We filed this Freedom of Information Act lawsuit in November 2013, seeking release of the 6,300-page report of the Senate Select Committee on Intelligence (SSCI) about the CIA’s post-9/11 rendition, detention, and interrogation program, as well as a copy of the CIA’s official response to that report and a copy of the so-called “Panetta Review,” an internal response that reportedly contradicts the CIA’s official response.
The CIA filed a motion to dismiss, claiming that the report was a congressional document and therefore not subject to FOIA. We argued that it had become an agency document when it was transmitted to various executive agencies for them to use as they pleased. But the litigation was then held in abeyance for months while the Senate Committee and the CIA fought amongst themselves about what could be released. In December 2014 the Committee released the report’s lengthy Executive Summary, Findings, and Conclusions, along with the CIA’s official response. Litigation resumed, and in May 2015 the district court issued its decision, concluding that the rest of the report remained a congressional document and not subject to FOIA. Regarding our request for the “Panetta Review,” the court credited the CIA’s assertions that it was actually a series of draft documents that were protected by the deliberative process privilege. It therefore granted the government’s motion to dismiss (as to the report) and its motion for summary judgment (as to the review).
We appealed, and were supported by an amicus brief from former U.S. Senator John D. Rockefeller IV, a recent former chair of the SSCI. In May 2016, the court of appeals held that Senator Feinstein’s 2014 letter transmitting the report to the President and the heads of several executive agencies, urging them to use the report “as you see fit,” did not relinquish the congressional control of the report that had been specified in a 2009 agreement with the CIA. The report therefore never became an “agency record” subject to FOIA, and the court of appeals affirmed the district court’s decision denying our FOIA request. Our petition for rehearing was denied.
In November 2016, we filed a petition for certiorari with the Supreme Court. The government filed their opposition in March 2017. A month later, the Court denied certiorari.
Meanwhile, in December 2016, President Obama formally added the report to his collection of presidential documents that will be preserved under the Presidential Records Act, thereby assuring that it will be permanently preserved, even if it remains classified.
