NCH Letter to Federal Court of Appeals Seeking Review of FOIA Decision

August 27, 2012

Clerk’s Office
U.S. Court of Appeals for the District of Columbia Circuit
E. Barrett Prettyman U.S. Courthouse & Bryant Annex
333 Constitution Ave., NW
Washington, D.C. 20001

To the United States Court of Appeals for the District of Columbia Circuit:

The undersigned organizations represent tens of thousands of historians, archivists, political scientists, educators and researchers, both in the United States and abroad. We are writing to express our concerns with the case of National Security Archive v. Central Intelligence Agency (No. 12-5201), which is now on appeal before this Court. The case involves denial of a Freedom of Information Act request filed by the National Security Archive seeking release of historical materials related to the CIA’s handling of the Bay of Pigs invasion in 1961.

We specifically oppose the government’s motion for summary affirmance. The National Security Archive’s lawsuit raises serious questions that deserve the Court’s full consideration on the merits. We feel this case should not be decided without a full hearing, which includes the views of the diverse membership of the various organizations represented in this request. Our organizations would welcome the opportunity to present our views to the Court, whether in a separate amicus brief or in conjunction with other amici, in accordance with this Court’s local rules.

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.

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.

Because of the far-reaching consequences of this case, and the potential detriment that the district court’s opinion is likely to have on the work of our members, the undersigned organizations believe that these issues merit this Court’s careful consideration, including full briefing and argument.

Please contact Lee White, Executive Director of the National Coalition for History with any questions or further requests regarding this matter at (202)544-2422, x-116 or lwhite@historycoalition.org.

Respectfully,

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 Coalition for History
National Council on Public History
Organization of American Historians
Society for Historians of American Foreign Relations
Society for Military History
Society of American Archivists
Southern Historical Association