Initial Request

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0005460179
• Release Decision: IPPUB U
• Document Page Count: 4
• Document Creation Date: June 24, 2015
• Document Release Date: July 30, 2010
• Case Number: F-2010-00667
• Publication Date: October 9, 2009

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NATIONAL SECURITY COUNSELO
1200 SOUTH COURTHOUSE ROAD
SUITE 124
ARLINGTON, VA 22204
TELEPHONE: [phone]
FACSIMILE. (240) 6812189
KEL MCCLANAI-IAN, ESQ., EXECUTIVE DIRECTOR
EMAIL: KEL@NATIONALSECURITYLAW. ORG
Delores M. Nelson
Information and Privacy Coordinato
Central Intelligence Agency
Washington, DC 20505
APPROVED FOR
RELEASE[] DATE:
06-16-2010
Re: FOIA Re uest -Con t-essional Nat onal Securi Oversi ht Committees, Part II
Dear Ms. Nelson:
This is a request on behalf of National Security Counselors ("NSC") under the Freedom
of Information Act, 5 U.S.C. ? 552, etseg, for copies of all Central Intelligence Agency
("CIA") records, including cross-references, from the time period 1975-1999, pertaining to:
a) Testimony by CIA officials delivered verbally or submitted in writing to
Congressional Committees or Subcommittees with oversight over national
security activities (hereinafter "national security oversight committees"),
including but not limited to the House Permanent Select Committee on
Intelligence(" HPS CI"), theSenate SelectCommitteeon Intelligence
("SSCI"), and the former CIA Oversight Subcommittees of the Senate and
House Armed Services and Appropriations Committees;
b) Transcripts of hearings and meetings of any national security oversight
committees, including but not l mited to the HPSCI or SSCI; and
c) Correspondence and. emails between CIA and i) any national security
oversight committee or ii) any Member of Congress, Senator, or
Congressional staffer acting in an official capacity as representative of any
national security oversight committee. For purposes of this subparagraph
you may limit your searches to the Offices of the Director, Deputy Director,
Congressional Affairs, General Counsel, Inspector General, and their
predecessors.
When processing this request, please note that the D.C. Circuit has previously held that
agencies have a duty to construe the subject material of FOIA requests liberally to ensure
responsive records are not overlooked. See NcuionMagazine, Washington Bureau v US
Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995). Accordingly, you are hereby instructed that
the term "recor(f" includes, but is not limited to: 1) all email communications to or from any
 2009-10-08 06:35:21 (GMT) Nat Sec. Counselors Prom: Kel McClanahan
individual within your agency; 2) memoranda; 3) inter-agency communications; 4) sound
recordings; 5) tape recordings; 6) video or film recordings; 7) photographs; 8) notes; 9)
notebooks; 10) indices; 11) jottings; 12) message slips; 13) letters or correspondence; 14)
telexes; 15) telegrams; 16) facsimile transmissions; .17) statements; 18) policies; 19) manuals or
binders; 20) books; 21) handbooks; 22) business records; 23) personnel records; 24) ledgers; 25)
notices; 26) warnings; 27) affidavits; 28) declarations under penalty of perjury; 29) unsworn
statements; 30) reports; 31) diaries; or 32) calendars, regardless of whether they are handwritten,
printed typed, mechanically or electronically recorded or reproduced on any medium capable of
conveying an image, such as paper, CDs, DVDs, or diskettes.
Furthermore, in line with the guidance issued by the Department of Justice ("DOJ") on 9
September 2008 to all federal agencies with records subject to FOIA, agency records that are
currently in the possession of a U.S. Government contractor for purposes of records management
remain subject to FOIA. Please ensure that your search complies with this clarification on the
effect of Section 9 of the OPEN Government Act of 2007 of the definition of a "record" for
purposes of FOIA. In addition, the CIA should not interpret this request to exclude
correspondence sent to outside third parties. Please also consider this letter an affirmative
rejection of any limitation of your search to CIA-originated records.
Lastly, the CIA is specifically prohibited from adopting an overbroad interpretation of the
above use of the phrase "pertaining to" with respect to the scope of this request; an interpretation
that "a request for all documents `pertaining to' a subject is overbroad because all documents
pertain' to others in some remote fashion" is specifically rejected. Therefore, in conclusion, the
CIA is hereby instructed to interpret the scope of this request in the most liberal manner possible
short of an interpretation that would lead to a conclusion that the request does not reasonably
describe the records sought. If, even given these restrictions, the CIA still determines that this
request does not reasonably describe the records sought, it is instructed to contact NSC pursuant
to 32 C.F.R. ? 1900.12(c) to discuss reformulation of the request before rejecting the request as
overbroad, vague, or unduly burdensome. Given the compartmentalized nature of the CIA's
records systems, NSC is willing to work with the FOIA analysts to determine a search strategy
that will address both parties' needs.
If you deny all or part of this request, please cite the specific exemptions you believe
justify your refusal to release the information or permit the review and notify us of your appeal
procedures available under the law. In excising material, please "black out' rather than "white
out" or "cut out." In addition, we draw your attention to President Obama's 21 January 2009
Memorcul onfor the heads of Executive Departments cmdAgencies, directing federal agencies
to adopt a presumption in favor of disclosure and stating that government information should not
be kept confidential "merely because public officials might be embarrassed by disclosure,
because errs and failures might be revealed, or because of speculative or abstract fears."
We are hereby requesting a waiver of all fees in accordance with our status as a
representative of the news media. NSC is a non-profit organization under Virginia law, has the
ability to disseminate information on a wide scale, and intends to use information obtained
through FOIA in original works. According to 5 U.S.C. ? 552(a)(4)(A)(ii), codifying the ruling
of Nw'l SecurityArchive v. Dej,'t of Defense, 880 F.2d 1381 (D.C. Cir. 1989),
 the term `a representative of the news media' means any person or entity that gathers
information of potential interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct world and distributes that work to an audience.
NSC has clear intent to "publish[ ] or otherwise disseminate[ ] information to the public." Id at
1386 (quoting the following legislative history: 1) "It is critical that the phrase `representative of
the news media' be broadly interpreted if the act is to work as expected.... Infact, atwi person
or organization which regularly publishes or cfsseminates information to the public ... should
qualify for waivers as a `representative of the news media ` 132 Cong. Rec. S 14298 (daily ed.
Sept. 30, 1986) (emphasis in original quotation); 2) "A request by a reporter or other person
affiliated with a newspaper, magazine, television or radio station, or other entity that is in the
business of publishing or otherwise disseminating information to the public qualifies under this
provision." 132 Cong. Rec. 119463 (Oct. 8, 1986) (emphasis in original quotation)). Our
website, where much of the information received through our FOIA requests will be posted for
all to review, can be accessed at ~ - tttro: v, rcn iration?tlsocr?s-itelativ rrr In addition, we also intend
to use information obtained through FOIA in our own published opinion editorials, journal
articles, and the like. The records sought in this particular request will be used in a law review
article discussing the evolution of Congressional intelligence oversight. I personally have
already published information received through FOIA in this mariner (Kel McClanahan. A
PerceptionBasedModel forCotnparingIntelligence Communities, 25(2) AMER. INTELLIGENCE J.
46 (Winter 2007!2008) (includes material obtained through a CIA FOIA request)). Therefore, in
accordance with the Freedom of Information Act and relevant case law, NSC should be
considered a representative of the news media. Similarly, our request for a public interest fee
waiver should be granted, for the reasons elucidated below.
There can be no question that the information sought would contribute to the public's
understanding of government operations or activities and is in the public interest. The question
of proper Congressional oversight of the Intelligence Community in general and the CIA
specifically is an ongoing debate in the public realm. Indeed, for much of the history of the CIA
there has been little to no oversight from the Legislative Branch, which is not to say efforts were
never undertaken. See, e.g., Loch Johnson, A Season of#ngaary: The Senate Intelligence
Investigation ("1985); Alleged AssassinationPlotsInvolvingForeignLeaders:.4nInterimReport
of the UnitedStates Senate Select Committee to Study Governmental Operations with Respect to
Intelligence Activities, Together with AdUtional, Supplemental andSeparate Views (1976).
Recent years have seen the public disclosure of several controversial intelligence
programs, ranging from the Terrorist Surveillance Program to "extraordinary rendition" of
foreign nationals to unidentified overseas prisons. Such programs have raised public concern
regarding whether the U.S. Intelligence Community (`USIC") is operating outside ofthe law.
Indeed, for the first time in six years, the Government Accountability Office ("GAO") was asked
last year by a congressional intelligence committee to perform an intelligence oversight-related
function. On 11 March 2008, Rep. Silvestre Reyes (D-TX), the I-IPSCI chairman and Rep.
Anna Eshoo (D-CA), a subcommittee chairwoman, called upon the GAO to review security
clearance processes in the intelligence community and to examine the Director of National
Intelligence's ("DNI") pilot project on security clearance reform. See
 httt v =wfas oro-'i%sinewsi2708i03ieshoo.html. The potential role of the GAO in intelligence
oversight was also addressed in a 29 February 2008 hearing of the Senate Homeland Security
and Governmental Affairs Committee chaired by Senator Daniel Akaka. See
http_cti vwfasorg 11P, con re8si2008 hr, index.lin -gao.
Disclosure of responsive records pertaining to CIA's interaction with Congressional
national security oversight committees will demonstrate both the exact relationship between the
USIC and its legislative watchdogs and the extent to which the USIC has been complying with
Congressionally-mandated oversight of its activities, and thereby would contribute to the public's
understanding of government operations and activities.
In addition, with respect to the specific requirement that NSC must demonstrate an
expertise in the subject area in order to satisfy the fee waiver criterion that disclosure of the
requested information must contribute to the understanding of the public at large, one of NSC's
core missions is to educate the public on legal issues relating to intelligence and national
security. With a Board of Directors and a Board of Advisors comprised of some of the most
respected names in national security law, NSC's collective expertise in this field is more than
sufficient to satisfy this requirement. I personally have worked for a national security law firm
for two years, am nearing completion of an LLM in National Security Law, and am currently the
Associate Editor of theArnericanIntelligenceJournal.
The CIA is required by law to respond to this request within 20 working days, Failure to
timely comply may result in the filing of a civil action against your agency in United States
District Court.
We request that any documents or records produced in response to this request be
provided in electronic (soft-copy) form wherever possible. Acceptable formats are pdf .jpg,
.gif, tif Please provide soft-copy records by email or on a CD if email is not feasible.
However, NSC does not agree to pay an additional fee to receive records on a CD, and in the
instance that such a fee is required NSC will accept a paper copy of responsive records.
Your cooperation in this matter would be appreciated. If you wish to discuss this request,
please do not hesitate to contact me.
Kel McClanahan
Executive Director