Plausible Deniability: Selective Disclosure of Information and FOIA

by Bernard Bell — Thursday, May 17, 2018

Unofficial leaking has been in the news recently, and is never far away from public consciousnesses.  But “[g]overnment officials and military officers, from the President on down, routinely authorize leaks for policy or political purposes.”  Jack Nelson, U.S. government Secrets and the Current Crackdown on Leaks 2 (2002), accessible at, https://shorensteincenter.org/wp-content/uploads/2012/03/2003_01_nelson.pdf?x78124. Suppose intelligence officials want to ensure that inaccuracies in a story regarding an intelligence operation are corrected or that the story is delayed by selectively disclosing information to the journalist doing the story?  Or suppose a law enforcement agency wants to assure civil rights advocates that it is conscious of their concerns by selectively disclosing guidelines governing its operations?  By doing so, would those officials forfeit the Government’s entitlement to invoke the appropriate FOIA exemption if that information is sought by a FOIA requester?

Chief Judge Colleen McMahon of the Southern District of New York took on the issue recently in Johnson v. U.S., 2018 WL 2085655 (S.D.N.Y. April 26, 2018)(“Johnson IB”), after initially asking for supplemental briefing, Johnson v. U.S.,2018 WL 833940 (S.D.N.Y. Jan. 30, 2018)(“Johnson IA”).  Not only was the issue briefed by the Government, but five major transparency groups, the Government Accountability Project, Government Information Watch, National Security Counselors, Demand Progress, and the Project on Government Oversight, collectively submitted an amicus brief on Johnson’s behalf.

In general, disclosures made pursuant to FOIA requests cannot be limited to a select group, see, e.g., Maricopa Audubon Society v. U.S. Forest Service, 108 F. 3d 1082, 1088 (9th Cir. 1997), but must be available to the general public upon request.  Thus an agency cannot enter into a confidentiality agreement with a FOIA requester limiting further dissemination of documents provided.  Yonemoto v. Department of Veteran Affairs, 686 F. 3d 681, 689-90 (9th Cir. 2011).  But these principles are not so absolute when the Government engages in selective disclosure outside the FOIA context.

Johnson began with the CIA Office of Public Affairs’ disclosure of classified information to national-security journalists from the New York Times, the Washington Post, and the Wall Street Journal in a series of five emails.  Another journalist, Adam Johnson, made a FOIA request for those emails.  The CIA produced the documents in redacted form, invoking FOIA exemptions 1 and 3 to support its redactions.

Selective Disclosure as “Official Acknowledgement.”  Johnson turned on the scope of the “official acknowledgement” doctrine, or as the District Judge termed it, the “public domain” doctrine.  Johnson IB, 2018 WL 2085655 *3.  Under that doctrine, the government forfeits its entitlement to withhold a document if it has officially acknowledged the information contained within it. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). These cases often involve claims that government officials’ public statements constitute official acknowledgement.  See, e.g., ACLU v Dep’t of Justice, 808 F. Supp. 2d 280, 286, 293-94 (D.D.C. 2011) (rejecting argument that public statements of CIA Director Leon Panetta constituted official acknowledgement).

However, the D.C. Circuit had held as early as 1981, in Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981), and Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981), that in certain circumstances the CIA could selectively disclose information to particular journalists without forfeiting FOIA protection.  Johnson IB, 2018 WL 2085655 *3.  In those cases, the CIA had made the selective disclosures to discourage misreporting that might compromise intelligence sources and methods.  Id.  The D.C. Circuit had subsequently formalized the official acknowledgement test in Fitzgibbon v. CIA.  To prevail on a claim of official acknowledgment, the plaintiff had to establish that the information requested: (1) was as specific as information previously released; (2) matched information previously disclosed; and (3) had already have been made public through an official, documented disclosure.  Fitzgibbon v. CIA, 911 F.2d at 765. The Second Circuit had adopted that Fitzgibbon test in Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009).

In Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999), the court explained that a FOIA plaintiff could establish the third Fitzgibbon requirement, only by establishing the existence of a “permanent public record” of the exact information sought, making efforts to keep the information confidential futile. Johnson IB, 2018 WL 2085655 *5.   The Cottone Court denied plaintiff’s request for wiretapped recordings of conversations between himself and undercover FBI agents. The tapes had been turned over to Cottone’s counsel during pre-trial discovery.  Nevertheless, Cottone’s claim was rebuffed because a “constitutionally compelled disclosure to a single party simply does not [cause a document to] enter the public domain.”  Id., at *5 (quoting Cottone, 193 F.3d at 556).

Safe Harbor Rules for Selective Disclosure.  In Students Against Genocide (SAGE) v. Department of State, 257 F.3d 828 (D. C. Cir. 2001), Muslim Advocates v. United States Department of Justice, 833 F.Supp.2d 92 (D.D.C. 2011), and Judicial Watch v. DOD, 963 F.Supp.2d 6 (D.D.C. 2013), courts within the D.C. Circuit created a “safe harbor” that allows intelligence and law enforcement officials to protect their sources and methods by engaging in selective disclosures without fear of waiving FOIA protection.  Johnson IB, 2018 WL 2085655 *6, 9.  In particular, agency officials could show or convey classified or statutorily‑protected information to third parties so long as they did so in a way that would not allow the recipients to retain it in haec verbaId., at *9.

Thus, in SAGE, U.S. diplomats had shared intelligence photographs in confidence with representatives of other nations on United Nations Security Council.  Id., at *6.  The court had noted particularly that the photographs had not been “released,” but only briefly displayed to persons who lacked the technical expertise to assess the technical capabilities of the reconnaissance systems that took the photographs.  Id.  In Muslim Advocates, the FBI afforded a small number of representatives from civil rights and civil liberties groups two hours to review its Domestic Investigations and Operations Guide. The representatives were permitted to take notes but could not copy any part of the Guide.  Id., at *7.  This procedure, too, was found to fall within the safe harbor for sharing information without making it publicly available.  Id.  In Judicial Watch v. DOD, the CIA revealed the identities of the Navy SEALs and CIA officers involved in the raid that killed Osama Bin Laden to the filmmakers of the movie “Zero Dark Thirty.”  Id.  Because the filmmakers had not further disseminated the information, enforcement of the exemption could still fulfill its purpose of keeping intelligence sources and methods secret, and thus was not futile.  Id., at *8.  Thus, that disclosure too fell within the safe harbor.  Chief Judge McMahon observed that “[t]he linchpin of [these] ‘safe harbor’ decisions . . . is what we used to call “plausible deniability.”  Id., at *9.

The District Court’s Analysis of the CIA’s Selective Disclosure in Johnson.  Chief Judge McMahon noted that in Johnson the CIA had arguably strayed from the safe harbor defined by SAGE, Muslim Advocates, and Judicial Watch.  The CIA had sent the classified information to the reporters in a manner that allowed them to retain it in haec verba in tangible form, namely via email, rather than by merely showing it to them.  See, id., at *10.  Even though the reporters had not disseminated the documents, they had presumably been free to exercise dominion over them.  Id.  The Court noted the lack of any evidence that the reporters had retained copies of those emails, or “that the emails still exist in unredacted form anywhere except at CIA headquarters.”  Id.  However, the Court noted, even deleted emails “can be reconstructed—whether by information technology professionals in the private sector or working for law enforcement, or even by nefarious hackers—into the original messages.”  Id.  Nevertheless, any continued existence of the emails on the newspapers’ non-secure servers was insufficient to establish a “permanent record” sufficient to make the documents a part of the public domain.  Id.

For material to be public, it must be accessible by members of the general public. Id., at *11.  Even on the newspapers non-secure servers, the CIA emails can be accessed only by (1) the three reporters, and (2) authorized IT professionals at the reporters’ newspapers.  Id.  A member of the public could access the emails only by hacking into the newspapers’ servers.  Documents that can be accessed only by stealing them (whether off of a server or out of government filing cabinets) should not be considered to have entered the public domain.  Id.

In short, the District Court held that the CIA could invoke exemptions 1 and 3 of FOIA despite the agency’s selective disclosure of the information sought to New York Times, Washington Post, and Wall Street Journal reporters.

Potential fracture lines within the transparency community.  This issue has the potential to fracture the transparency community.  All elements of the transparency community will no doubt recognize the risk that selective disclosure allows government officials to manipulate public perception of the government, by anonymously leaking incomplete information to favorable journalists.  But journalists from prestigious press organizations or those who have been particularly adept at developing high-level government sources might also see the appeal of a FOIA jurisprudence that accommodates selective disclosure.  Permitting selective disclosure encourages a voluntary flow of information that helps them “break” major stories.  Other reporters, government watchdogs, and other non-journalists who use FOIA but either lack such high-level governmental contacts or do not focus their efforts on “breaking” stories, have less of an interest in encouraging privileged disclosure in a way the permits the Government to continue to withhold information from others.

In any event, an appeal of Johnson v. CIA to the Second Circuit can be expected.

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About Bernard Bell

Professor of Law and Herbert Hannoch Scholar Rutgers Law School

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