From The Coalition Column of the October 2012 issue of Perspectives on History

NCH Asks Federal Court to Review Detrimental FOIA Decision

Lee White, October 2012

The National Coalition for History (NCH) has joined the American Historical Association and eleven other history and archival organizations, in requesting a Federal appeals court to review a lower court ruling that would prohibit the release of CIA records pertaining to the Bay of Pigs invasion that occurred over fifty years ago. If upheld, the decision could have a potentially chilling effect on historians, political scientists, academics and researchers gaining access to CIA files.

Joining NCH in signing the letter were the American Historical Association, American Political Science Association, American Society for Legal History, Association for Documentary Editing, Association of Centers for the Study of Congress, History Associates, Inc., National Council on Public History, Organization of American Historians, Society for Historians of American Foreign Relations, Society for Military History, Society of American Archivists, and the Southern Historical Association (view the letter).

In 2011, the National Security Archive sued the CIA to declassify the full "Official History of the Bay of Pigs Operation." However, a U.S. District Court judge sided with the Agency's efforts to keep the last volume of the report secret in perpetuity. In her ruling, Judge Gladys Kessler accepted the CIA's legal arguments that, because Volume V was a "draft" and never officially approved for inclusion in the Agency's official history, it was exempt from declassification under the "deliberative process privilege" of the Freedom of Information Act (FOIA) despite having been written over 30 years ago.

The volume, titled "CIA's Internal Investigations of the Bay of Pigs Operations," was written by CIA historian Jack Pfeiffer in 1981. It forcefully critiqued the scathing investigative report written in the immediate aftermath of the paramilitary attack—by the CIA's own Inspector General, Lyman Kirkpatrick—which held CIA planners fully responsible for the worst debacle in the Agency's covert history. In court papers, CIA officials described Pfeiffer's critique as "a polemic of recriminations against CIA officers who later criticized the operation."

"When it comes to protecting its own, the CIA appears to have a double-standard on history," said Peter Kornbluh who directs the National Security Archive's Cuba Documentation Project which brought the FOIA lawsuit. Kornbluh noted that the CIA had no problem declassifying Volume IV of the official history–also a draft– in which Pfeiffer attacked both President Kennedy for his role in setting restrictions on the overt elements of what was supposed to be a covert, and "plausibly deniable," operation, as well as Attorney General Robert Kennedy for his role in the Presidential commission, led by Gen. Maxwell Taylor, that investigated the failed invasion.

In her ruling, Judge Kessler stated that "disclosure of a draft history would risk public release of inaccurate historical information." She also cited the arguments of CIA Chief Historian David Robarge that "disclosure of Volume V would have a chilling effect on CIA's current historians who would henceforth be inhibited from trying out innovative, unorthodox or unpopular interpretations in a draft manuscript."

The National Security Archive's lawsuit did yield the release of Volumes I, II, and IV. Volume III was previously released under the Kennedy Assassination Records Act in 1998 (access all four of those volumes).

Among the significant and unresolved legal questions raised by this case are the circumstances under which draft histories are subject to withholding under FOIA exemption 5, and how the passage of time affects an agency's rationale for withholding historical information.

Government lawyers have taken the unusual step of asking the U.S. Court of Appeals for the District of Columbia Circuit for "summary affirmance," a process that allows it to decide the case without a hearing on the merits and full briefing and arguments.

In asking the Federal Appeals court for a full hearing, the NCH letter notes the precedential impact of this case could have devastating consequences on future access to records and materials for research, especially in the areas of national security, foreign relations, military history and presidential history. In addition, the district court's decision could have a chilling effect on access to historical materials at other federal agencies, which could rely on the district court's overly broad interpretation of exemption 5 to deny similar FOIA requests in the future.

Overhaul of Federal Record-Keeping Ordered
by National Archives and OMB

On August 24, the National Archives and Records Administration (NARA) and the Office of Management and Budget (OMB) a major overhaul in the way federal departments and agencies manage and preserve their records. 

In a directive to reform records management for the 21st century, NARA and OMB said that all agencies must begin to manage their records, including emails, in electronic format by the end of the decade. The directive also requires each agency to designate a high-ranking agency official to oversee its records management programs and to ensure that all appropriate staff receive records management training. Deadlines for complying with various parts of the directive are spread over the coming years.

Among the highlights of the directive issued are:

Federal agencies must manage all permanent electronic records in an electronic format by December 31, 2019, and must have plans to do so by December 31, 2013.

All agencies must manage both permanent and temporary email records in an accessible electronic format by December 31, 2016.

NARA will issue updated guidance on managing, disposing of, and transferring email by December 31, 2013.

By December 31, 2014, all agencies must have records management training in place for appropriate staff.

By this November, each agency must designate a senior agency official to oversee its records management program. The Archivist will convene the first ever meeting of senior agency officials before the end of 2012.

Overall, the directive lists a dozen actions to be taken by NARA and other agencies to assist all Federal

departments and agencies in meeting the requirements set forth in the new directive.
Among the most important will be the Archives' work with the Office of Personnel Management to establish a formal records management occupational series to elevate records management roles, responsibilities, and skill sets for agency records officers and other records professionals (read the directive).

The National Archives recently released its 2011 Records Management Self-Assessment Report. NARA's findings are similar to previous years. The responses indicated that a large majority of Federal agencies that responded remain at high to moderate risk of compromising the integrity, authenticity, and reliability of their records. In September 2009, NARA issued its first mandatory records management self-assessment to 242 Federal Cabinet Level Agencies and their components, and independent agencies. The goal of the annual self-assessments is to gather data to determine how effective Federal agencies are in meeting the statutory and regulatory requirements for records management.

One of the continuing challenges for the National Archives is the lack of a legal enforcement mechanism to compel federal agencies to meet their records management responsibilities under the Federal Records Act and other statutes.

In the past, critics in the access community have questioned NARA's records management enforcement performance. A continuing area of contention is whether NARA has the legal authority necessary to regulate federal agencies records management and if it does whether the agency has been properly, and aggressively, exercising that authority. Some have urged Congress to amend the Federal Records Act, and other statutes, to provide the Archivist with explicit and expanded oversight and enforcement responsibilities to compel agency cooperation.

In June 2010, the Information Policy, Census and National Archives Subcommittee of the House Oversight and Government Reform Committee held a hearing to review the status of the management of electronic records at federal agencies, and explored ways to improve the scheduling and preservation of electronic records.

At the hearing, Archivist of the United States David S. Ferriero was asked if he thought NARA had enough statutory authority to hold agencies accountable. Ferriero replied that he thought they did. The Archivist noted that before the issuance of the 2009 agency self-assessment request, federal agencies hadn't been inspected in eight years and that they did not take the initial self-assessment requirement seriously. Since that time Ferriero has followed up with senior leadership at the non-compliant agencies and used the annual self-assessment report to bring light to the problem within the administration. The issuance of the new NARA/OMB directive is the result of those actions.

Lee White is the executive director of the National Coalition for History.