Sunshine Week annually marks efforts to promote government transparency and accountability, largely centered on the use of the nearly six-decade old Freedom of Information Act (FOIA). It's unfortunate and alarming when governmental bodies refuse to release requested information, particularly where the request involves governmental activities that potentially threaten the constitutional rights and protections afforded citizens. It's exactly that scenario that has forced the Cato Institute to initiate a FOIA lawsuit against the federal Privacy and Civil Liberties Oversight Board (PCLOB).

Created in 2004 in response to a specific 9/11 Commission recommendation, the PCLOB bills itself as "an independent agency within the Executive Branch" with the mission of ensuring that "the federal government's efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties." Since January 2014, the PCLOB has released seven major public reports, including a few on key provisions of the PATRIOT Act and on surveillance legislation made necessary by the exposure of the unconstitutional NSA STELLAR WIND program. But in May 2019, the PCLOB refused a Cato FOIA request that it make public a versions of any Executive Order 12333 reports.

Specifically, Cato sought the following:

1. Any Board reports issued on federal department and agency activities conducted pursuant to Executive Order 12333, as amended; and
2. Any correspondence in any form to or from the Board regarding alleged or actual violations of laws, regulations, or executive orders by any federal department or agency under the purview of the Board.
3. Any correspondence in any form to or from the Board regarding refusals by any federal department or agency to provide information requested by the Board pursuant to its statutory oversight mission.

For those unfamiliar with it, EO 12333 is the day-to-day regulatory guidance governing all U.S. Intelligence Community (IC) activities. Since its promulgation in 1981 during the Reagan administration, very little about any activities carried out under its auspices have ever been made public--something that has been a cause of ongoing concern among privacy and civil liberties advocates for years.

What makes the PCLOB's refusal to release the requested information in this case extremely alarming is that the PCLOB is allowing the agency that is the subject of the report--believed to be the CIA, based on a January 25, 2021 PCLOB press release announcing the completion of "a 'deep dive' examination of a classified CIA counterterrorism program"--to withhold the PCLOB's report in its entirety.

In his November 18, 2019 final response to Cato's FOIA appeal, PCLOB General Counsel Eric J. Broxmeyer stated, in relevant part, as follows:

In the June 14 appeal letter (page 3), I granted your appeal in part by sending the report back to the relevant agency for consultation to determine whether any part of the classified report was segregable and releasable. In response, the agency determined that the report is neither segregable nor releasable, citing Freedom of Information Act (“FOIA”) exemptions 1, 3, and 5. While there is a duty to segregate releasable from classified information with respect to Exemption 1, that is not always possible and some reports must remain classified. Based on the response from the agency, this is such a report. I therefore deny your appeal.

In reality, the PCLOB's authorizing statute contains no language allowing an agency or department to censor or otherwise withhold in full any PCLOB-originated report, particularly any specific observations, conclusions or recommendations. Allowing the practice at all completely destroys the notion that the PCLOB is "an independent agency" within the Executive branch. It also flies in the face of the PCLOB's prior practice--as directed by Congress--of releasing unclassified reports on other surveillance programs and activities with a clear civil liberties nexus, including NSA-related programs, which of course are among the most highly classified in the entire federal government.

I also note that the PCLOB is refusing to provide correspondence indicating when Executive branch agencies or departments have declined to cooperate with the PCLOB or denied it requested information pursuant to PCLOB inquiry or program examination.

In denying the records in a June 14, 2019 letter to Cato, Broxmeyer stated that such documents "meet the requirements for Exemption 5 because they are pre-decisional and deliberative without any releasable or segregable information, and are therefore appropriately withheld in full."

In fact, a final refusal by an agency to cooperate would not be covered by Exemption 5 as it could not remotely be considered "pre-decisional". The public and the Congress most definitely have a right to know if Executive branch agencies or departments are refusing to cooperate with an oversight body charged with protecting the rights of citizens. The PCLOB's refusal to provide responsive documents on this issue is also deeply disturbing and clearly unwarranted.

The purpose of this litigation is not to attempt to force the release of information that would in any way endanger a specific confidential human source or an extremely perishable technical collection capability. The purpose is to determine whether the (likely) CIA program in question could pose or has been verified as a risk to the rights of any American citizen, and to ensure that the PCLOB understands its responsibility is to issue reports to the public on its oversight activities, as directed by Congress--not allow its work product to be censored by the agency or department that is the subject of a PCLOB review. Updates on this case will be provided as appropriate.