(SANITIZED); DECLARATION OF ALAN W. TATE

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0001090010
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 23
• Document Creation Date: June 23, 2015
• Document Release Date: October 13, 2010
• Case Number: F-2010-00465
• Publication Date: April 16, 2004

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
H. RAY LAHR,
Plaintiff,
v. ) No. CV 03-08023-AHM
NATIONAL TRANSPORTATION SAFETY)
BOARD and CENTRAL INTELLIGENCE)
AGENCY,
Defendants.
DECLARATION OF ALAN W. TATE
I, ALAN W. TATE,.hereby declare and say:
1. I am the Acting Chief, Public Information Programs
Division, Information Management Services (PIPD/IMS), for the
Central Intelligence Agency (CIA or Agency). I have held this
position since 26 March 2004, at which time I also became Acting
CIA Information and Privacy Coordinator (Coordinator). I have
served with the United States Government for over 30 years, and
in addition to my current positions, I have held other
supervisory positions with the CIA in the fields of records
management and information review and release.
2. In my capacities as Acting Chief, IMS/PIPD, and
Information and Privacy Coordinator, I am responsible for, among
other things, managing the Freedom of Information Act (FOIA),
APPROVED FOR
RELEASE^ DATE:
17-Sep-2010
 Privacy Act (PA), and Executive Order 129581 (E.O.) Mandatory
Declassification Review (MDR) programs in the CIA. This
function includes directing the searches of CIA records systems
pursuant to public requests for records under these programs and
directing and coordinating the reviews of any responsive records
retrieved as a result of such searches. This review process
includes undertaking any intra-agency and inter-agency
coordinations and referrals necessary in light of the
information in any responsive records. As.part of my official
duties, I ensure that administrative processing, including the
search, retrieval, analysis, review,
redaction, and release
phases are effected consistent with the Agency's legal duties
and as efficiently as possible with the personnel and resources
available.
3. Through the exercise of my official duties, I have
become familiar with plaintiff's request for information that is
the subject of this civil action_ i make the following
statements based on my personal knowledge, information made
I Executive Order 12958 was amended by Executive Order 13292, effective I4arch
25, 2003. See Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 28. 2003).
All cites to Exec. Order No. 12958 are to the order as so amended.
2 A "coordination" occurs wher. a CIA-originated document contains information
from another agency and the CIA contacts the other agency to obtain guidance
on whether to release or withhold that agency's information. A "referral"
occurs when the CIA possesses document(s) that are responsive to a FOIAIPA
request but that originated with another agency. In such a case CIA refers
the document(s) to the originating agency for it to process and respond to
the requester.
2Q -
 available to me in my official capacity, and the conclusions I
reached in accordance therewith.
4. The purpose of this Declaration is to provide a
description of the CIA's process for responding to FOIA and PA
requests and to explain the Agency's need for a reasonable delay
to complete its processing of plaintiff's request. I include in
my description the additional administrative burdens imposed by
the nature of both the,records systems involved and the
information at issue, including the necessity of referring
records to various CIA components as well as to other agencies
to ensure that no classified information or otherwise. exempt
information is inadvertently disclosed, and the-status of
plaintiff's request vis-a-vis other FOIA requests. I also
provide an estimate of the time necessary to complete processing
of plaintiff's request.
5. During the past few years, the CIA has implemented
numerous and far-reaching initiatives to reorganize its
information review infrastructure, implement technological
improvements, and dedicate additional personnel to information
review duties. All of these initiatives have been aimed in part
at reducing the Agency's backlog of pending FOIA requests.
Indeed, as detailed below, these efforts have met with
significant success; the Agency reduced its FOIA backlog from
 Fiscal Year (FY) 1999 to FY2003 on average about 17 percent
annually.
6. The nature of the intelligence business, including the
compartmentation of records and the need to protect intelligence
sources and methods, renders record searches complex and
information reviews multiple and exacting. Each page located
during a search pursuant to a FOIA request has to be reviewed to
determine whether it is in fact responsive to the request.
Those records that are responsive then have to be carefully
reviewed line-by-line to identify whether any classified or
otherwise exempt information must be protected from release, and
to ensure that nonexempt information is released if that
nonexempt information is reasonably segregable from the exempt
information. The reviewers must further determine whether
information identified as classified still requires protection
in the interests of national security or is such that it can be
declassified and released. Further, reviewers must also
determine whether the records in whole or in part must be
referred to other components within the CIA and/or to other
federal agencies that may have equities in the documents. Upon
referral, these entities must also conduct a line-by-line review
to determine whether any information is properly exempt from
disclosure. Individuals in my office must then incorporate all
recommended redactions, conduct a review from a corporate (vice
 component) perspective, identify and resolve any conflicts
between components regarding the exempt status of any
information, and produce an integrated final copy of each record
before responding to the requester.
7. These procedures, discussed in more detail below, are
time-consuming, but essential in order to avoid inadvertent
disclosure of exempt information. In responding to FOIA
requests, the overwhelming majority of the CIA redactions are
based on FOIA Exemptions (b)(1) and (b)(3). By definition, an
error on the part of the CIA that leads to the disclosure of
such exempt information would reveal information about
intelligence collection, sources, methods, or capabilities and
thereby could reasonably be expected to damage this country's
national security. Accordingly, the utmost care must be given
to ensuring proper and thorough review of responsive documents
before they are released to a FOIA requester.
8. Based on these factors, the complex nature of
plaintiff's request, and the extent of multiple and other agency
information, and considering its current FOIA and PA backlog and
other information review demands, including the number of other
FOIA cases currently in litigation with the CIA that have court-
ordered deadlines that Agency FO-.A officers are laboring to
meet, my best judgment is that the CIA will require eight months
to complete the initial phase of processing of plaintiff's
5
 request. By initial processing, I mean that the CIA will have
searched for, retrieved, and reviewed all potentially responsive
documents, identified which of those documents require
coordination and/or referral, and forwarded those documents for
any additional review required either internally to other
directorates or components at the CIA or to other agencies. It
is difficult to estimate with any high degree of accuracy how
long the coordination/referral process will take until the
Agency has completed the initial processing phase and knows how
many documents are responsive and whose information is involved.
My best estimate at this time is that the CIA could complete its
release or withholding determinations with respect to CIA-
originated documents, which do not require coordination with
other agencies and respond to the requester within two months of
completion of the initial processing phase for a total of ten
months. We cannot provide an estimated completion date for
documents, if any, which must be coordinated with or referred to
third agencies since we cannot speak to non-Agency equities,
procedures, or information review demands.
9. in sum, in my best judgment, the CIA can complete
processing of CIA-originated documents (not requiring third
agency coordination) within approximately ten months, that is,
by 28 February 2005.
 THE CIA'S FOIA AND PA BACKLOG
10. Because of its diligent efforts, the CIA has been able
to steadily and significantly reduce, though not entirely
eliminate, its FOIA and PA backlog- The reasons for this
continued backlog are twofold! (1) there has been a steady
increase over the years in the number of information release
demands being made on the CIA; and (2) the, process of responding
to these FOIA requests in a manner which avoids inadvertent
disclosure of classified information is necessarily time-
consuming. The demands on the Agency's information review
resources, as well as the careful procedures followed for
responding to FOIA requests, are summarized below for the
purpose of illustrating to the Court why the CIA requires
additional time to complete processing of plaintiff's request.
11, The CIA's regulations provide for the processing of
FOIA and PA requests on a first-in, first-out basis. 32 C.F.R.
? 1900.34. When the CIA receives a FOIA or PA request, it
assigns it a reference number and places it in a queue.' The CIA
assigns a reference number to a request immediately upon
receipt, even before the request is reviewed and formally
accepted. Using this reference number, PIPD can then track the
request from its arrival in IMS throughout CIA's processing.
FOIA and PA requests are handled in the same manner (and same queues),
since the latter are searched under both statutes.
 The CIA uses two tracks for processing requests. The first, or
main, i.e., complex, track, contains the majority of requests
and involves all requests that have to be tasked to one or more
CIA directorates for search and/or review. The second track
contains those requests that concern previously requested
information and/or information previously reviewed, declassified
and released, or that seek information the existence of which
would be a classified fact, if indeed such information existed.
The plaintiff's request, which entails records searches within
components of the Directorate of Intelligence, is properly
placed in the first track.
12. Despite the CIA's diligence and strenuous efforts to
comply with the time limits imposed by FOIA for responding to a
request, the sheer volume of information requests as well as the
nature of the information involved necessarily results in
unavoidable delays in processing in many cases. Moreover,
during FY2003 the number of FOIA requests received by CIA
increased by 15 per cent over the preceding year.
13. In addition to the volume of requests, processing
individual requests is very time consuming. As noted above, the
CIA's records systems, like the Agency itself, are diverse,
decentralized, and compartmented. They are designed and managed
by the components whose activities the records systems are
designed to service. Within each component, the search for and
 review of any responsive records is performed by only those
personnel with knowledge of, and authorized access to, the
information at issue. The records systems have been
decentralized and compartmented purposely to limit personnel
access and to enhance their physical security, thus reducing the
chance of successful penetration by hostile intelligence
services. Moreover, a search such as the plaintiff's which
seeks underlying information, which is not readily identified,
requires the first-hand knowledge and participation of
individuals who actually were involved in the production of the
CIA animation. Consequently, this records search likely.will
involve manual searches of analyst -shoe box" files (or the
equivalent thereof) by several analysts, in multiple components,
as opposed to requests seeking records which are housed in
automated systems with advanced retrieval capabilities
maintained at the directorate or office level.
14. When a request is received, FOIA and PA analysts in
PIPD review it to identify the Agency components most likely to
have responsive documents. As noted above, in this case, the
search for records responsive to plaintiff's FOIA request
involves searches for records that may be in the possession of
the Directorate of Intelligence, and are most likely at the
individual analyst level as opposed to office or directorate
level records systems. Moreover, given the technical and highly
 specialized nature of plaintiff's request, including the 105
specifically enumerated subparts, the mere identification of the
pool of potentially responsive records as well as the review to
determine their responsiveness, will be very labor intensive- In
order to file this declaration, we have had to ask analysts to
begin to locate documents associated generally with TWA Flight
800.
15. In addition to the time required to identify all
responsive documents, all records that are located in response
to plaintiff's request, regardless of where or in which records
systems they are found, must be referred for review to the
originating Agency component(s) or its (their) successor(s).
The principal reason for this practice is to prevent the
unauthorized disclosure of classified or otherwise sensitive
information. Responsive records retrieved by a? records search
in one CIA component often contain sensitive intelligence
information from another component- The originating component
is uniquely knowledgeable about the kind of disclosures that
could, for example, jeopardize specific intelligence sources or
methods, and is therefore best qualified to determine what
damage, if any, reasonably could be expected to result from an
unauthorized release of the information. For similar reasons,
and as required by Section 3.6(b) of E.O. 12958, as amended, the
CIA will refer documents originating with other government
 agencies, or containing another agency's information, to those
agencies for review. Since most of the underlying information
utilized in CIA's analysis of eyewitness accounts of the loss of
TVIA-800 is known to have originated with other agencies/
entities, the probability that information will need to be
referred to or coordinated with other agencies is high.
Factors, such as these, add to the time needed to complete the
review of FOIA requests.
16. Once a responsive document has been located, a careful
line-by-line and word-by-word examination of the document must
be performed by experienced information review officers to
ensure that classified information and other exempt categories
of data are protected, while at the same time permitting
requesters to receive all records or non-exempt, reasonably
segregable portions thereof to which they are entitled by law.
The intelligence field is one in which disclosure of a discrete
piece of information by itself may be innocuous, but its release
in conjunction with other, seemingly harmless bits of
information may result in the disclosure of an intelligence
secret. Accordingly, it is often necessary to analyze
considerable material beyond the particular documents responsive
to the FOIA request.
17. Additionally, the review of classified material under
the FOIA and Executive Order 12958, as amended, sometimes
 requires deliberative judgments by senior officials as to
whether the release of these records reasonably could be
expected to cause identifiable damage to the national security.
These judgments cannot be made solely by FOIA officers; rather,
they must be made by senior officials who are actively involved
in the conduct and management of intelligence collection or
analytical activities, and who are also increasingly engaged in
the review of CIA records in connection with criminal
investigations and prosecutions and Congressional and Executive
Branch investigations. Such officials are often called upon to
respond quickly to international crises and pressures, and
therefore cannot, as a practical matter, instantly devote
disproportionate time and effort to all FOIA matters without
consequent damage to intelligence activities, which are this
Agency's primary responsibility.
18. Delays in the CIA's processing of FOIA and PA requests
also can occur as a result of unanticipated demands placed upon
the CIA's information and release system by non-FOIA matters.
The CIA's information and release staffs are frequently called
upon to work on ad hoc non-FOIA information requests, such as to
conduct searches for and reviews of CIA records in connection
with numerous criminal, civil, and Congressional investigations
and inquiries, which vary widely in scope and urgency. Past
examples include several high-profile counterintelligence and
 espionage prosecutions;?the--Banca Nazionale del Lavoro (BNL)
investigation (Iraqi covert weapons procurement issues);
spurious allegations of a supposed CIA link to drug trafficking
in Los Angeles; and, large and complex investigations into
allegations of human rights abuses in Guatemala and Chile.
Current examples include responding to records requests from the
National Commission on.Terrorist Attacks Upon the United States
(colloquially known as the "9-11 Commission"), and various U.S.
investigations and prosecutions of terrorists. it is generally
impossible to predict such requests in advance and, as a result,
.they place.an additional burden on information review resources
already fully dedicated to ongoing work.
19. Another development significantly impacting the
Agency's ability to process FOIA requests are competing legal
mandates, i.e., other statutes that direct that records on
specific topics or issues be reviewed for declassification and
release. The most notable is the President John F. Kennedy
Assassination Records Collection Act of 1992 (JFK Records Act),
Pub. L. 102-526, 106 Stat. 3443, reprinted at 44 U.S.C. ? 2107
note. Notwithstanding that the independent Assassination
Records Review Board ceased operations on 30 September 1998,
there are continuing commitments to review or re-review certain
records that are ongoing. For example, during 1999, the CIA
processed and released to the National Archives and Records
-
 Administration (NARA) over 7,100 documents, consisting of 34,684
pages. More recently, in July 2003, CIA re-reviewed and
reprocessed the JFK Sequestered Collection, which concerns the
House Select Committee on Assassinations records, a wide range
of material collected in response to HCSA requests for documents
relating to the JFK assassination. And, earlier this year, the
administrative files for the JFK declassification project
(1992-2000), consisting of 7,250 pages, were transferred to
NARA, bringing the total transferred under the JFK Act by CIA to
approximately 364,000 pages.
20. In addition, the Agency must comply with the
provisions of the Nazi War Crimes Disclosure Act (NWCDA),
Pub. L. No. 105-246, 112 Stat. 1859, reprinted at 5 U.S.C. ? 552
note (2003), which mandates that it review and release various
records on Nazi criminals. To date, the Agency has released to
NARA pursuant to the NWCDA nearly 44,000 pages of CIA material
and 1.2 million pages-from the office of Strategic Services,
CIA's predecessor. Agency personnel have also reviewed for CIA
equities 30,000 pages originated by other agencies in connection
with this effort.
21. Not surprising, however, among the most significant
developments impacting FOIA and other information release
programs in the last two and a half years have been the events
of 9-11 and their aftermath, i.e., the continuing war on
 terrorism, Operation ENDURING FREEDOM, and Operation IRAQI
FREEDOM. One need only to read the newspaper or listen to the
evening news to be aware of some of the increased demands on
information review and release resources and the sensitive
information issues that have arisen, e.g., the declassification
review and release of the President Daily Brief item for 6
August 2001. Foremost among these are requests generated by the
Senate Select Committee on Intelligence and House Permanent
Select Committee on Intelligence Joint Inquiry Into the
Terrorist Attacks of September 11, 2001 ("Joint Inquiry") and
the 9-11 Commission. The Agency anticipates a heavy demand for
document searches and releases from the President's Commission
on the Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction as well. In addition, information
review personnel are also engaged in reviewing records as part
of ongoing efforts to prosecute individuals supporting
international terrorism and enemy combatants. Not as readily
apparent is the diversion of experienced personnel from
information review assignments to mission activities, e.g.,
officers with prior DO experience supporting counterterrorism
efforts. For example, from October 2001 through 2003, 15 people
were reassigned from information search, review, and release
responsibilities within my division and detailed in support of
 counterterrorism operations for periods ranging from six months
to over a year.
CIA'S FAR-RE2l.CHING EFFORTS TO IMPROVE
AND EXPEDITE ITS FOIA PROCESSING
22. Despite these demands, the CIA has made tremendous
efforts to improve its processing under the.FOIA and other
information statutes through continuous process improvements,
technological advances, reorganization, and increased dedication
of resources. Through these efforts, the CIA was able to
substantially reduce its FOIA and PA backlog during each of the
past six years.
23. In order to create organizational efficiencies, the
CIA began in 1997, with the creation of the Office of
Information Management (OIM), to consolidate the operations and
management of the various information review and release
programs of the CIA -- numerous discrete, legally mandated or
voluntary programs involving thousands of public and official
requests and demands each year. One of the Agency's principal
goals in creating OIM and its successor, -Information Management
Services, was to obtain the resource and personnel efficiencies
necessary to reduce the time required for the administrative
processing of FOIA, PA, and MDR requests. Toward this end, OIM
retained the services of independent contractor personnel, who
had prior CIA experience, to support the Agency's efforts to
 reduce its FOIA backlog as required by the Electronic FOIA
Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, see 5
U.S.C. ? 552 note. OIM funding for this task also was shared
with Directorate Information Review officers to assist the
directorates in addressing their respective backlogs.
24. In addition, in recognition of the fact that the FOIA
and PA backlog has been exacerbated by the substantial demands
that litigation place upon our FOIA officers, the CIA created a
unit and increased the staffing within the FOIA office to handle
FOIA and PA litigation. This unit handles the administrative
processing of FOIA requests in litigation, acts as a central
support center to coordinate actions on such requests and
supports the Office of General Counsel during FOIA litigation.
25. The CIA has also acted to significantly upgrade the
technology used to manage its FOIA processing programs. During
FY 1998 the Agency saw the delivery and operational capability
of an electronic redaction and case management system --
Management of officially Released Information (MORI)-- used by
the FOIA and other information release programs. Replacing a
paper system for document management that had been in place
since the start of these programs in 1975, the new system
permitted all aspects of a new case to be processed
electronically, including case tracking, scanning of incoming
correspondence, electronic capture of outgoing correspondence,
 as well as scanning and electronic redaction of relevant
documents. The efficiencies offered by this technological
improvement are significant, and development efforts are already
underway to bring the next generation system online.
26. As mandated by the Electronic FOIA Amendments of 1996,
the CIA established a web site on the Internet located at
www.foia.ucia.gov. This site provides electronic access to
frequently requested documents and educates the public about its
rights under the various access laws. The site encompasses a
continuously growing collection of historical records, as well
as frequently requested documents, which have been made
available to the public under the FOIA_ Because this Internet
web site includes popular collections released under a number of
information release efforts, the public availability of these
records should ultimately reduce the overall number of FOIA
requests.
27. However, it is impossible for the CIA to eliminate its
backlog completely, given perennial budgetary constraints and
the heavy and increasing volume of work that is an inevitable
reflection of sustained public interest in the Agency's
activities and information, as well as the time-consuming
meticulousness with which reviews of classified information must
be conducted. Nevertheless, the CIA's wide-ranging initiatives
have enabled the Agency to significantly reduce its FOIA and PA
 backlog during each of the last six years. For example, in FY
1998, the CIA completed 6,521 requests -- more than in any year
since the FOIA was enacted and 1,845 more than in FY 1997.
Since the conclusion of FY 1997, when the backlog stood at 4,867
cases, CIA has steadily reduced its backlog to the point that at
the conclusion of FY 2003, it had been reduced by 70 per cent to
1,432 cases. A recently concluded study by the General
Accounting Offices, based on data from FY2000 to FY2002, noted
that "(T)he Central Intelligence Agency is the only agency that
over the past three years has consistently decreased the number
of requests in its.backlog of pending requests."5 In fact, an
earlier GAO study, had noted that CIA "was the only agency with
a processing rate over 100 percent in each year for the fiscal
years 1998, 1999, 2000, and 2001." Thus, CIA has made steady
progress, reducing its backlog six years running.
PLAINTIFF'S REQUESTS AND CIA PROCESSING
28. By letter dated 8 October 2003, Mr. Lahr stated that
in November 1997, "the NTSB and FBI released the CIA-produced
video animation of Flight 800 continuing to fly, over 3,000 up,"
after nose separation. He requested "all records upon which
united States General Accounting Office, Information Management: Update on
Freedom of Information Act Implementation Status, GAO-04-257, February 2004.
The report also noted that the Agency had decreased its median processing
times between 2001 and 2002.
G United States General Accounting Office, Information management: Update on
Implementation of the 1996 Electronic Freedom of Information Act Amendments,
GAO-02-493, August 2002.
 this publicly released aircraft flight path climb conclusion was
based, and the 105 FOIA Requests are itemized in the enclosed
Excel printout^ (30 pages). Plaintiff did not request expedited
processing or identify any exceptional need or urgency in
processing.
29. By letter dated 20 October 2003, CIA acknowledged
receipt of Mr. Lahr's request (by facsimile and regular mail)
and assigned it reference number F-2004-00078 for identification
purposes. The letter went on to inform Mr. Lahr that "[O]ur
analysts will review your request, and we will advise you of any
problems . . . or whether we can search without any additional
information."
30. On 6 November 2003, Plaintiff filed the instant
complaint with the Court.
THE CIA's ESTIMATED TIME FOR COMPLETION OF PLAINTIFFS
FOIA REQUEST
31. CIA will treat plaintiff's FOIA request as having been
accepted on the date on which the request was received by CIA's
FOIA office - 8 October 2003. At that time, the Agency had over
1,500 FOIA requests in queue in various stages of processing; of
these, approximately 865 currently remain ahead of plaintiff's
request in the complex queue.
 32. At this time, the CIA has not yet completed its search
for records responsive to plaintiff's request. Until the number
and nature of responsive records are known, I cannot accurately
predict the amount of time required for processing.
33. However, if there are a relatively modest number of
responsive documents, I estimate that the Agency can complete
processing of CIA-originated records in approximately 10 months.
Obviously, if the number of responsive records is greater than
anticipated, it may impact this estimate.
34. Another major determinant of the ariount of time
necessary to process plaintiff's request is the degree of
interagency referral or coordination which will be required. As
was noted earlier (1 15), most of the information utilized in
CIA's analysis of eyewitness accounts which is presented in the
animation is known to have originated with other government
agencies and entities; consequently, extensive referral and/or
coordination will be required. In addition, plaintiff has
requested information provided by the Boeing Corporation; such
material, if any, will need to be processed in accordance with
Executive Order 12600, 52 Fed. Reg. 23781 (June 23, 1987), which
governs predisclosure notification procedures for confidential
commercial information.
 35. At this time, it is impossible to project when a
Vaughn index may be completed since neither the volume nor
nature of responsive records is known.
CONCLUSION
36. The CIA is making all reasonable efforts to comply
with the FOIA's requirements and deadlines. Regrettably,
compliance with these deadlines is not always possible. With
respect to plaintiff's request, due to the complicated nature of
the request, the manner and level of the records search, the
nature of potentially responsive documents, and the careful,
multi-step review the CIA must conduct to prevent the
inadvertent release of classified, national security or other
exempt information, and upon consideration of what is humanly
possible based on the Agency's current resources, my best
estimate is that it will take until February 2005 to complete
processing of CIA records.
37. For the above reasons, the CIA submits this
declaration in support of its request for a stay of proceedings
until such time as the CIA has completed processing plaintiff's
request.
 I declare under penalty of perjury of the laws of the
United States of America that the foregoing is true and correct.
Executed this day of April 2004.
(~(J, (-,) C-C-6,
Alan W. Tate
Acting Chief, Public
Information Programs Division
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