Initial Request

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0005460180
• 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

2009-10-08 06:35:21 (GMT) Natl Sec Counselors From: Kel McClanahan
n 75
NATIONAL SECURITY OOUN ELOR
1200 SO UTH COURTHOUSE ROAD
SUITE 124
ARLINGTON, VA 22204
TELEPHONE,. [phone]
FACSIMILE; [phone]
KEL MCCLANAHAN, ESQ., EXECUTIVE DIRECTOR
EMAIL: [e-mail]
Delores M. Nelson
Information and Privacy Coordinator
Central Intelligence Agency
Washington, DC 20505
APPROVED FOR
RELEASE[] DATE:
06-16-2010
Re: FOIA Re nest-State Secrets Pr vile e Re ulatiorLS, Policies. and CuideIines
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, etseq., for copies of all Central Intelligence Agency
("CIA") records, including cross-references, pertaining to regulations, policies, and
guidelines governing the assertion of the State Secrets Privilege by the Director of CIA (or
his designee) in ongoing federal cases, including but not limited to:
1) Regulations, policies, or guidelines addressing the question of when and
when not to assert this privilege;
2) Regulations, policies, or guidelines addressing what information to include in
declarations or affidavits submitted to the court in support of the assertion of
this privilege; and
3) Correspondence, em ails, meeting minutes, and records of any discussions
regarding these regulations, policies, or guidelines.
This request is only for records pertaining to general guidelines, and records that only pertain to
guidelines for specifically named cases should be excluded.
When processing this request please note that the D.C. Circuit has previously held that
agencies have a duty to construe the subject material ofFOIA. requests liberally to ensure
responsive records are not overlooked. See NationIFtagemne. Washington Bureau v. US.
CustorsService, 71 F.3d 885. 890 (D.C. Cir. 1995). Accordingly, you are hereby instructed that
the terns "record" includes, but is not limited to: 1) all email communications to or from any
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; II ) 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 ofpedury; 29) unsworn
 2008-10-08 06:35:21 (GMT) Nakl Sec. Counselors From: Kel McClanahan
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 d skettes.
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 or to records created prior to
the date of this request. To the contrary, we stipulate that this search should be restricted to
records created prior to the date of the first substantive review of this request by CIA FOIA
personnel (as opposed to the date that receipt of the request was acknowledged by the CIA).
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.
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
Mesnorco dzan far the heads ofExecutrve Departments widAgencies, 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 errors 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 ,Nat'l Secu zty,grchine v Dep't ofDefense, 880 F.2d 1381 (D.C. Cit. 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 work, and distributes that work to an audience.
 2009-10-08 06:35:21 (GMT) Nat Sec. Counselors From: Kel McClanahan
NSC has clear intent to "publish[ J 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. . In fact any, person
or orgcoIizatlon which regularly publishes or disseminates information to the public .. , should
qualifi: for waivers as a `representative of the news media "' 132 Cong. Rec. S14298 (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 ofpublishing or otherwise disseminating information to the public qualifies under this
provision." 132 Cong. Rec. H9463 (Oct. 8, 1.986) (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 hltp: vA iN ti .rr,~tiou l cad: ~tyl 'n org, 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 efforts to reform the privilege. I personally have already published information
received through FOIA in tlns warmer (Kel McClanahan, ,4 Perception BasedlMTodel for
C'ornparngIntelligence Comrrmrnities, 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 invocation
of the state secrets privilege, especially by the CIA, is of significant interest to the public.
Congress has held numerous hearings on the issue, and four bills have been authored in the last
two sessions to legislatively reform it. Most recently, Attorney General Holder has even issued
new guidelines for its invocation. Never before have any of the declarations or affidavits
submitted by an agency head been released to the public. Because of the enormous power of this
privilege, the policies and regulations used by the CIA to determine when to assert the privilege
and what information to cite in the supporting declarations or affidavits would significantly
contribute to the public's understanding of government operations and activities.
Inj 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 the American IntelligenceJoutnal.
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
Di strict Court.
 2009-13-os 06:35:21 (GMT) Natl Sec. Counselors From Kel McClanahan
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 pdt jpg,
gif, .tip. 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