SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 29
March 26, 2009

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CIA UPDATES DIGITAL ARCHIVE, RESTRICTS ACCESS

The Central Intelligence Agency maintains a regularly updated electronic archive of declassified historical records that have been publicly disclosed, but it has effectively squandered the utility of digitizing these records by refusing to make them available online.

The CIA to its credit has done more than any other agency to scan declassified records into digital format and to make them word-searchable. Millions of pages of records have been archived in the CIA Records Search Tool (CREST). But those electronic records are maintained in a single geographical location as if they were old-fashioned paper files.

"To use CREST, a researcher must physically be present at the National Archives, College Park, Maryland," the CIA insists, thereby negating much of the value of the electronic archive.

"Recognizing this presents an obstacle to many researchers, we have been investigating ways to improve researcher knowledge of and access to CREST documents," the CIA said.

Thus, the CIA web site this week announced a newly updated "finding aid" that permits online word-searches of CREST documents that have been entered into the system through 2008.

But one way to improve researcher access that CIA will not "investigate" is to put the entire CREST database online so that anyone, anywhere could download these declassified, often heavily censored records. Nor will CIA release an electronic copy of the CREST database so that others may post it.

Why not?

CIA claims that withholding the database from unrestricted release is necessary to protect (what else?) intelligence sources and methods. The Agency evidently believes that there are latent secrets concealed in the declassified record that could somehow be extracted by a clever analyst who reviewed them in electronic form. Further, CIA holds that protecting such ethereal secrets is more important than providing improved public access to the historical record.

It doesn't matter if this is undemonstrated or untrue. All that matters is that CIA officials believe it, or say that they do. But others question the logic of this policy.

"All that the new tool will do," a classification official in another agency told Secrecy News, "is to drive their FOIA numbers up."

In other words, researchers who find a document of interest on the CREST search engine but who cannot travel to College Park, MD to physically access the CREST archive will tend to request the declassified record under FOIA instead, thereby increasing demand on the already backlogged CIA FOIA process.

So, for example, a search of the CIA CREST finding aid under "Federation of American Scientists" turns up citations to two documents, both from 1972 and both originally of "unknown" classification level: one is a two-page newsletter that was released in full, and the other is an eight-page document that was released in part. The exact nature of either record cannot be ascertained without a trip to the National Archives, or a FOIA request to CIA.

But "this is progress nevertheless," the classification official said.

In fact, the CIA CREST database suggests one of the most dramatic and effective enhancements that could be made to the declassification system: Digitize government records as they are declassified and then make them publicly available online.

In 1995, President Clinton ordered agencies that classify information to "establish a Governmentwide database of information that has been declassified" (Executive Order 12958, section 3.8). That never happened, and in 2003 President Bush deleted the requirement (Executive Order 13292, section 3.7). Restoring such a requirement, and fulfilling it, would be an appealing feature of a new executive order on classification.

COURTS PAY ATTENTION TO NEW FOIA POLICY

A skeptical person might presume that the new Freedom of Information Act policy announced by Attorney General Eric Holder on March 19 declaring that agencies should "adopt a presumption in favor of disclosure" is a rhetorical posture without much practical significance.

After all, requesters who used FOIA during the Clinton era know that agencies frequently withheld information even when it would have caused no "foreseeable harm," despite the policy of Attorney General Reno that such information should be released. (Nor, for that matter, did agencies during the Bush Administration always withhold information every time they were legally entitled to do so, as the Ashcroft policy advised.)

But remarkably, federal courts are already considering the new Holder policy in response to plaintiff requests and are modifying the course of pending FOIA litigation as a result.

In one case, the Electronic Frontier Foundation (EFF) asked a court to stay a proceeding and to order the Office of the Director of National Intelligence and the Department of Justice to reconsider their denial of requested records by employing the new Holder guidelines. Those agencies opposed the idea. But in a March 23 opinion, Judge Jeffrey S. White of the Northern District of California granted the EFF motion.

Likewise, in another EFF FOIA lawsuit this week, Judge John D. Bates ordered the Department of Justice "to evaluate whether the new FOIA guidelines affect the scope of its disclosures and claimed withholdings in this case."

"We now have four cases in which there are similar court orders," said David Sobel, EFF senior counsel, which are "the result of our motions to stay proceedings pending issuance of the new guidelines."

"I think it shows that a bit of aggressiveness on the part of FOIA litigants will likely force the government to reconsider prior withholding decisions," he said.

The final sentence of the new Holder policy states that "This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by any party against the United States, its departments, [or] agencies."

Whatever that sentence means, it is not stopping courts from invoking the new memorandum against the government and against the Department of Justice itself.

VARIOUS RESOURCES

A survey of the "most wanted" government documents that should be publicly available but are not was recently conducted by OpenTheGovernment.org and the Center for Democracy and Technology. They reported their findings in "Show Us the Data: Most Wanted Federal Documents," March 2009.

"Where once we [the United States] were seen as the world's leader in intellectual discourse and debate, we are now viewed as withdrawn and unconcerned with any views other than our own," wrote Senator Richard Lugar in the introduction to a new Senate Foreign Relations Committee report that advocates renewed engagement in public diplomacy and outreach to foreign audiences. See "U.S. Public Diplomacy -- Time to Get Back in the Game," February 13, 2009.

Unlike some other resources, scientific information in digital form "is not diminished upon use. On the contrary, digital access has a catalytic effect, multiplying the value of information through repeated use by a wide variety of users in a diversity of settings and applications." See "Harnessing the Power of Digital Data for Science and Society," report to the National Science and Technology Council, January 2009.

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

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