Intelligence Community Tries & Fails to add Silly Exemption to FOIA

Earlier this month, the Washington Post ran a story [1]about the intelligence community’s efforts to push legislators to amend the Intelligence Authorization Act (S. 1494 [2]) to exempt “terrorist identity information (TII)” from the Freedom of Information Act (FOIA).  Currently, this information is marked as Controlled Unclassified Information (CUI) with a stamp that reads “for official use only” but the Office of the Director of National Intelligence (ODNI) made overblown claims that the information could readily be requested under FOIA with little protection.  We have proof that these claims were ridiculous.

The terrorism watchlist was developed in 2004 and is maintained by the Terrorism Screening Center of the Federal Bureau of Investigation (FBI).  It contains around 400,000 individuals – over 1.1 million names and aliases.  This information is sent through the federal government to the Transportation Security Administration and the State Department among others.  Additionally, the FBI disseminates it to state and local law enforcement. [3]

In order to disseminate to state and local law enforcement, the FBI must first declassify the list so that individuals without a clearance, such as police officers, can access it.  To keep the information from the public, this information is labeled as CUI with a stamp that reads “for official use only.”

The real problem for the ODNI was that their office loses the protection of FOIA's Exemption 1 [4], national security information, due to the nature of the material being unclassified.  In court, judges generally defer automatically to the intelligence community on this exemption.  Michael Birmingham, a spokesman for the ODNI, elaborated that they were seeking to legislatively expand the list of FOIA exemptions for TII because “no [such] exemption currently exists under FOIA.”  The thing is the protections under FOIA are already adequate.

If the DNI’s reasoning was solid, then I could easily access the terrorism watchlist by submitting a FOIA request for the information.

And so I did.

The FBI promptly responded by refusing [3] to process the request until I could “submit either proof of death or a privacy waiver from the subjects of your request.”  How am I to do this if the list is not public anyway?  I clearly don’t know who is on the list and cannot ask them to sign a privacy waiver and am unable to know if any of them are deceased.  Anyway, this is a somewhat reasonable application of an exemption the ODNI claims does not exist – (b)(6) [5]; personal information affecting an individual’s personal privacy.

Further, if I am on the list and sign the privacy waiver for myself, how will it help me if I am a terrorist?  If that was the case, the FBI would likely invoke another exemption that supposedly doesn’t exist – (b)(7)(c) [6]; personal information in law enforcement records.  In this situation, the FBI did in fact do just that.   Moreover, we know that less than five percent of individuals on the list are U.S. citizens.  It should be noted that only U.S. citizens can attempt to use FOIA to obtain this information.

In essence, the ODNI was attempting to prevent this information from being subject to a court review if a private individual or entity wished to challenge the content of the watchlist.  This would merely allow the ODNI to be unaccountable for its mistakes that may have life-altering consequences for the wrongly accused.  In May 2009, the Justice Department’s inspector general found [7] that the FBI failed to update or remove watchlist records as required.  One individual even remained on the watchlist for nearly five years after the terrorism case against him/her had been closed.

Fortunately, the ODNI did not succeed with its attempts to influence legislators.   The Senate unanimously passed [8] the Intelligence Authorization Act on September 16, without the language amending FOIA.

Good job, Senators.

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