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Judge Supports CIA on Selective Disclosure of Classified Information to Journalists

Recently, in Johnson v. CIA, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York sided with the CIA when she held that the agency was not required to produce classified information in response to a Freedom of Information Act (FOIA) request despite having earlier emailed that information to three journalists. This ruling could have the dual effect of strengthening the CIA's ability to rely on existing FOIA exemptions and encouraging the agency to share more information with the press.

In five email chains, the CIA's Office of Public Affairs disclosed certain classified information to three well-respected national security journalists. The disclosure went through and was approved under an agency-sanctioned "selective disclosure program"—in other words, the CIA press office.

The information indisputably was classified, the three journalists were not authorized to have access to it, and they did not publish any of it.

Adam Johnson, an independent journalist and contributing analyst for a progressive media watchdog organization, filed a FOIA request with the CIA for the contents of those emails. The CIA denied Mr. Johnson's request, asserting that it was not required to disclose the information under both Exemption 1 (information authorized to be kept secret in the interest of national defense or foreign policy) and Exemption 3 (information specifically exempted from disclosure by statute—in this case, information that could be withheld to protect intelligence sources and methods under the National Security Act). Mr. Johnson then filed suit under the FOIA requesting production of the emails.

Judge McMahon quickly cut to the heart of the matter—whether the CIA's voluntary disclosure of the information waived its ability to rely on the FOIA exemptions. Consistent with the judiciary's frequent deference to the Executive on issues of classification and national security, Judge McMahon held that the CIA had not waived its right to invoke FOIA Exemptions 1 and 3 because the classified information had not become "truly public."

Despite the fact that the CIA had emailed the information to the three journalists who were not authorized to view it, the plaintiff could not show that the information he sought had made it into the public domain—it had never been published, and there was nothing to suggest that the three journalists ever printed copies of the emails or shared them with anyone.

Judge McMahon's ruling has two principal effects. First, it bolsters the government's ability to deny FOIA requests. Despite what the judge called "CIA's carelessness" that "appears to have ignored every safe harbor the courts have afforded it," the CIA now has a judicially sanctioned justification to selectively disclose classified information to certain members of the public without waiving any FOIA exemptions. Second—and more subtly—Judge McMahon's order gives the CIA and other intelligence agencies a legal authorization to share classified information with members of the press.

Copyright © by Ballard Spahr LLP

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About this Author

Jay Ward Brown, Ballard Spahr Law Firm, Washington DC, Media and Litigation Law Attorney
Partner

Jay Ward Brown has been representing news and entertainment companies for more than two decades. He has litigated libel, privacy, copyright, subpoena, and access matters in the U.S. Supreme Court, federal and state appellate courts, and trial courts around the country.

Jay has been described in Chambers USA as “a lawyer who delivers continuously high-quality service,” possesses “impeccable analysis and impressive writing skills,” and has a “friendly, approachable and attentive demeanor [that] sees clients wanting to use him exclusively...

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Christopher Proczko Federal Civil Rights Lawyer Ballard
Attorney

Christopher Proczko is a trusted litigator and skilled advocate who protects his clients' interests, both in and out of the courtroom. He has broad experience litigating in state and federal courts and arbitration around the country, handling simple disagreements and complex disputes with the same level of compassion and professionalism.

Known for his reliability and procedural expertise, Christopher guides his clients through disputes with a common sense approach that both advances their unique legal goals and strives to reach a result that makes good business sense. He has represented clients in criminal matters, government investigations, insurance coverage disputes, class-action shareholder disputes, federal civil rights claims, immigration, and business-to-business litigation. Christopher helps every client navigate disputes from the initial complaint through to the final resolution.

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David A. Schulz, Litigation, New York, Media & Entertainmnet
Senior Counsel

David A. Schulz has defended the rights of journalists and news organizations for more than 35 years, litigating libel, privacy, access, and newsgathering claims in 20 states.

His regular clients include international news organizations, national and local newspapers, broadcast and cable television networks, station owners, magazine and book publishers, and internet content providers of all types.

More recently, Mr. Schulz has litigated issues concerning government secrecy in many contexts. He was tapped to provide...

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