Recently, in Johnson v. CIA, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York sided with the CIA when she held that the agency was not required to produce classified information in response to a Freedom of Information Act (FOIA) request despite having earlier emailed that information to three journalists. This ruling could have the dual effect of strengthening the CIA's ability to rely on existing FOIA exemptions and encouraging the agency to share more information with the press.
In five email chains, the CIA's Office of Public Affairs disclosed certain classified information to three well-respected national security journalists. The disclosure went through and was approved under an agency-sanctioned "selective disclosure program"—in other words, the CIA press office.
The information indisputably was classified, the three journalists were not authorized to have access to it, and they did not publish any of it.
Adam Johnson, an independent journalist and contributing analyst for a progressive media watchdog organization, filed a FOIA request with the CIA for the contents of those emails. The CIA denied Mr. Johnson's request, asserting that it was not required to disclose the information under both Exemption 1 (information authorized to be kept secret in the interest of national defense or foreign policy) and Exemption 3 (information specifically exempted from disclosure by statute—in this case, information that could be withheld to protect intelligence sources and methods under the National Security Act). Mr. Johnson then filed suit under the FOIA requesting production of the emails.
Judge McMahon quickly cut to the heart of the matter—whether the CIA's voluntary disclosure of the information waived its ability to rely on the FOIA exemptions. Consistent with the judiciary's frequent deference to the Executive on issues of classification and national security, Judge McMahon held that the CIA had not waived its right to invoke FOIA Exemptions 1 and 3 because the classified information had not become "truly public."
Despite the fact that the CIA had emailed the information to the three journalists who were not authorized to view it, the plaintiff could not show that the information he sought had made it into the public domain—it had never been published, and there was nothing to suggest that the three journalists ever printed copies of the emails or shared them with anyone.
Judge McMahon's ruling has two principal effects. First, it bolsters the government's ability to deny FOIA requests. Despite what the judge called "CIA's carelessness" that "appears to have ignored every safe harbor the courts have afforded it," the CIA now has a judicially sanctioned justification to selectively disclose classified information to certain members of the public without waiving any FOIA exemptions. Second—and more subtly—Judge McMahon's order gives the CIA and other intelligence agencies a legal authorization to share classified information with members of the press.
Attorneys in Ballard Spahr's Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group stands ready to help clients navigate challenging media law issues across all platforms and industries.
Copyright © 2018 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.