SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 61
June 30, 2005

NRO USE OF FOIA EXEMPTION FOR "OPERATIONAL FILES" CHALLENGED

A lawsuit filed by the Federation of American Scientists today charged that the National Reconnaissance Office (NRO) has improperly invoked the "operational files" exemption to the Freedom of Information Act in order to withhold unclassified budget records from disclosure.

The NRO is somewhat notorious for its expansive interpretation of the FOIA exemption for "operational files," meaning records "that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems."

Such records are exempt from the search and review requirements of the Freedom of Information Act since they are typically highly classified and are unlikely to be disclosed anyway.

But NRO has been using the operational files exemption (at 50 U.S.C. 403-5e) to withhold historical records and routine administrative records such as budget documents. This was almost certainly not the intent of Congress when it granted the exemption to the agency in 2002.

As far as could be determined, there has been no prior litigation on the use of the "operational files" exemption. Besides NRO, such an exemption has been granted to CIA, NSA and NGA. The Defense Intelligence Agency was denied an operational files exemption in 2000, but it is trying again in next year's pending defense authorization act.

The FAS FOIA lawsuit seeks disclosure of unclassified portions of the NRO's Congressional Budget Justification Book (CBJB) for FY 2006. As recently as last year, NRO released substantial unclassified portions of the CBJB. But now it claims they are exempt from the FOIA.

A copy of the complaint filed today in DC District court may be found here:

INSIDER ESPIONAGE THREAT IS GROWING, DOD STUDY SAYS

Opportunities and motivations for espionage by cleared "insiders" are steadily increasing, according to a new study performed for the Department of Defense.

There are numerous reasons why the perceived insider threat is growing, the study says.

"Insiders have an unprecedented level of access to classified and proprietary information due to technological advances in information storage and retrieval."

"American employees have greater opportunity to establish contact with foreign entities and to transfer information to them through traveling internationally more often and by participating in international research and business ventures more frequently."

"Internet use is expanding globally and computer-users are becoming more culturally and linguistically diverse. The Internet can now be used to transmit massive amounts of digitized information to multiple foreign parties simultaneously."

"Finally, the market for U.S. information is expanding."

Complicating matters further, "Even the most effective personnel security program will never fully eliminate the insider espionage threat."

The DoD study, published in May, is somewhat old-fashioned in the sense that it focuses on information security in isolation and as an independent variable. It does not consider whether there is such a thing as an "acceptable" level of espionage risk, nor does it address the possible adverse consequences of tightening information security controls.

See "Technological, Social, and Economic Trends That Are Increasing U.S. Vulnerability to Insider Espionage," by Lisa A. Kramer, Richards J. Heuer Jr., and Kent S. Crawford, Defense Personnel Research Center (PERSEREC), May 2005:

Speaking of Richards J. Heuer Jr., his remarkable 1999 book "Psychology of Intelligence Analysis" has just been translated into Hebrew and published by the Israeli Ministry of Defense. The original may be found here:

CRS REPORTS IN THE EXECUTIVE OFFICE OF THE PRESIDENT

The Congressional Research Service insists that it works "solely, directly and specifically" for Congress. That excludes not only the American public, but also executive branch agencies and the White House.

So White House officials who want to read CRS reports have to beg, borrow or buy them just like anyone else. And they do.

As of this month, there were several dozen CRS reports posted on the internal web site of the Executive Office of the President (EOP) research library. The White House's limited access to CRS publications is evident from the fact that in many cases the posted reports are not the most recently updated editions.

A copy of the list of CRS reports currently on the EOP library web site was requested by researcher Mike Ravnitzky. The three page list is posted here:

SELECTED CRS REPORTS

Recent reports of the Congressional Research Service obtained by Secrecy News include the following:

"The Availability of Judicial Review Regarding Military Base Closures and Realignments," June 24, 2005:

"Women in the United States Congress: 1917-2005," updated June 21, 2005:

"Al Qaeda: Statements and Evolving Ideology," updated June 20, 2005 (reported last week in US News and World Report):

"Federalism, State Sovereignty and the Constitution: Basis and Limits of Congressional Power," updated June 17, 2005:

"Countries of the World and International Organizations: Sources of Information," updated June 7, 2005:

"Membership of the 109th Congress: A Profile," updated May 31, 2005:

"Homelessness: Recent Statistics, Targeted Federal Programs, and Recent Legislation," updated May 31, 2005:

"Technology Assessment in Congress: History and Legislative Options," updated May 20, 2005:

"Long-Range Fifty Caliber Rifles: Should They Be More Strictly Regulated?," May 20, 2005:

"Vaccine Policy Issues," updated May 19, 2005:

"Iran's Nuclear Program: Recent Developments," updated May 18, 2005:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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