For
Immediate Release:
September 5, 2007
Court
Permits CIA to Withhold Historic President’s Daily Briefs, But
Denies Categorical Exemption for PDBs
For more information: Professor Larry
Berman 202/974-6202
Thomas Burke/Duffy Carolan, Davis Wright Tremaine 415/276-6500
Meredith Fuchs/Thomas Blanton, National Security Archive
202/994-7000
San
Francisco, California, 5 September 2007 - The Ninth
Circuit Court of Appeals this week
held that the disclosure under the Freedom of Information
Act of two Presidential Daily Briefs written for President
Lyndon B. Johnson in the 1960s could “reveal protected
intelligence sources and methods.” The Court rejected, however,
the Central Intelligence Agency’s “attempt to create a per se
status exemption for PDBs.”
In a lawsuit brought by Professor Larry
Berman, a professor of Political Science at U.C. Davis and the
author of Perfect Spy: The Extraordinary Double Life of Pham
Xuan An, Time Magazine Reporter & Vietnamese Communist Agent
(Smithsonian-Harper Collins 2007), the Court concluded that
revelation of the two 40-year-old PDBs could hinder the CIA’s
current efforts to recruit sources. Nonetheless, the Court
noted that the CIA’s assertions in that regard would become less
plausible with the passage of time. The Court further made
clear that PDBs are not “categorically exempt from FOIA.”
The Court also rejected a novel argument
put forth by the CIA that the well documented practice of
briefing the President itself is an intelligence method that
would permit all PDBs to be withheld in whole. Instead, the
Court reaffirmed that the CIA has an obligation to “provide a
specific justification that explains why the particular document
requested” fits within the exemption.
“While we are disappointed that the Court
did not order disclosure of the two PDBs, because we suspect
their content is innocuous, at least the CIA must end its
practice of categorically refusing to release all PDBs,”
commented National Security Archive General Counsel Meredith
Fuchs. “Our goal in this litigation was to force the agency to
conduct a genuine review and assess the true sensitivity of each
document. We hope the Agency will take the Court’s analysis to
heart and do the right thing in the future.”
Professor Berman was represented jointly
by the Archive and by Thomas R. Burke and Duffy Carolan of the
law firm Davis Wright Tremaine LLP in San Francisco, CA.
