Thursday, August 27, 2009

CIA and FBI: Results of My FOIA/FOIPA Request

Lately, the FOIA is getting good press. The FOIA and FOIPA allow Americans to gain access to any information government agencies have about them. In the old days, Ashcroft instructed lawyers to do whatever they could to deny requests for information, such as charging high fees for file searches or copies. President Obama, on the other hand, has promised change, and part of this change is more transparency. I wanted to see whether government agencies were complying with President Obama's message, so I recently sent FOIA and FOIPA requests to both the FBI and CIA. Their handling of my requests were starkly different, even though I sent the same letter to both agencies.

All government agencies should have similar responses to FOIA and FOIPA requests for personal information. The two laws are not overly complicated, so they shouldn't be interpreted differently depending on whichever agency is handling the request. Therefore, a valid request for personal information should result in a similar response from all federal agencies--i.e., the agency must produce relevant documents to you if such documents exist.

The procedure is simple: agencies must respond within 20 days and acknowledge they have received your request. Then, the agency must do a search for your documents and if it finds relevant documents, it must provide you with those documents. In some cases, an agency may redact sensitive information on documents. (Note: under Bush II/Ashcroft, the DOJ improperly and excessively redacted information, which effectively gutted the FOIA and forced multiple appeals).

In my case, in terms of responsiveness, the FBI passed with flying colors. Not only did the FBI acknowledge my request in less than a week, it even waived the normal fees and included an FBI Fact File Sheet (one sample fact: "The FBI does not keep a file on every citizen of the United States."). Then, it did the search for relevant documents the very next day and mailed me a written update. Someone at the FBI even personally initialed both letters.

The FBI's substantive response was interesting. No documents existed on me, but "Records which may be responsive to your Freedom of Information-Privacy Acts (FOIPA) request were destroyed on February 14, 2005." I believe I applied for the FBI's Special Agent trainee position around 1999. Thus, it appears the FBI destroys applicant/personnel files after six years. The FBI letter even told me exactly how to appeal the decision; where to send the appeal; and the exact statute of limitations (60 days from the date of the letter). In terms of professionalism and responsiveness, the FBI seems to be complying with President Obama's transparency directive.

In contrast, the CIA appears to be following Dick Cheney's philosophy of concealing information. Although it did respond to my request, I received their response on the twentieth day. Also, although the CIA's letter is dated August 20, 2009, the envelope shows that the letter was not mailed until August 24, 2009--four days after it was written. As of today, the CIA has refused to provide me with any information.

The CIA cited 32 CFR 1901.13, which states, "In the case of an individual who is an alien lawfully admitted for permanent residence, said individual shall provide his or her alien registration number and the date that status was required." I am a naturalized U.S. citizen, not an alien or permanent resident. The plain language of the code section uses the present tense, not the past tense to refer to a person "who is an alien." Somehow, the CIA is claiming I need to comply with legal language that applies to non-citizens, even though I am an American citizen.

I used the same written content for both FOIA/FOIPA requests. Only the CIA denied my request and demanded more information. In denying my request, the CIA also referred to legal code that doesn't apply to American citizens. The FBI's fulfillment of my request supports my belief that the CIA is incorrectly throwing up a hurdle to deny me information. In addition, the CIA failed to respond to my fee waiver request.

Two different agencies, the same laws, and two entirely different responses. I am debating whether I should give the CIA the information they want, or whether I should tell the CIA I will take them to court if they don't grant my request. My gut tells me to provide them with the information, but I may change my mind. [Update: go to the bottom of this post to see what eventually happened.]

My letter to the FBI is below:

ORIGINAL SENT BY MAIL

Attn: FOIA Request
Federal Bureau of Investigation
Record Information/Dissemination Section
170 Marcel Drive
Winchester, VA 22602-4843

Dear FBI:

Under the Freedom of Information Act, 5 U.S.C. subsection 552 and the Privacy Act, 5 U.S.C. section 552a, please furnish me with copies of all records about me indexed to my name. To help identify information about me in your record systems, I am providing the following required information:

Full name: X
Current address: X
Date and Place of Birth: X
Citizenship status: X

If you deny all or any part of this request, cite each specific exemption forming the basis of your refusal to release the information, and notify me of appeal procedures available under the law.

I believe I am a representative of the news media and this request is made part of news gathering and not for commercial use. I publish a blog at willworkforjustice.blogspot.com that posts, among other items, articles about the government. I will be writing about my experience requesting information from your agency on this blog. This matter affects a public interest because it will show Americans how to access their information from government agencies. It will also test President Obama’s statements about whether the federal government is more open to granting FOIA requests.

If you do not deem me to be eligible for a fee waiver, then I agree to pay reasonable fees/costs incurred in the copying of these documents up to the amount of $30. If the estimated fees will be greater than $30, please contact me by telephone (xxx-xxx-xxxx) before such expenses are incurred. If you have any questions regarding this request, please contact me by telephone. Thank you for your assistance.

Under penalty of perjury, I hereby declare that I am the person named above and I understand that any falsification of this statement is punishable under the provisions of Title 18, United States Code (U.S.C.), Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years, or both; and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of Title 5, U.S.C., Section 552a(i)(3) as a misdemeanor and by a fine of not more than $5,000.

Date: ________________________________

Signature _____________________________

FYI: CIA's address and fax number are as follows:

Information and Privacy Coordinator
Central Intelligence Agency
Washington, D.C. 20505
fax: (703) 613-3007

Update on September 15, 2009: on September 7, 2009, I decided to give the CIA the information they wanted. I told them if I did not hear back from them by September 15, 2009, I would assume that they had a policy of treating naturalized citizens differently (read: more harshly) than native-born citizens. I have not heard back from the CIA yet.

Update on September 27, 2009: on a letter post-marked on September 21, 2009 and written on September 17, 2009, the CIA finally responded to my request: "We were unable to identify any information or records filed under your name. Regarding your request for a fee waiver, it is the policy of this agency to not charge fees for Privacy Act searches."

Bonus I: more "loveliness" from the CIA here.

Bonus II: see comments section for ODNI request and result.

Bonus III: see HERE for a summary of CIA Director Leon Panetta's speech at SCU (2010).

12 comments:

Anonymous said...

G'day mate. Just curious after reading this article you wrote, as of today have you heard more from the CIA regarding your original FOIA Request? Even if you didnt succeed, in my opinion its worth a shot giving them the information they need to process you original FOIA Request, hopefully. Cheers.

K_Yew said...

After much thought, I decided to give the CIA the information it wanted, even though it made me feel like a second-class citizen.

The CIA finally responded to my request: "We were unable to identify any information or records filed under your name." A bit anti-climactic, isn't it?

(I added an update at the very end of the post in September, but I will add a sentence in the post itself to make the result more clear.)

Anonymous said...

Yes It does sound a bit anti climatic, but hey its the CIA afterall. At least you did get some success from the FBI though. Have you considered making an FOIA Request with the National Security Agency? I recommend its worth trying, although when i sent my request it was "sort of" denied due to an FOIA regulation and some Executive Order or something about information is classified for purposes and such and such etc. Good luck and all the best for the future mate.

Mr. ? said...

Did you appeal the FBI's denial of your FOIA/PA Request?

K_Yew said...

Mr. ?: actually, it was the CIA--not the FBI--that initially denied my FOIA request. After I provided them with the information they demanded, the CIA gave me the following information:

"We were unable to identify any information or records filed under your name."

I did not see the need to appeal, but perhaps I should have.

Mr. ? said...

Well you might also have some luck filing a FOIA/PA Request to the Office of Director of National Intelligence (ODNI). Maybe they might have records about you perhaps. Might be worth trying. Merry Christmas K_Yew.

K_Yew said...

@Mr. ?: thank you for your comment. May 2010 treat you well.

Mr. ? said...

Hope 2010 treats you well too K__Yew. If you do send a FOIA request to the ODNI, let me know how it goes. All the best for the new year mate!

K_Yew said...

@Mr. ?: I finally got a substantive response from ODNI, but they took their sweet time. Pursuant to my December 21, 2009 request, they answered on March 11, 2010 as follows:

"ODNI conducted a search for unclassified records responsive to your request and no records were located. Pursuant to FOIA Exemptions 1 and 3, 5 USC 552(b)(1) and (3), the ODNI can neither confirm nor deny the existence of classified records responsive to your request."

Interesting stuff. And they misspelled my name on the envelope.

Mr. ? said...

Hello again. Yes, that's very similar to the response I got from the ODNI last year. Say K_Yew, do you happen to know if an agency says they "can niether confirm no deny the existence or nonexistence of records responsive to your request" what exactly does this response mean? Do records exist but cannot be released, or am i reading too much into this statement?

It seems when I sent a request for records on myself under the FOIA to both the ODNI and CIA, I got the same similar response regarding that they "can neither confirm nor deny" under FOIA Exemptions (b)(1) and (b)(3) under Executive Order 12958.

Its very interesting. Anything you think you can make of all this please mate?

Thanks again. Have a good Easter if you celebrate it. Cheers.

K_Yew said...

@Mr. ?: sounds like ODNI is just expressly reserving certain rights under the statute:

http://www.law.cornell.edu/uscode/5/usc_sec_05_00000552----000-.html

In my case, ODNI said no unclassified records existed. I don't necessarily expect ODNI or any other agency to give me any classified records without a lawsuit demanding an "in camera" review of such records (if any).

It would, however, be a good idea to minimize litigation and have an independent commission of retired judges who could do an independent review of classified documents.

Anyway, I didn't get the impression ODNI had any records on me. The letter appears to be a form letter that notifies the FOIA/FOIPA requester that ODNI has the right to keep certain sensitive records classified in the interests of national security. Now, why ODNI took its sweet time in getting back to me, I have no idea. It was the slowest agency in terms of responding to my FOIA/FOIPA request.

Mr. ? said...

Yeah true mate. If i can ask you K_Yew, do you happen to know if bloggers such as you and me are officially considered under FOIA regulations as "representatives of the news/media" ?

Im planning on making a new FOIA request to the Air Force and it would be useful to know if bloggers are officially representatives of the news media as I would hope not to pay search fees or anything, unless pay for over 100 pages, you know?

Thanks again. Much appreciated. All the best