Friday, January 23, 2015

Are Senator Burr's Torture Report Demands Illegal?

Sen. Burr's remarkable Jan. 14, 2015 letter to the President demands that copies of the final SSCI report already distributed throughout the Executive Branch "should not be entered into any Executive Branch system of records" and that all copies in the possession of federal agencies should "immediately" be transferred to the SSCI.  At best, these demands are based on a simplistic interpretation of the law.  At worst, they constitute a demand by a Senator that federal employees unlawfully remove records from agency custody.

Thus far the analysis has focused on Sen. Burr's transparent motivation to help CIA's tenuous litigation position that the copies are not "agency records" under FOIA case law.  Sen. Burr's ham-handed demands, however, simultaneously ignore agency legal obligations to preserve, manage, and maintain agency "records" - as separately defined under the federal record keeping laws.  That is, even if Sen. Burr and CIA were successful in confusing Judge Boasberg enough to hold that agency copies of the SSCI report are not "agency records" under FOIA, it doesn't necessarily mean that the agencies can lawfully surrender them to the SSCI as Sen. Burr is demanding.

First, at least some of the agency copies of the SSCI report should already constitute agency "records" under the federal records laws, which are specifically designed to avoid unsophisticated gimmicks such as Sen. Burr's demand that the report "not be entered into any Executive Branch system of records." The broad definition  of a "record" includes "all recorded information . . . received by a Federal agency" that is "preserved or appropriate for preservation."  NARA regulations define "preserved" to include "storing" and can expressly cover materials not actually in a filing system.  "Appropriate for preservation" also includes material that "should be filed . . . even if the materials are not covered by its current filing or maintenance procedures."

Second, under the federal records laws, each and every copy (or partial copy) whether hardcopy or digital within the Executive Branch could potentially be analyzed separately as a record. See, e.g., 36 C.F.R. § 1222.12 ("Record status of copies . . . Multiple copies of the same document and documents containing duplicative information may each have record status").

Third, to the extent that there is uncertainty about whether copies already in agency custody are records under the federal records laws, neither Sen. Burr nor the Senate Parliamentarian nor Judge Boasberg in the FOIA case nor even the President is the final arbiter. Last November, Congress expressly granted binding legal authority to determine whether something is a record to the Archivist of the United States, who perhaps should get his boots on.

Finally, if the copies of the SSCI report are records under the federal records laws, they may not be removed from agency custody, alienated, destroyed, etc. without authority from the Archivist. Doing so without proper authority violates the law and, under some circumstances, can even constitute a criminal act.

In the end, this will hopefully be moot at least as to the SSCI report.  It is difficult to imagine Judge Boasberg won't see through Sen. Burr's/CIA's attempted ruse and he ought to be more offended than persuaded.  But in the bigger picture, the situation provides yet more evidence that CIA simply cannot be trusted with its own records. See also herehereherehere.