asked this question, is it sounds like a joke, but if you -- it is safe to say that, over the history of foia, the cia has been responsible for most of the things that are wrong with foia case law as far as requesters are concerned, because intelligence agencies are generally the ones who withhold the most information and they're generally the ones who push the envelope for what they can do with it, and so if you look back on all of the court decisions that are in favor of greater withholding, and you track that back, you'll most likely find a case that says somebody, vcia, morely v. cia. that's the only one i can think of. i think of long v. cia has one.

what happens is that the cia will go and make an argument they're allowed to withhold x, y, z and they'll say because we're the cia and national security is really important because we don't want people who are against our national security to hurt us. and if they say that enough, they'll get a judge who will then give them benefit of the doubt and withhold the records, and then some other agency will see this opinion, do the same thing, cite to the previous opinion, and that judge will look at it and go, oh, this issue has already been decided, and decide for the agency, whatever other agency, hud, agriculture, you know, what have you. in the new case, without taking notice of the fact that the reason the cia won in the first case was because it was the cia,

and so now you have two cases saying that something can be withheld that was never withheld before, and then it just snowballs from there. and so i think that picking the cia was a strategic choice to try and head off some of the most onerous foia practices that we had seen in many agencies, and they ranged from simple things, like not identifying the exemptions that they give on a redaction by redaction level. the cia has this wonderful policy and they actually, they have a document in their reading room that talks about this policy, that if you get 100-page cia document, it will have at the top of the first page of the

document b1, b3, b5, b6, b7, c, and then it will have 8 million redactions, none of which are marked, because the cia believes that it only has to identify redactions on a document level, and that this is not specific to any particular document, that this is a policy you do not have to identify individual redactions. they also have a policy that says if they withhold documents in their entirety, they don't have to tell you anything about them, and that means they don't even have to tell you how many there are. there's pretty well-established foia case law that says that an agency has to estimate the number, the pages, the number of documentation, the square feet in a drawer, something of the records withheld in their entirety and the cia says no, we don't. and they will do things like say

we have withheld records based on exemptions b1, b3, and/or b5, and/or b6, and/or b7, and b 8, and it leaves absolutely no short of litigation to nail down kind of what they're talking about. the requester has no idea which exemptions are even being claimed for these withheld documents, and of course, they don't give etas. that was one of the other things. that actually i'm hoping because these cases are also before judge hough, i would hope she would not change her mind on ruling on muddit and the cia case and that posse, so she's a judge, she can do what judges do. they consider different levels of evidence for different agencies. but now that i think about it, of course my time is running

out, i'll answer specific questions about the policies and practices in particular. you can -- all of our cia cases are on our website, nationalsecuri nationalsecuri nationalsecurity.org/litigation. personally i don't really like the idea that nobody did anything with payne from payne until the cia cases. given how many times agencies make the argument in one case, lose, and say the request is for records about tank use in libya, and they will make an argument that something is redacted, and the judge will go against them, then they will withhold the same information from another request

about tank use in somalia, and if you raise the argument in your litigation that this was already decided in the previous case, they'll say no, that had to do with libya. that was just specific to that one particular case, and has no bearing on whether or not we can withhold information about tank use in somalia. that is a trend that should not be allowed to continue, and i think that everyone who litigates foia, if they find themselves running into the same problem over and over and over again should file, it's a horribly unintentional pun, they should ask for payne relief. i didn't create it. it's something that there's no easy way around it, but they should file a four account complaint with three requests and a fourth count that says,

"and overturn the pattern or practice of doing this thing," and it should be not just for exemptions. it should be for using cut-off dates that they're not allowed to use. it should be for refusing to process cross-references. it should be for invoking exclusions when they're not allowed to. if you see something -- i don't want to say something. if you see something that is happening over and over and over again, it's going to continue happening over and over and over again until a judge says thou shalt not do this anymore, and until then, i think if you get enough of those rulings, maybe ochez will have something to work with. they'll be able to tell these agencies, you know, if they sue you, you're going to lose, and you may be sanctioned if you're violating a court order. >> thank you, kel.

and our final panelist is sue long, who in addition to being the newest foia legend award recipient, is the co-director and co-founder of the transactional records clearing house. i'd like to say how valuable a resource that has been for me, personally. it's really incredible, and i enjoy so much working with david burnham, your partner, and you know if it's not the website that you go to frequently, you should, because it's incredible, the uses you can put that data to. so sue, thanks again for filling in for david. >> yes. david, who was supposed to be sitting here, is having surgery today, so he sends his apologies and sent me in his stead. in the context of this panel, i wanted to talk briefly about two

cases. one involving whether or not an agency can simply declare that a whole body of records aren't subject to foia or not, but not within, you know, cia, national fence but sort of in ordinary, ordinary circumstances, which we are looking for somebody to take on a pro bono case on because, you know, we've reached the end of the line on it despite a really, really long, long path, trying to avoid it, and the other one, a case that publicity zen litigation group and adina who i believe is going to be on a panel this afternoon, is our attorney on, which is now in the

second circuit. so let me talk about the second circuit, and the disappointment essentially in the attorney general holder's finding, you know, directive, not having any teeth. this is a case against the office of personnel management. since 1816, you know, a record that lists who is a federal employee, how much they get paid, and where they work has been a public record, but that stopped, and about 40% of those in our litigation and subsequently it's gone up, because new agencies get added as to sensitive agencies, and indeed the latest agency, and

this came in just right after obama took office, is u.s. attorney's names, you know, those, those secretive individuals have a right of privacy, and their names should not be disclosed, as well as any assistant u.s. attorneys, okay? oh, law enforcement, sensitive. so there is sort of how far they are stretching the argument is political appointees, if it's sensitive, don't have to be disclosed, because they have, you know, they're sensitive, and there are they have a right of privacy. and including the secretary of defense, in our litigation, okay. secondly, they are arguing that

the right of privacy extends to anonymous statistics. so this is really interesting, so they say, well, if the original data, even though it's anonymous, related to individuals, and what data doesn't? i don't think the government could open its mouth much if in fact it couldn't reveal it, okay, doesn't have to be identifiable to any individual, you know, so absolutely no way to tell what individuals it related to, but nevertheless, the person retains the right of privacy with respect to that. hugely, and in the world of databases, which is my world, you know, that's everything. just think about what you think you know about what the federal government is doing. it's really hard to imagine

applying that and how the public harm causing it. straight faced argument. and indeed another thing about weighing the public interest, because of course, in a privacy right, there is the weighing, you know, of public interest, questioned that the public interest included the idea of being a watchdog or seeing what government was doing, well, that was obviously not part of the intent of the freedom of information act, and look at these government documents that are published? the public should be satisfied with this. what purpose is it to disclose extra information? really, really, really far out, and so it's a very disturbing trend, how aggressive that argument is being taken. so we'll see what happens. it's before the second circuit and has been fully briefed.

the other case is records that exist but aren't available, and this concerns the immigration and customs enforcement agency, and as part of the reorganization to homeland security, clearly all these agencies coming together with all their separate data bases is a real mess, right? so i.c.e. was given the authority for large sectors to bring all of this together in a coherent home, all very rational purpose. and so data that used to be available, they migrated it to their new enterprise integrated database, and guess what? nothing in it is available to the public. the question, what really

exists? we got all the documents concerning documenting exactly what is in there or at least what they say is in there, you know, the tables, the whole techie kind of description of how you would pull it out, you know, name and number and decided okay, we're not going to ask about people, not about investigations, there's a lot of public interest and concern about detention facilities. it's a really thriving, newci b people in the inspections of them as to whether or not they are, you know, meeting their standards, so there's a table that reports that. we're talking about not textural information, just did they get a one or a two or a three, that kind of stuff. how much of they paying per bed and really sort of basic kinds of things. and the response, and we gave them exactly a copy of the

documents we had gotten from them, identifying exactly those tab tables, exactly the fields, excluded anything that might involve a person or any arguable kind of a thing about who entered the data or something like that, and guess what? they said brown recognized this, and so we got back a sheet of paper and they declared it a full release, this is 100% and pieces of paper we had gotten before essentially and had used but no actual data, just the same description that we had asked for before, and not as complete as we had gotten before. so we afield it administratively and gotten back the response, turning us down and said essentially well it's not

searchable. it's not searchable. they can't get data out of it a zillion times a day because they can't live without it, you know, but we haven't built a public end phase to it so not available. >> great, thanks very much. i'd like to open it up for questions but one question that i have that is interesting, you know, working on it, on the policy side where you have policy wins that are only undermined by practice changes in two different cases, true and kel, that has to do with the way these are plied. so drew, could you address? >> sure, one of the issues we faced is the dreaded document dump. it's happened before, open government act but the open government act was supposed to say if you file a litigation and there's a document dump at some point in that litigation substantially changing the position, you can get fees, and

there's been ways that there's two kind of ways that the government's sort of gotten around it and it's troubling. the first way is early in the litigation i've seen it where they give you documents and say this is a continuation of our appeal. you constructively exhausted at the appeal level, you filed a lawsuit, you never heard back, and then months later you get a document dump not from the people you're litigating with but directly from the agency as if they didn't know the litigation was going on. the other way is prior to or with sumly judgment you get a large document dump that has been used at least in my instance to neuter your summary judgment brief, where they give all the stuff that you would have won on but for the document dump. so if you were going to win on this particular exemption that was clearly inappropriate in

this instance, they'd unredact and you lose summary judgment. so in order to get your fees, you have to at least in the d.c. circuit you have to prove you're entitled to the fees. a case from last year said that, and so to prove that, you have to prove the agency's withholding was reasonable and to prove that you have to do another summary judgment brief. there you are going back and doing more litigation when really it should be the open government act says you should get fees so that's a problem. >> kel with a different application. >> yes, on to the, i thought you were going to talk about how they will say oh, yeah, we'll be happy to give you the records. it will cost you $20,000 for duplication and search fees. that's what i've been running into and a lot of requests have. you'll hear these horror stories in the web. there was a case out west somewhere, i want to say it was in iowa or something where a

local government had filed a foia request to the post office about the closing of of the post office. they got a letter back that said we have estimated that this request will cost $462,124.38. and we'll begin processing your request. and trust us, that we came up with a good number basically. agency also do that but they'll also do something a little bit more insidious, i think, where they will do something along the lines of, the cia just did this in one of the c cases, where we filed a foia request for records which would indicate which ten

requesters submitted the most requests in a couple fiscal years. we gave several options. we said you can give us just those ten, depending on how you can short your database, you can give us a daybase listing of the foia log from those ten. you can give us, if you can't sort by that, you can give us your foia log and we'll go through and figure out which ten there are. the problem with that is the cia every time you ask them for a foia log they give you the foia log that doesn't list the name of the requester. it's as though that's not a field in their foia database which is really sort of bizarre and that was in darrell issa's letter yesterday when it did the report card for agencies, and it noticed that the cia did not give names of requesters in the foia log, and then they said or,

if you have to, but this is really disfavored, you can give us a copy of every request you've received for the last four years. and they said we cannot determine what information you're looking for, so we're going to refuse to process this request, it's not reasonably describing the records sought. that was one of the policy challenges that we were fighting against. and then they briefed in a motion to dismiss. this is why it's vague. and then they briefed in a motion for summary judgment why that particular request was vague. i opposed it, and then they reversed their position, sort of. they said we will now process this request. we will only give you the every request letter we've received. that will cost approximately

$10,000. do you wish to pay now or later? and along the lines of what some of the other people have been talking about today, they took the fact that they don't normally put the names of requesters in foia logs as an out for, so we're not going to do that. we're going to insist on doing it the most time-consuming and expensive way possible. the nsa did this a couple years ago, where an nsa official actually told me when we were arguing over how they should do e-mail searches, they had one analyst who went through and read each of her e-mails to figure out which ones were responsive and didn't use the search function. i said you can't do that. you have to use the search function and she said no, there is no restriction that we must use the most efficient method and charge you for it.

i don't know where to go with that one. that's what agencies will do, they'd hide behind fees and actually our most recent case that we filed a couple weeks ago is actually a class action case against the cia, because not on foia, because it's almost impossible to do a foia class action, but the cia passed a new regulation that allows it to -- i have to backsecond. in addition to foia, and if you want more information on this, i suggest you go to the national security or kifz website. they have volumes about it. with respect to classified information, there's an additional review process called mandatory declassification review, and this is created by an executive order as opposed to a statute and it basically says that if you have a classified

document, you can ask the agency to declassify it. and if they don't, you can appeal that to a body at nara, called the interagency security classic appeals panel, iscap or ifcap, i've heard it both ways and iscap will do a de novo review of the document and declassify it or classify it and they have an amazing release rate of something along the lines of 60% or well, mdr there's nothing in the executive order that says anything about fees. the cia decided well there should be and they passed a new regulation. they did not put it through notice and comment. they just said it's a rule, stuck it out there and says, if

you do not agree to pay the total search, review and duplication cost, we will not process your request, because i guess they got tired of being of being overturned by iscap and filing mdr requests. they not only violated by not going through notice and comment, but there's actually a supreme court case out there that says you can't do this. there's a law called the inpent appropriations act when agencies cite their fees. the ioaa says governments can charge fees for things that businesses would charge fees r for. and the supreme court in '74 said yes, that's allowed.

it's a clear statute but they can't charge fees for things that benefit the public generally just because one person asked for it. there was a case about the fcc where one cable provider had asked for something about cable lines and the service would have benefited all cable companies and all tv watchers basically. i can't think of a more public service than declassifying things that aren't classified anymore and yet now -- and they won't even give us numbers. they'll say whatever we decide to charge you, you have to agree to pay it up front or we won't look at it. >> i think the reason people aren't asking questions is because lunch is next. one last thing, jeff, quickly. you now, state and local law enforcement is involved in the intelligence game a little bit and you've been involved in some foias with state and

particularly here in d.c. how is the process different and are they better at doing it? >> there's a lot of variation in state open record -- oh -- there's a lot of variation in state open records laws. i've done quite a bit of litigation in d.c., and a lot of times you can find out information that would not be redacted by the fbi, if you had done a request, because some of the provisions are a little bit different under state open records laws. so for example i was able to find out what databases the mpd has access to that are provided to them by the fbi. you can also find out for example the fbi, i believe it's the fbi that maintains a system called guardian that has classified information, but there's a similar version that state and local law enforcement has access to called eguardian that contains unclassified information, so you can get information often through that

system because it's unclassified, going through state open records laws. so sometimes it's helpful to do a duplicate search through a state or the district if you know they're likely to have relevant information. often i get e-mails to district police officers from the fbi, which i would never would have gotten if i had requested them directly to the fbi. >> perfect. i'm afraid we're out of town. sue, again congral lagss on your award and i thank everybody here, folks, for your participation on the panel and for the great work that you do that make the work that much easier. >> thank you. [ applause ] >> former justice department official richard huff spoke about the history of the freedom of information act at this american university law school forum. he served as the justice