F-2013-00829 APPEAL REQUEST

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06026062
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 2
• Document Creation Date: July 13, 2023
• Document Release Date: December 9, 2022
• Case Number: F-2017-01914
• Publication Date: May 1, 2013

APR-25-2013 15:93 FROM:
TO:703 613 3007 P.1/15
Approved for Release: 2022/11/22 C06026062
NATIONAL SECURITY
PROJECT
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
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OFFICERS AND DIRECTORS
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AMkRICAN tivd. L
April 25, 2013
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Information and Privacy Coordin to
Central Intelligence Agency
Washington, D.C. 20505
Fax: [phone]
Reference: F-2013-00829
To Whom It May Concern:
The American Civil Liberties Union and the American Civil liberties
Union Foundation (collectively "ACLU'') write to appeal from the CIA's
response to FOIA Request F-2013-00829, in which we sought a report:
recently adopted by the Senate Select Committee on Intelligence ("SSCI") on
the CIA's rendition, detention, and interrogation program in the years
following 9/11. See FOLA Request of February 13, 2013 ("Request")
(Exhibit 1, attached).
In a letter dated. February 22, 2013 ("Response Letter"), Information
and Privacy Coordinator Michele Meeks stated that our request could not be
accepted because we seek "a Congressionally generated and controlled
document that is not subject to the FOLA's access provisions." See Response
Letter (b".xhibit 2, attached).
The ACLU appeals from Ms. Meeks' decision- It is true that the
FOLA only applies to agency records, and not to congressional documents,
See 5 U.S.C. �,� 551(1), 552(f); fee also e.g., United We Stand America v. LR.S., 359
F.3d 595, 597 (D.C. Cir. 2004) ("Because Congress is not an agency,
congressional documents are not subject to FOI.A's disclosure
requirement."). But an agency may not avoid a valid FOIA request by
unilaterally asserting that the record requested is not an agency record.
The Supreme Court has held that two requirements "mi.et be
satisfied for requested materials to qualify as 'agency records.'" Dc; 't of Justhp
v. Tax Analysts, 492 U.S. 136, 111 (1989). First, an agency "must 'either
create Or obtain' the requested materials," and second, the agency "must be
in control of the requested materials at the rime the FOIA request is made."
Id. at 144-45 (quoting For.thane v, [lam's, 445 U.S. 169, 182 (1980)),
It is indisputable that the CIA has "obtainledl" the SSCI Report
requested. See, cg., Statement to CLA Employees from CIA Acting Director
Michael Morrell 011 the SSCI Report on Past Agency Program, Dec. 14, 2012
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AMERICAN rRI L LIML.HrIEE
UNION FOUNDATION
("The Committee voted to make the report available for comment to several
Executive Branch agencies, including CIA, and I very much appreciate
(SSCIA Chairman Feinstein's commitment that the report is open to
revision"), available at http://tinyurl.com./(18qzSsa. The only question,
therefore, is whether the CIA is "in control of' the SSCI Report at this rime.
The Supreme Court has explained that "[by control we mean that
the materials have come into the agency's possession in the. legitimate
conduct of its official duties," Tax Analysts, 492 U.S. at 145. As Acting
Director Morrell made clear last December, the CIA has received the. SSCI
Report in the legitimate conduct of its official duties. Moreover, the SSCI
Report reportedly makes a number of recommendations to the CIA that the
CIA presumably has reviewed in the conduct of its official duties in
determining whether and how to implement those recoirunendarions, The
CTA thus may not reject the ACLU's FOIA request by claiming that the SSCI
Report falls outside the statute's purview.
For the foregoing reasons, Ms. Meeks' decision was in error. The
CIA should promptly process the ACLU's request.
Sincerely,
Ms. Mitra Ebaciolahi
American Civil Liberties Union
125 Broad Street, ItIth Floor
New York, NY 10004
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(b)(6)
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