D.C., 13 March 2006 - The Central Intelligence
Agency has won the second annual Rosemary Award, recognizing the
worst performance by a federal agency in complying with the Freedom
of Information Act. The Award is named after President Nixon's
secretary Rosemary Woods and the backwards-leaning stretch which
she testified resulted in her erasing eighteen-and-a-half minutes
from a key Watergate conversation on the White House tapes.
Woods stretches backward across her desk to answer the
National Security Archive director Thomas Blanton announced today
that this year's Rosemary goes to the Central Intelligence Agency,
for what he called "the most dramatic one-year drop-off in
professionalism and responsiveness to the public we have seen
in 20 years of monitoring federal government compliance with the
freedom of information law."
President Bush ordered agencies in his December
14, 2005 Executive Order to take a "citizen-centered
and results-oriented approach" that "will improve service
and performance, thereby strengthening compliance with the FOIA,
and will help avoid disputes and related litigation." The
CIA, under the direction of chief FOIA coordinator Scott Koch,
has taken the opposite tack and has escalated its disputes and
related litigation over the past year. Here are the CIA's performance
markers that clinched the 2006 Rosemary:
1) CIA handles only 0.08% of the total number of FOIA requests
received by the government, but has achieved 40% of the ten
oldest still unanswered requests government-wide. CIA's
oldest requests are so old they are eligible for drivers' licenses
in most states.
2) After stalling for 15 years a request from a Lancaster,
Pennsylvania newspaper for records on a convicted arms dealer
with ties to the intelligence community (a former director of
the National Security Agency had served on the dealer's board),
CIA finally answered the request in 2005 with a "no records"
3) More creatively, CIA responded to a 2005 request for records
on the relationship between Taliban leader Mullah Omar and Osama
bin Ladin by claiming the Agency could "neither confirm
or deny" the existence of any such documents. Hundreds
of such documents have been released by other agencies, including
transcripts of official conversations with Omar, and the 9/11
Commission report provides extensive detail on the relationship.
4) At the same time that CIA's chief information reviewer, Terry
Buroker, was swearing
under penalty of perjury in federal court that not a word
of a 40-year-old President's Daily Brief given by the CIA to
President Johnson could be released without serious damage to
current U.S. national security, Mr. Buroker cleared for release
two such LBJ-era Briefs (PDB
- 25 April 1967, PDB
- 29 May 1967) because they were in cable format instead
of PDB letterhead (he didn't recognize them as PDBs). When Mr.
Buroker actually reviewed their contents (which were innocuous),
he released the documents, but when he saw letterhead, he claimed
5) Beginning in August 2005, Mr. Koch reversed 15 years of
CIA compliance with the FOI statute and began telling graduate
students that they would have to pay search and review fees
for any FOIA request they undertook for thesis or dissertation
research, despite the law's clear provision that the "educational"
category of requester would pay only photocopying fees. No doubt
this will reduce Mr. Koch's workload by intimidating young scholars
from filing requests in the first place, although some may well
litigate the matter.
6) Also in August 2005, Mr. Koch reversed 15 years of CIA compliance
with the unanimous 1989 D.C. Circuit Court of Appeals opinion
that settled the search and review fee question for journalists,
and began telling representatives of the news media that it
was up to CIA to decide whether the subject of their requests
was newsworthy; otherwise, they would pay too. CIA judged newsworthy
only one out of 40 recent requests from the National Security
Archive (which has won the Emmy and the George Polk Awards for
its news judgment). No doubt this will lead to wasteful re-litigation
of a settled issue.
Archive director Blanton commented, "Of course, such an
extraordinarily dismal record of customer contempt can hardly
be achieved by a single bureaucrat working alone." Mr. Koch
will have to share the credit for this year's Rosemary for Worst
Freedom of Information Performance by a Federal Agency with his
boss, Edmund Cohen, his legal counsel, Bruce Burke, and with information
reviewer Terry Buroker. Each will receive a framed photograph
of Rosemary Woods in the Stretch. The new CIA Chief FOIA Officer,
Adolfo Tarasiuk, Jr., who was named in February 2006 as mandated
by President Bush's Executive Order 13,392, is too new on the
job to be able to claim any credit for CIA's bottom-dwelling performance,
but he remains eligible to have his name added to next year's
Rosemary assuming CIA's current trends continue.
The U.S. Air Force was the previous winner of the Rosemary in
2005 for outstandingly bad FOIA performance, after it apparently
lost (or threw away) dozens of FOIA requests dating back 18 years.
But a lawsuit by the National Security Archive with pro bono representation
by the law firm of James & Hoffman prompted the Air Force
to launch a major "FOIA Get Well" program, hire new
senior staff, reach out to requesters and to other agencies for
best practices, and begin to clean up its backlog. On the way
up, the Air Force passed the CIA on the way down.
[Presented by the National Security Archive, George Washington
University, www.nsarchive.org, 13 March 2006, in honor of Sunshine