“Prepublication review” refers to the policy under which many U.S. government agencies require past and current employees and contractors who have security clearances to submit any written materials that discuss their government service for agency review before public release. In March 2016, the National ACLU sent Freedom of Information Act requests to 19 federal agencies seeking records about the standards governing prepublication review and the way those standards are applied. Most disclosed no documents.
In June 2016, we filed this lawsuit against the CIA, the Departments of Defense, Energy, Homeland Security, Justice, State, Treasury, and the Office of the Director of National Intelligence, seeking their records on these topics, after which the agencies began making “rolling productions” of responsive documents. Over the course of the next several years, thousands of documents were produced, and the parties worked together to resolve disagreements about what could be withheld without involving the court.
Eventually, the only issue the parties were unable to resolve involved the withholding of the names of current and/or former CIA employees who had been granted an exemption from the Agency’s prepublication process “based on an established record of prepublication review compliance.” Believing these names might show favoritism toward current and/or former employees whose publications were favorable to the agency, we asked the court to order the CIA to disclose these names.
In a November 24, 2021 decision, the court refused to do so, ruling that FOIA Exemption 3, which covers records that are “specifically exempted from disclosure by statute,” applied because the statute creating the CIA provides that “the Agency shall be exempted from . . . any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency[.]” We argued that the CIA had waived this protection by allowing these employees to publish writings under their own names disclosing their CIA connections, but the court disagreed.
The only remaining issue in the case involves the illegibility of certain disclosed documents, which should be resolved soon.
