be
administered with a clear presumption: In the case of doubt, openness prevails."
Nonetheless, if any responsive record or portion thereof is claimed to be exempt from
production, FO1A/PA statutes provide that even if some of the requested material is
properly exempt from mandatory disclosure, all segregable portions must be released. If
documents are denied in part or in whole, please specify which exemption(s) is (are) claimed
for each passage or whole document denied. Please provide a complete itemized inventory
and a detailed factual justification of total or partial denial of documents. Specify the number
of pages in each document and the total number of pages pertaining to this request. For
"classified" material denied, please include the following information: the classification
(confidential, secret or top secret); identity of the classifier; date or event for automatic
declassification or classification review or downgrading; if applicable, identity of official
authorizing extension of automatic declassification or review past six years; and, if applicable,
the reason for extended classification beyond six years.
In excising material, please "black out" the material rather than "white out" or "cut out!'
Requesters expect, as provided by FOIA, that the remaining non-exempt portions of
documents will be released.
9 President Barack Obama, "Memorandum for the Beads of Executive Departments and Agencies,
Subject: Freedom of Information Act," 21 January 2009;

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Please release all pages regardless of the extent of excising, even if all that remains are the
stationery headings or administrative markings.
In addition, Requesters ask that your agency exercise its discretion to release records which
may be technically exempt, but where withholding serves no important public interest.
ADDITIONAL INSTRUCTIONS REGARDING REQUEST
Please produce all records with administrative markings and pagination included.
Please send a memo (copy to us) to the appropriate units in your office to assure that no
records related to this request are destroyed. Please advise of any destruction of records
and include the date of and authority for such destruction.
FORMAT
Requesters request that any releases stemming from this request be provided to me in
digital format (soft-copy) on a compact disk or other like media.
FEE CATEGORY AND REOUEST FOR A FEE WAIVER
Requesters are willing to pay any reasonable expenses associated with this request,
however, as the purpose of the requested disclosure is in full conformity with the statutory
requirements for a waiver of fees, Requesters formally request such a waiver. Requesters
request a waiver of all costs pursuant to 5 U.S.C. �552(a)(4)(A)(iii) ("Documents shall be
furnished without any charge ... if disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial interest of the
requester7). Disclosure in this case meets the statutory criteria, and a fee waiver would
fulfill Congress's legislative intent in amending FO1A. See Judicial Watch, Inc. v. Rossotti, 326
F.3d 1309, 1312 (D.C. Cir. 2003) ("Congress amended FOIA to ensure that it be 'liberally
construed in favor of waivers for noncommercial requesters:").
Under 32 C.F.R. 1900.13(b), "Records will be furnished without charge or at a reduced rate
whenever the Agency determines... (2) That it is in the public interest because it is likely
to contribute significantly to the public understanding of the operations or activities of the
United States Government and is not primarily in the commercial interest of the requester!'
Should our request for a fee waiver be denied, Requesters request that they be categorized
as members of the news media for fee purposes pursuant to 32 C.F.R. 1900.02(h)(3).
According to 5 U.S.C. � 552(a)(4)(A)(ii), which codified the ruling of Nat? Security Archive v.
Dep't of Defense, 880 F.2d 1381 (D.C. Cir. 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,
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and distributes that work to an audience. This is consistent with the definition provided in
32 C.P.A. 1900.02(h)(3)
As the legislative history of FOIA reveals, "It is critical that the phrase `representative of the
news media' be broadly interpreted if the act is to work as expected. ... In fact, any 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. 514298
(daily ed. Sept. 30, 1986) (emphasis in original quotation); and 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)). Therefore, in accordance with the Freedom of Information Act and
relevant case law, we, Jason Leopold and Ryan Shapiro, should be considered
representatives of the news media.
The CIA's regulations list six factors which the agency must consider in assessing whether a
requester is entitled to a fee waiver: "(i) Whether the subject of the request concerns the
operations or activities of the United States Government; and, if so, (ii) Whether the
disclosure of the requested documents is likely to contribute to an understanding of United
States Government operations or activities; and, if so, (iii) Whether the disclosure of the
requested documents will contribute to public understanding of United States Government
operations or activities; and, if so, (iv) Whether the disclosure of the requested documents
is likely to contribute significantly to public understanding of United States Government
operations and activities; and (v) Whether the requester has a commercial interest that
would be furthered by the requested disclosure; and, if so, (vi) Whether the disclosure is
primarily in the commercial interest of the requester." 32 C.ER 1900.13(b)(2). Because the
disclosure of the requested documents would contribute significantly to public
understanding of United States Government operations and activities and I do not have a
commercial interest in the requested disclosure, our request for a fee waiver must be
granted.
L DISCLOSURE OF THE REQUESTED RECORDS IS IN THE PUBLIC INTEREST BECAUSE
IT IS LIKELY TO CONTRIBUTE SIGNIFICANTLY TO THE PUBLIC UNDERSTANDING
OF THE OPERATIONS AND ACTIVITIES OF THE GOVERNMENT
A. The subject of the requested records concerns the operations and activities of the CIA
and broader government. The subject of the requested records concerns identifiable
operations and activities of the CIA and broader government, specifically whether the CIA
had violated an agreement in which the agency promised it would not monitor its
computers and whether the records at issue are truly "deliberative" and "pre-decisional" as
CIA Director John Brennan stated in a letter to Senator Dianne Feinstein in January 2014. lc
10 http://images.politico.com/globa1/2014/03/11/brennankrrereview.html
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B. The disclosure is likely to contribute to an understanding of government operations and
activities because the disclosable portions of the requested records will be meaningfully
informative about those operations and activities. The vast majority of disclosable
information is not already in the public domain, in either a duplicative or a substantially
identical form, and therefore the disclosure would add substantial new information to the
public's understanding of how the CIA and the Senate Intelligence Committee interacted
during the course of the committee's investigation into the agency's detention and
interrogation program and how the CIA viewed and reacted to congressional oversight.
The overwhelming preponderance of records Requesters need to conduct our study are in
the possession of the CIA and not in the public domain.
C. The disclosure of the requested records will contribute to the increased understanding
of a broad audience of persons interested in the subject, rather than merely our own
individual understanding.
As explained herein in more detail, the audience likely to be interested in the subject is
broad, and includes, historians of modern American government, politics, culture, and
national security; journalists reporting on American politics, government, national security,
and society; civil liberties attorneys; and the general public.
i) Requesters firmly intend to analyze the requested records in order to facilitate significant
expansion of public understanding of government operations. Requesters are well qualified
to perform this analysis.
I, Jason Leopold, spent three and a half years as lead investigative reporter of Truthout.org,
a nonprofit newsroom. I am currently an investigative journalist under contract with Al
Jazeera America. As a regular contributor to Al Jazeera America, I cover Guantanamo,
national security, counterterrorism, civil liberties, human rights and open government.
Additionally, I am editor-at-large for The Public Record. My reporting has previously
appeared in The Nation, The Wall Street Journal, The Financial Times, Salon, CBS
Marketwatch, The Los Angeles Times, and numerous other domestic and international
publications.
I, Ryan Shapiro, I am an ABD doctoral candidate in good standing at the Massachusetts
Institute of Technology. lam in my seventh year of the PhD program in History,
Anthropology, and Science, Technology, & Society (HASTS) in MIT's acclaimed Department
of Science, Technology, & Society My research explores conflicts at the intersections of
national security, law enforcement, open government, and political dissent
lam particularly interested in the political functioning of national security in controversies
involving access to information and political dissent. These issues are the core issues
present in the requested records.
I have deep research and analytical experience in a broad range of pertinent scholarly
disciplines and methodologies. Prior to my current position at MIT, I served as research
assistant for the Deputy Chief of the History of Medicine Division of the National Library of
Medicine at the National Institutes of Health (NIH) in Bethesda, MD, and also as the
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Assistant Director of Research for the Nuclear Studies Institute at American University in
Washington, DC.
I am extensively trained in Modern American History. I hold an MA in Modern American
History from American University, where I passed my MA qualifying exam in "Modern
American History" with distinction. Additionally, at MIT, one of my three PhD qualifying
exam fields in the HASTS doctoral program was "War, Science, & Society in 20th century
American History7 I have taught, lectured on, and assisted with teaching courses in Modern
American History at the Massachusetts Institute of Technology, American University, and
the University of California, Santa Barbara. For one example among many, in the Spring
2012 semester, I was the instructor for MIT's course, American History since 1865
(21H.102).
lam also extensively trained in the fields of History of Science, the History of Medicine,
Animal Studies, and Science, Technology; & Society. I have lectured and assisted with
teaching courses on environmental history, scientific and ethical conflicts involving national
security in the United States, bioethics, open government, and political dissent and the
state. I have particularly extensive training and expertise in the history of American social
movements, political dissent and repression in the United States, controversies over
freedom of information and open government, and controversies at the intersections of the
above and American national security
I have extensive experience researching and analyzing large volumes of documents
obtained through the Freedom of Information Act, including tens of thousands of pages
released to me by the FBI, the ATE NIH, USDA, the Department of the Army, the Department
of Defense, the Unites States Coast Guard, and the National Archives and Records
Administration.
My scholarly research has been funded by a host of elite academic and research institutions.
These institutions include the Massachusetts Institute of Technology, where I was granted a
Presidential Fellowship, as well as the University of California, American University, the
Mellon Fund, and the Social Sciences Research Council.
In addition to my demonstrated ability to analyze the requested release in order to provide
significant expansion of public knowledge of government operations, I also have the ability
and firm intention to disseminate this significant expansion of public knowledge of
government operations both within and outside academia. I will disseminate this
significant expansion of public knowledge of government operations through the
production of some combination of scholarly and popular articles, scholarly books,
scholarly and popular lectures, provision of documents and expert analysis to journalists,
and collaborations with journalists. This includes but is not limited to my above-noted
collaboration with (co-requestor) journalist Jason Leopold.
My scholarly research and related commentary on issues pertaining to the political
functioning of national security, controversies involving access to information, and the
policing of dissent, has been featured in numerous national and international media outlets.
These outlets include, but are not limited to The Washington Post, The Los Angeles Times,
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The Wall Street Journal, The International Business Times, NPR, BBC World Service, Agence
France-Presse, Huffington Post, HuffPost Live, Salon, The Hill, Mother Jones, Democracy Now!,
The Daily Beast, The Houston Chronicle, The Public Record, Fox Nation, MSN News, The Daily
Mail, The Hollywood Reporter, Truth-Out, The Afro American, Green Is the New Red,
FireDogLake, PolicyMic, Vice News, Doing Thing, The Verge, Tech Dirt, Freedom of the Press
Foundation, and AI Jazeera America.
This coverage has frequently included not only my analysis of documents released to me
through Freedom of Information Act requests and the broader political, social, and/or
security implications thereof, but also publication of released documents themselves.
I have also co-curated an historical exhibit at NIH on an issue pertaining to national
security and American social movements. The exhibit was held at the History of Medicine
Division of the National Library of Medicine at NIH. I co-curated this exhibit with, and at the
invitation of, the Deputy Chief of the History of Medicine Division of the National Library of
Medicine."
Additionally, I have presented scholarly and popular lectures pertaining to issues at the
nexus of American national security, American social movements, and the freedom of
information at numerous institutions. These institutions include, but are not limited to the
Massachusetts Institute of Technology the National Institutes of Health (NM), the Kennedy
School of Government at Harvard University, the Max Planck Institute for the History of
Science (Berlin), the University of California, Santa Barbara, the National Press Club
(Washington, DC), the conference of the National Lawyers Guild, the History of Science
Society the Society for the Social History of Medicine, the Conference on Policy History, the
American Society for Environmental History, Boston University, University College Cork
(Ireland), and Suffolk University Law School.
Further, my upcoming scheduled speaking engagements for the month of April 2014 alone
include Harvard Law School, Yale Law School, the City University of New York Law School,
The College of William & Mary, The Base community center in Brooklyn, NY, and Burning
Books bookstore in Buffalo, NY.
As should be clear from the above, Requesters have the ability and firm intention to
disseminate to the public significant expansions of understanding of government operations
based on my analysis of the requested disclosures.
11 See http://www.nlm.nih.gov/exhibition/animals/
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ii) Additional Note on Journalistic Research and the Public Interest:
The case law on this matter is emphatically clear that journalistic inquiry alone satisfies the
FOIPA public interest requirement. National Treasury Employees Union v. Griffin, 811 F.2d,
644, 649 (D.C. Cir. 1987).
Further, as articulated in the amendments to FOIA established by the OPEN Government
Act of 2007, Requesters solidly meet the applicable definition of "a representative of the
news media[.]" The OPEN Government Act of 2007 established that for FOIA purposes,
'a representative of the news media' means any person or entity that gathers
information of potential interest to the public, uses its editorial skills to turn the
raw materials into a distinct work, and distributes that work to an audience.
552(a)(4)(A)(ii)
Based on our completed and firmly intended research, analysis, and information
dissemination activities detailed at length herein, Requesters clearly satisfy this
description.
Further, the OPEN Government Act of 2007's definition of "a representative of the news
media" is taken nearly verbatim from language used by the United States Court of Appeals,
District of Columbia Circuit in the court's 1989 FOIA fee waiver-oriented ruling in National
Security Archive v. Department of Defense.12 As the court also relatedly found in National
Security Archive v. Department of Defense, a requester need not already have published
numerous works in order to qualify as a representative of the news media. The court found
that the express "intention" to publish or disseminate analysis of requested documents
amply satisfies the above noted requirement for journalists to "publish or disseminat[e]
information to the public:' National Security Archive v. Department of Defense, 880 F.2d
1386, (D.C. Cir, 1989). Requesters have expressed a firm intention to continue
disseminating significant analysis of documents obtained through FOIPA requests. And
Requesters have demonstrated our ability to continue disseminating significant analysis of
documents obtained through FOIPA requests.
Therefore, in that Requesters are "person[s] ... that gather[ information of potential
interest to the public, uses its editorial skills to turn the raw materials into a distinct work,
and distributes that work to an audience," Requesters solidly meet the applicable definition
of "a representative of the news media."
iii) Additional Note on Scholarly Historical Research and the Public Interest:
12 The language in National Security Archive v. Department of Defense reads, "A representative of the
news media is, in essence, a person or entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn raw materials into a distinct work, and
distributes that work to an audience." National Security Archive v. Department of Defense, 880 F.2d
1381, 1387 (D.C. Cit., 1989).
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Although Requesters have above provided extensive information supporting objectively
reasonable arguments for the public interest of our request beyond that of scholarly
interest alone, case law on this matter is emphatically clear that scholarly historical inquiry
alone satisfies the FOIPA public interest requirement. National Treasury Employees Union v.
Griffin, 258 U.S. App. D.C. 302 (D.C. Cir. 1987).
The courts have been equally clear that, in order to satisfy this public interest requirement,
"the public" to be benefitted by release of records to a scholar need not be the entire public.
Rather, it need only to be larger than the requester him or herself.
As the court ruled in Ettinger v. FBI,
requested information need not benefit the entire public. Benefit to a population group
of some size, which is distinct from the requester alone, is sufficient. Ettlinger v. FBI, 596
F. Supp. 867, 876 (D. Mass. 1984).
Requesters have herein substantially demonstrated that the population groups (scholarly
and otherwise) benefited by our analysis of the requested release are far larger than
ourselves alone.
D. The disclosure of the requested records is likely to contribute "significantly" to public
understanding of government operations and activities because disclosure would enhance
to a significant extent the public's understanding of the subject in question as compared to
the level of public understanding existing prior to the disclosure.
i) See above Section I.
ii) As noted above, the overwhelming preponderance of records Requesters need to
conduct our study are in the possession of the CIA and not in the public domain.
II. DISCLOSURE OF THE INFORMATION IS NOT PRIMARILY IN OUR COMMERCIAL
INTEREST.
Any commercial interest that Requesters have which would be furthered by the requested
disclosure is de minimis.
Requesters are requesting the release of records to analyze for use in the dissemination of
news and scholarly articles. Though journalists do get paid for writing news articles
(though historians do not usually get paid for writing scholarly articles), payment is not the
primary purpose for which such work is conducted. As the D.C. Circuit explained in
National Treasury Employees Union V. Griffin, 811 F.2d, 644, 649 (D.C. Cir. 1987), "While
private interests clearly drive journalists (and journals) in their search for news, they
advance those interests almost exclusively by dissemination of news, so that the public
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benefit from news distribution necessarily rises with any private benefit. Thus it is
reasonable to presume that furnishing journalists with information will primarily benefit
the general public[.]"
Similarly, In Campbell v. U.S. Dept. of Justice, a case arising from a scholar's efforts to secure
release of files pertaining to FBI investigations of author James Baldwin, the court held,
"The fact that a bona fide scholar profits from his scholarly endeavors is insufficient to
render his actions 'primarily commercial' for purposes of calculating a fee waiver, as
Congress did not intend for scholars (or journalists and public interest groups) to forego
compensation when acting within the scope of their professional roles." Campbell v. United
States DO], 164 F.3d 20 (1998).
Further, In National Treasury Employees Union v. Griffin, the court noted that the legislative
history of the fee waiver provisions indicate "special solicitude" for journalists and scholars.
The legislative history of the fee waiver provision indicates special solicitude for
journalists, along with scholars and public interest groups. While private interests
clearly drive journalists (and journals) in their search for news, they advance those
interests almost exclusively by dissemination of news, so that the public benefit from
news distribution necessarily rises with any private benefit. Thus it is reasonable to
presume that furnishing journalists with information will primarily benefit the
general publicH National Treasury Employees Union v. Griffin, 811 F.2d, 644, 649 (D.C.
Cir. 1987).
Similarly again, in Ettlinger v. FBI, a case involving a university professor seeking the
release of FBI documents pertaining to investigations of members of a dissident political
group, the court noted, "Though it is true that the plaintiff has some personal interest in the
records sought, there is no indication whatsoever, nor do the defendants claim, that the
plaintiff seeks those records solely with the intention of achieving commercial or private
benefit." Ettlinger v. FBI, 596 F. Supp. 867,880 (D. Mass. 1984).
The disclosure of records will significantly benefit the public interest, and this benefit to the
public is of vastly greater magnitude than our minimal commercial interest.
The disclosure of records will significantly benefit the public interest, and this benefit to the
public is of vastly greater magnitude than our minimal commercial interest.
Additionally, the courts and the legislature have been deeply invested in ensuring that
FOIPA duplication and search fees are not used by government agencies to deliberately or
otherwise thwart legitimate scholarly and journalistic research:
This was made clear in Better Government Ass'n v. Department of State, in which the court
ruled that, "The legislative history of the fee waiver provision reveals that it was added to
FOIA 'in an attempt to prevent government agencies from using high fees to discourage
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certain types of requesters, and requests; in particular those from journalists, scholars and
nonprofit public interest groups7 Better Government Ass'n v. Department of State, 780 F.2d
86,89 (D.C. Cir. 1986).
This point is further elaborated in Ettlinger v. FBI,
The legislative history of the FOIA clearly indicates that Congress intended that the
public interest standard for fee waivers embodied in 5 U.S.C. � 552(a)(4)(A) be
liberally construed. In 1974, Congress added the fee waiver provision as an
amendment to the FOIA in an attempt to prevent government agencies from using
high fees to discourage certain types of requesters and requests. The 1974 Senate
Report and the sources relied on in it make it clear that the public interest/benefit
test was consistently associated with requests from journalists, scholars and non-
profit public interest groups. There was a clear message from Congress that "this
public-interest standard should be liberally construed by the agencies." The 1974
Conference Report, in which differences between the House and Senate
amendments were ironed out, retained the Senate-originated public-interest
fee waiver standard and further stated "the conferees intend that fees should not
be used for the purpose of discouraging requests for information or as obstacles to
disclosure of requested information." Further evidence of congressional intent
regarding the granting of fee waivers comes from a 1980 Senate Subcommittee
report. The report stated that "excessive fee charges ... and refusal to waive fees in
the public interest remain ... 'toll gates' on the public access road to information."
The report noted that "most agencies have also been too restrictive with regard to
granting fee waivers for the indigent, news media, scholars ...and recommended
that the Department of justice develop guidelines to deal with these fee waiver
problems. The report concluded: The guidelines should recommend that each
agency authorize as part of its FOIA regulations fee waivers for the indigent, the
news media, researchers, scholars, and non-profit public interest groups. The
guidelines should note that the presumption should be that requesters in these
categories are entitled to fee waivers, especially if the requesters will publish the
information or otherwise make it available to the general public.
The court, in its Ettlinger it. FBI decision, continued that on 18 December 1980, a
policy statement was sent to the heads of all federal departments and agencies
accompanied by a cover memorandum from then United States Attorney General
Civiletti which stated that he had "concluded that the Federal Government often
fails to grant fee waivers under the Freedom of Information Act when requesters
have demonstrated that sufficient public interest exists to support such waivers."
The Attorney General went on to state: Examples of requesters who should
ordinarily receive consideration of partial fee waivers, at minimum, would be
representatives of the news media or public interest organizations, and historical
researchers. Such waivers should extend to both search and copying fees, and in
appropriate cases, complete rather than partial waivers should be granted.
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III. ALTERNATIVELY, THE AGENCY SHOULD EXERCISE ITS DISCRETION TO GRANT A
FEE WAIVER.
Although Requesters are entitled to a waiver of fees under 32 C.F.R. 1900.13(b)(2), even if
Requesters were not entitled to fees under that provision, the agency should grant
Requesters a fee waiver in the exercise of its discretion. Pursuant to 32 C.F.R.
1900.13(13)(1), "as a matter of administrative discretion, the interest of the United States
Government would be served." The agency should exercise its discretion here to award a
fee waiver because release of the documents would be in the interest of the United States
Government for the reasons stated above.
IV. CONCLUSION.
As demonstrated above, the disclosure of the requested records will significantly contribute
to expanded public understanding of government operations. Requesters have the intent
and ability to disseminate this significant expansion of public understanding of government
operations. The public interest in this significant expansion of public understanding of
government operations far outweighs any commercial interest of our own in the requested
release. Accordingly, our fee waiver request amply satisfies the rules of 32 C.F.R.
1900.13(b). Legislative history and judicial authority emphatically support this
determination. For these reasons, and based upon their extensive elaboration above,
Requesters request a full waiver of fees be granted. Requesters will appeal any denial of our
request for a waiver of fees, and will take the issue to the courts if necessary.
***
Please do not hesitate to contact me if you have any questions concerning this request.
Thank I appreciate your time and attention to this matter.
Jeff
Co
eopold and Ryan Noah Shapiro
(b)(6)
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