CIA Must Help With FOIA Request For Records On Torturers, Appeals Court Rules

The Central Intelligence Agency (CIA) and other government agencies have no right to “resist disclosure” if a requester fails to adequately describe records they are seeking in a Freedom of Information Act (FOIA) request. They also must make a “good faith” attempt to define a request properly, a federal appeals court ruled.

The Ninth Circuit Court of Appeals reversed a decision by a district court, which maintained a FOIA request for records on CIA personnel or affiliates that engaged in torture “constituted a question” instead of a legitimate request.

Stephen Yagman sent the CIA a letter on August 2, 2014, for records on “the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons.” Yagman specifically referenced President Barack Obama’s statement, “We tortured some folks,” which was uttered on August 1.

“Who are the individuals whom the word ‘we’ refers to?” Yagman asked in his request.

Before the twenty-day deadline for responding to FOIA requests, the CIA told Yagman “federal agencies are not required to answer questions posed as FOIA requests.” They declined to process the request. Yagman filed a class action complaint to force disclosure of records on torturers.

It was not until after Yagman filed suit that staff at the CIA offered to help rework the request so it could be processed. Two messages were left for Yagman that instructed him to call the CIA’s “FOIA hotline.”

The appeals court agreed [PDF] with the district court that Yagman did not “reasonably describe,” but it sent the case back down to a lower court and instructed Yagman and the CIA to rework the request.

“While we have rarely reviewed an agency’s refusal to respond to a records request on the ground that it poses a question,” the appeals court stated, “applying the duty to liberally construe records requests easily resolves this initial issue.”

“Liberally construed, Yagman requested ‘[r]ecords/information’ identifying CIA employees or affiliates who have engaged in torture after September 11, 2001. The fact that Yagman’s request references President Obama’s August 1, 2014, statement does not transform Yagman’s request to a question.”

“I don’t think this is a departure from the kinds of tactics agencies use to evade requests. However, claiming that a request is overly broad is a common way that they dodge requests. So, this is a pretty good illustration of that,” journalist and Shadowproof contributor Ken Klippenstein said.

In 2013, a federal judge scolded the CIA for “inappropriately” keeping records from requesters.

The case involved a lawsuit by the firm, National Security Counselors, which sought “documents concerning compliance with open records laws,” according to McClatchy Newspapers.

Judge Beryl Howell said the CIA was engaged in a “shameless twisting of the factual record” and denounced the agency’s assertions about its routine handling of requests.