Presidential Tweeting Stirs Up Freedom of Information Act Controversy

Written By Hannah Redmond

Last week, a lawsuit was filed against the Central Intelligence Agency (CIA). The suit stems from a tweet made by President Donald J. Trump. On October 19, 2017, an investigative reporter for BuzzFeed, Jason Leopold, together with BuzzFeed, Inc., filed suit against the CIA. Their issue? The CIA failed to produce documents Leopold requested under the Freedom of Information Act (FOIA).

Background

On September 12, 2017, Plaintiffs submitted a FOIA request to the CIA generally seeking all documents, emails, Congressional correspondence, and records “mentioning or referring to CIA payments to Syrian rebels fighting Assad.” Plaintiffs received confirmation from the CIA that their request was received. However, Plaintiffs never received the information they requested.

Plaintiffs’ request was prompted by a tweet sent by President Trump on July 24, 2017. The tweet read, in full: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad[.]”

In July of 2017, it was widely reported that the Trump Administration ended a government program to fund “vetted Syrian rebels in the war against the regime of Bashar al-Assad.” This funding was the subject of much conversation and was generally known to the public. However, before President Trump’s tweet, it was never publically acknowledged by a government official. The program, which started under President Obama’s Administration, helped train, arm, and compensate “insurgents” to fight extremist forces such as the Assad regime. Ending the funding is akin to cutting off “non-extremist opposition to Assad in northern Syria.” Even before President Trump ended it, the covert program was not a massive operation, but a “narrow” one aimed at “apply[ing] just enough pressure to convince [Assad] to accept a political solution.”

Taking issue with the Washington Post’s representation of his involvement in ending the alleged funding, President Trump took to Twitter to accuse the newspaper of disseminating false information. Unlike some of President Trump’s other tweets, Leopold says the issue with this specific tweet is that President Trump seems to acknowledge both the existence of a United States program to make payments to Syrian rebels and his decision to end it. Plaintiffs argue that the tweet “constitutes official acknowledge[ment] that the United States had been making payments to Syrian rebels fighting Assad.” They assert this official acknowledgement waives any protection of information and documents relating to its funding, thereby requiring FOIA disclosure.

The Freedom of Information Act

Under FOIA, an agency has 20 days from the receipt of a request to determine whether or not to comply by producing the requested information. If an agency fails to comply with FOIA’s time limit provisions, the requesting party will be deemed to have exhausted their administrative remedies. They can subsequently commence an action in federal court. Because the CIA did not timely reply to Plaintiffs’ request, Plaintiffs were able to commence this present action.

Disclosure Exemptions Under FOIA

FOIA provides for several exemptions, wherein agencies are not required to release the requested information. Specifically, information that is confidential, privileged, classified to protect national security, or would invade another’s personal privacy, are among the nine codified exemptions. Here, Plaintiffs only asked for information that is not subject to an exemption. Per Plaintiffs’ interpretation, President Trump’s tweet constitutes a waiver of the exemption pertaining to matters of national security. Because President Trump publically referred to, and impliedly confirmed the existence of, a United States program aiding Syrian rebels to fight Assad, Plaintiffs argue that President Trump essentially declassified the relevant documents.

Application of FOIA to this Case

It is true that federal courts have held that “voluntary disclosure in one situation can preclude later claims that records are exempt from release to someone else.” In Nat. Res. Defense Council v. U.S. Dep’t of Defense, for instance, the court held that the Department of Defense must disclose two documents being withheld under a FOIA exemption. Because the two documents at issue were “provided to a non-government lobbying entity,” they were not exempt under FOIA. For their rationale, the court cited the oft repeated rule that voluntary disclosure waives later claims of exemption. That these documents were allegedly leaked was of no moment to the court’s decision.

Because cases like Nat. Res. Defense Council v. U.S. Dep’t of Defense tend to involve disclosure of specific information to one party, whilst denying the same information to another party, the present case may be distinguishable. The tweet in this case did not involve disclosure of any specific information to one party versus another. President Trump’s tweet may have officially acknowledged a covert government program, but the program was already widely known to exist, and the tweet offered no substantive information about the program. Furthermore, because it was a public statement, there was no selective disclosure; all the world gleaned the same information (or lack thereof) from the tweet.

Of course, this is not the first time the President has taken to Twitter to address matters of national security. However, if the CIA is compelled to disclose the requested information, the result could stir up quite the controversy.

On a related note, this is not Leopold’s first time challenging an agency’s failure to comply with his requests under FOIA. Leopold has been called a “FOIA terrorist” by media sources such as Poynter because of his reputation for compelling disclosures under FOIA. In fact, it was Leopold who sued for the release of thousands of Hillary Clinton’s emails.

Conclusion

At this point, it is unclear what the outcome of this suit will be. FOIA emphasizes making the “fullest responsible disclosure,” meaning that FOIA wants to provide parties with the information they seek whenever doing so is possible. That being said, it seems unlikely that Plaintiffs’ full request will be granted, as the requested documents are likely classified as matters of national security. When full disclosures cannot be made, FOIA requires partial disclosure of requested information—that which is not subject to one of the exemptions. With that important mandate, perhaps the court will decide the Plaintiffs are entitled to a partial victory. Only time will tell.

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Sources Cited

5 U.S.C §§ 552 (a)(3)(A), (a)(6)(A), (a)(6)(C)(i), and (b).

Complaint, Leopold et al. v. Central Intelligence Agency, (No. 1:17-cv-02176) (D.C. Oct. 19, 2017).

Chuck Stanley, BuzzFeed Says Trump Tweet Opens CIA’s Syria Docs to FOIA, LAW360 (Oct. 20, 2017, 4:35 PM).

Benjamin Mullin, BuzzFeed News hires ‘FOIA terrorist’ Jason Leopold from Vice News, Poynter (Jan. 3, 2017).

Faysal Itani, The End of American Support for Syria Rebels Was Inevitable, The Atlantic (Jul. 21, 2017).

Lieber v. Bd. of Trs. Of S. Ill. Univ., 680 N.E.2d 374, 379 (Ill. 1997) (citing Cooper v. Dep’t of Navy of U.S., 594 F.2d 484, 485­–46).

Cooper v. Dep’t of Navy of U.S., 594 F.2d 484, 485–46.

Nat. Res. Defense Council v. U.S. Dep’t of Defense, 442 F.Supp.2d 857, 866 (C.D. Cal. 2006).

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