TRAC lawsuit against the CIA pushes to keep government agencies accountable

By Kate Capodanno

December 14, 2015

Suit filed in October faces a long road to getting CIA to comply with FOIA

The Transactional Records Access Clearinghouse, which is based in the Newhouse School at Syracuse University, is going to court again—this time against the Central Intelligence Agency.

As a part of TRAC’s Freedom of Information Act Project, which began in January, the organization sends out quarterly FOIA requests to 22 federal agencies, including the CIA. TRAC’s FOIA Project keeps a quarterly record of all the instances the federal government provides or denies access to information under FOIA, says Susan Long, co-founder and co-director of TRAC. Long is one of the plaintiffs listed in the lawsuit filed in October to persuade the CIA to comply with the FOIA.

Of the 22 agencies TRAC contacted, Long says the CIA was the only agency that out-right denied the request.

“The law is pretty clear. The Freedom of Information Act does apply to the CIA,” Long says. “We are not asking about anything that is classified. We are just talking about the requests that are coming in and how they are processing them. It’s pretty simple.”

In its FOIA requests, TRAC asks for basic information regarding how the federal agency is complying with FOIA. The questions focus on the number of FOIA requests the agency receives, the timeline in which the agency responds to requests and the size of the agency’s backlog, Long says. 

After its recent request was denied, TRAC filed an appeal so that the agency would reconsider the FOIA. In response, the CIA says it never gave TRAC the right to appeal so the appeal was closed, says David Burnham, co-founder and co-director of TRAC and the other plaintiff listed on the lawsuit.

“The CIA is not exempt from the Freedom of Information Act, although they seem to be saying they are,” Burnham says. 

This is not the first time TRAC has filed a lawsuit under FOIA. TRAC has had to file four or five suits against the Internal Revenue Service; it is about to reach a settlement on a suit that lasted more than 17 years; and TRAC has two suits pending against the Department of Homeland Security, Burnham says. 

“The government does not make this record of information available in a happy way,” Burnham says. “We have had to use the FOIA very aggressively. We have to get the information even though they don’t make it easily available.”

For this suit, TRAC is represented on a pro bono basis by renowned FOIA attorney David L. Sobel. But going through this legal process is always difficult, he says.

In addition to making sure government agencies are adhering to FOIA, Burnham says one of TRAC’s main goals is to determine whether federal agencies are achieving their stated goals. 

Therefore, TRAC looks to gain access to federal government databases through FOIA  to hold government agencies accountable, says Greg Munno, one of TRAC’s former assistant research professors. 

Munno says TRAC often uses FOIA in the fight to successfully gain access to government data.

“They are constantly going to court to sue federal agencies who are reluctant to turn over their information,” Munno says.

Some TRAC cases have successfully established precedent that many federal government administrative databases are subject to FOIA. However, the organization’s FOIA charges do take a toll on the nonprofit, Munno says.

“TRAC operates at a loss,” Munno says. “It’s more than a nonprofit, it’s a no profit.”

TRAC’s trip to court in October to file the lawsuit against the CIA is just the beginning of a long and slow process, Long says.  

“The ball is in their court now,” Long says. “Now we just need to wait for the CIA to file a response to our complaint.”

Long added that although the CIA has given TRAC trouble, many other federal agencies have been very cooperative in responding to their FOIA information requests.

Unfortunately, though, there are always a few agencies, such as the CIA, that are not so compliant.

“Some agencies are really quite lawless, so you have to file these litigations,” Long says.  “It’s just kind of sad. We want to see our own federal government following the law, particularly on such an important issue as transparency.”

Full text of the complaint is available on the FOIA Project website.

Kate Capodanno is a junior broadcast and digital journalism major at the Newhouse School.