In response to concerns and complaints about the Freedom of Information Act (FOIA), in 1979 the House of Representative’s Permanent Select Committee on Intelligence held hearings on the impact FOIA on intelligence activities. Although compiled by the Government Printing Office in 1980 and declassified by CIA in 2011, the 185 page hearing transcript was only recently made available online at the Internet Archive. The hearings provide a striking insight into how the Intelligence Community views FOIA and FOIA requesters
To the Intelligence Community, the Freedom of Information Act (FOIA) isn’t just a tool for transparency and public access – recently obtained Congressional testimony from former senior intelligence officials claims it’s very existence is a chilling effect for the intelligence community, one which is used by hostile intelligence services to undermine the United States. It is, according to the former Deputy Director of CIA, the cause of some of the intelligence communities “most serious problems.”
Frank Carlucci, then Deputy Director of CIA, began his testimony by declaring that the problem of FOIA “is essentially a matter of perception” and that foreign intelligence services would use the hearings and his testimony to convince potential assets and agents not to collaborate with CIA. He and then-Director of CIA Admiral Turner objected to “apply Government-wide public disclosure concepts” to authorized CIA activities, and to the idea that the public should play a role in government oversight. “You [the Select Committee on Intelligence], not 20,000 FOIA requesters, foreign and American, are the proper people to conduct oversight.”
Carlucci implored the Committee to “imagine the shackles being placed on the CIA case officer” by FOIA. Intelligence disclosures, he argued, make it nearly impossible for case officers to convince potential assets to cooperate and that their information will be protected. “Some very important” unnamed foreign agents have terminated their relationship with CIA as a result of public disclosures from the press and from FOIA. According to Mr. Carlucci, the chief of a “major foreign intelligence service” directly stated he wouldn’t cooperate with CIA as long as it was subject to FOIA. The former Deputy Director explained that similar concerns had been raised by domestic contacts, including a former Cabinet member and head of a major American company who had refused to cooperate with CIA if doing so could be subject to FOIA.
Since the FOIA process is carried out and reviewed by human beings at CIA, and human beings are fallible, mistakes will inevitably be made. Although he doesn’t say it directly, Mr. Carlucci’s implication is that CIA shouldn’t be given the opportunity to make mistakes – a standard that, if ever applied, would end all government activity. If that claim were odd, it’s benign compared to his next accusation.
“Many [FOIA requesters] are foreigners, possibly representatives of hostile intelligence services and clearly some are from those whose apparent purpose in writing is to uncover information would do harm to this Nation’s interests overseas.” While there’s no doubt that foreign intelligence services use Open Source Intelligence (OSINT) methods, including FOIA, the accusation is haunting. What began as a legitimate concern has turned into a witch hunt, often targeting accomplished journalists like Jason Leopold with accusations of being FOIA terrorists and blaming the journalists for the agencies’ difficulties to comply with the FOIA statute, complete with attempts by President Obama’s Justice Department to undermine FOIA itself. It’s worth noting that while Carlucci claimed many FOIA requesters are foreigners, he later admits that CIA “can’t even tell in many cases when the requests come from foreigners or Americans.”
Towards the end of his prepared statement, Deputy Director Carlucci tried to put the problem of FOIA into perspective for the Congressional committee. “I can tell you in all candor,” Carlucci said, “that the erosion of our ability to protect our sources and methods, and more importantly, the larger than life perception of that erosion is the most serious problem the CIA faces today.” [emphasis added] Some of the blame, however, evidently lied with the courts which Carlucci accused of taking “a rather liberal view of information that is in the public interest.”
The actual damage caused by FOIA may be nonexistent beyond the pre-existing need to protect sources. When asked directly by Congressman Ashbrook whether FOIA had resulted in information being released that was harmful to the Agency, Mr. Carlucci states that it’s the perception that it could happen that’s actually hurting the Agency. Mr. Carlucci offered to discuss documents that had already been publicly released and the damage that they’ve caused in an executive session.
In a followup statement in the same hearing, a representative from NSA argued that “there is reason to fear that the mosaic of information disclosed by numerous responses to FOIA requests, even if highly circumscribed, will prove helpful to foreign powers.” NSA’s representative also argued that there is a slippery slope with FOIA, because the more the Agency discloses about its activities, “the more ammunition it supplies to FOIA requesters who argue that against the background of what is known further disclosures cannot be deemed harmful.”
The “mosaic of information” refers to the mosaic theory of intelligence collection, which states that by collecting enough isolated pieces of information, a larger picture will emerge through cross-referencing and analysis. The theory drives many of the United States’ digital collection programs, but it continues to be used to attack journalists and FOIA requesters like Ryan Shapiro. Under this theory, FOIA offices want to consider the “cumulative effect” of information releases as opposed to reviewing each document by itself. According to NSA’s representative, a single release “might not prove fatal… hundreds or thousands undoubtedly would.”
One can only imagine how they felt about the Snowden disclosures, or the increased number of FOIA requests that have been filed with the Intelligence Community since then.