Court Denies FOIA Request for Panetta Review on CIA Torture

U.S. District Court Judge James Boasberg today said that the CIA is not obligated to release the Panetta Review, an internal review of the CIA’s torture program that was heavily relied on during the drafting of the Senate Intelligence Committee (SSCI) torture report.

In December 2013, Vice News’ Jason Leopold submitted a FOIA request to the CIA seeking the “internal study” now known as the Panetta Review after then-Sen. Mark Udall (D-Colo.) publicly referenced it during a Senate hearing. The study is said to contain a scathing review of the agency’s post-9/11 interrogation and detention methods. Needless to say, the CIA has fought its release, claiming numerous exemptions from FOIA apply to the classified report. (The agency is specifically citing three FOIA exemptions: Exemption 5, covering inter- or intra-agency memos that could be privileged, or withheld from release, in the civil discovery context; Exemption 1, covering documents that are properly classified pursuant to an executive order; and Exemption 3, covering situations where another statute requires nondisclosure.)

In his opinion, Judge Boasberg relied on the CIA’s assertions that the Panetta Review documents were prepared to aid senior officials in deciding how to respond to the SSCI’s investigation and are thereby covered by Exemption 5’s deliberative process protections.

To receive this privilege, documents must be both “predecisional” — created before the adoption of an agency policy — and “deliberative” — reflective of an ongoing decision-making process. The court also accepted the CIA’s arguments that disclosure of the documents would reveal the deliberative policy discussions that members of the Special Review Team (a group of CIA staff tasked with reviewing the agency’s  so called rendition, detention, and interrogation program) were having as they formulated a plan for responding to the Senate investigation.

The ruling should come as no surprise given the fact that FOIA cases are frequently resolved based on affidavits from government agencies explaining how the documents were created. No word yet on whether Leopold will appeal the decision, but given the CIA’s explanation of how the Panetta Review documents came to be, it seems highly unlikely they will ever see the light of day under FOIA.

You can find the full opinion below: 
 

About the Author(s)

Megan Graham

Former Assistant Managing Editor and Security, Privacy, and Technology Fellow at Just Security Follow her on Twitter (@meganmcgraham).