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Court Rules CIA Must
Release Records
A Washington, D.C., reporter may view
operational files on mind control experiments
by the CIA, a federal district court ruled in early August
A federal district court in Washington, D.C., August 8 granted
reporter John F. Kelly limited but highly unusual access to some
Central Intelligence Agency operational files in his request for
records concerning the federal government's mind control experiments
of the 1950s.
Judge Thomas Hogan ruled that the CIA must search and review its
operational files for information concerning the MKULTRA project, and
make all releasable information from those files available to Kelly.
MKULTRA was the government's attempt begun in 1953 to respond to
"brainwashing" activities attributed to Soviet and Chinese governments
by conducting drug and other behavior modification experiments on
unwitting victims. It involved more than 149 sub-projects
contracted out to 80 institutions.
Under the CIA Intelligence Act of 1984, Congress allowed the CIA to
exclude its operational files from Freedom of Information Act
processing in exchange for its promise to greatly improve its pace for
responding to FOI requests for other, less sensitive, files.
However, that act specifically stated that the CIA could not claim
the operational files exclusion when an FOI request concerned a matter
that had been investigated by intelligence committees in Congress, the
Intelligence Oversight Board, or specific, named, investigatory
offices at the CIA or the Department of Justice.
Because the MKULTRA program has been the subject of numerous
investigations by Congress, the CIA, and the Justice Department, the
CIA must search its operational files for records on it and grant
Kelly access to those that are not exempt, Hogan ruled.
In briefs to the court, neither Kelly nor the CIA cited any other
cases in which the statutory exclusion of operational files had been
set aside because of previous governmental investigations. The
government interprets the statute as authorizing it to pretend that
records which are requested but excludable simply do not exist.
Only those requesters who actually know of this practice realize that
they can challenge the government for withholding records that it will
not admit it has.
Kelly, author of Tainted Evidence, a book about the FBI's
failures to preserve evidence, has written earlier articles about
victims of the MKULTRA program.
In December 2000, he asked for all information showing CIA
connections with the University of Cincinnati and the University of
California at Los Angeles. The CIA refused to confirm or deny
the existence of records that might reveal covert relationships but
ultimately released some records showing an overt relationships
between the agency and the schools, claiming several exemptions to
withhold portions of the records. Kelly sued.
The court allowed the agency to refuse to confirm or deny that
responsive records concerning covert activities exist and allowed it
to withhold other information under the FOI Act's exemptions for
classified records, for records protected by other statutes and for
privileged information. The court's sole concession to Kelly was
for a chance to see operational files on a subject that had been
investigated.
Few of the MKULTRA records still exist. Then-CIA Director
Richard Helms, who as a deputy 20 years earlier initiated the MKULTRA
project, ordered records of it destroyed before his retirement in
1973. However, an FOI request for them in 1977 uncovered 16,000
pages of the project's financial records that had been overlooked.
The U.S. Supreme Court in 1985 in CIA v. Sims ruled that
intelligence sources who had been guaranteed confidentiality on the
MKULTRA projects would remain secret.
City Hall Bans Reporter for
Requisitioning Public Records
When the editor of the Eldorado (Okla.) Courier
complained about being denied access to public records, council
members voted to keep her out of municipal offices
From the "politicians-are-stranger-than-fiction" department, this
item recently crossed our desk. The editor (and one-and-only
employee) of the sole newspaper for Eldorado, Okla., has tried
since last spring to obtain various municipal records from the city's
main offices. But the city's five-member trustee board denounced
Darlene Leese as a "troublemaker" and voted to ban her from city hall.
The board also said Leese was rude and used abuse and threatening
language against city employees.
After calls and letters from the Oklahoma Press Association and
articles in some of the state's daily newspapers, the Oklahoma
attorney general has promised to look into the matter.
Mark Thomas, executive director of the press association based in
Oklahoma City, said he received notice today from state Attorney
General Drew Edmondson that the state's top attorney would respond to
the matter by next week.
Leese "is not a bully, and she's not asking for anything unusual,"
Thomas said.
About two years ago, Leese took over the newspaper--circulation
489--from its former owner who left to become a schoolteacher, Thomas
said. In her research into city hiring matters, Leese requested
documents detailing salaries, disbursements and other data.
But the town's two clerks complained to the town attorney about the
cumbersome workload resulting from Leese's requests. The
attorney then told Leese that to obtain the data, she would have to
pay a 25-cents-per-page copying fee as well as the clerks' hourly
wages for searching.
While the state's open records law does allow the copying fee,
Thomas said that it prohibits search fees for media requests.
The law does not have a specific complaint procedure if requests
are denied or if public officials violate regulations. But it
does allow plaintiffs to collect attorneys fees if they choose to sue
and win.
However, "Leese doesn't want to dig into the taxpayers' pockets,"
said Thomas. "She just wants the information."
After Leese was banned from city hall in an April 4 vote by the
board, Thomas contacted the town attorney, the district attorney, and
the state attorney general's office.
"I have never heard of a news reporter being banned from a city
hall," he said. "Never."
Newspaper Sues for
Iowa State Supreme Court Records
The Des Moines Register filed
a lawsuit for access to court records in a high-profile case
involving Planned Parenthood and an abandoned baby
Iowa's Des Moines Register sued for court records |
When the
Iowa Supreme Court issued an order in early August, blocking a
lower court ruling against a local Planned Parenthood office,
journalists were elated. They had been trying to examine
the state high court's documents.
But reporters to date have been denied access to that order,
as well as the original ruling from the lower court that orders
Planned Parenthood to turn over the names of all women who had
positive pregnancy tests between last August and May.
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| The Des Moines
Register has filed suit against the Buena Vista County
Clerk's office to obtain access to those original orders and
expects a resolution by the end of August. The paper's
attorneys also filed a written request with the clerk of the
Iowa Supreme Court. But attorney Michael A. Giudicessi said that
"it's anyone's guess" when that court will respond.
The case, which has gained national media attention, centers
on a newborn baby boy found dead in a Buena Vista County
recycling center's shredding machine on May 30. Police
have not been able to find the baby's parents, so they have
requested lists of women from clinics and doctors in the area
who may have given birth around the end of May or were given
pregnancy tests up to nine months before that.
Several doctors have complied, but Planned Parenthood has
refused, saying those medical records--about 1,000 of them--are
private. The organization has not complied with two orders
from a county district judge to turn over the records and
appealed to the state Supreme Court. The court stayed the
lower court's order on Aug. 6. The court's decision also
put on hold penalties against the Planned Parenthood director,
who was told to turn over the documents by Aug. 17 or face fines
or jail time for contempt of court.
In response, the Des Moines Register ran an editorial
blasting the practice of keeping court records private:
"The battle between the Buena Vista county attorney
and Planned Parenthood of Greater Iowa over access to
patients" records exposes a potential gap in privacy
protections in Iowa law. But it has also exposed another
disturbing possibility: This entire battle might have played
out entirely under cover of official court secrecy.
"The Buena Vista battle came to light last month when the
county prosecutor investigating the murder of an infant issued
a subpoena duces tecum - a court-approved order for
certain evidence to be produced - for the names and addresses
of women who took pregnancy tests at the Planned Parenthood
clinic in Storm Lake.
"Many people share Planned Parenthood's belief that this
sweeping search would unnecessarily invade the privacy of
innocent women. What most people may not know, however, is
that this breach of privacy and subsequent court battles could
have happened without the public - including the women whose
records might be opened to inspection by prosecutors - having
had a clue that it happened.
"This story came to light only because Planned Parenthood
has made certain the public is aware of what's going on.
"The latest angle to the story emerged when Planned
Parenthood filed a motion in court to block the subpoena.
District Judge Frank B. Nelson's two-page ruling denying
Planned Parenthood's motion was filed with the Buena Vista
County clerk of court on July 15, but it became public later
that week only after Planned Parenthood's lawyers released a
copy to The Des Moines Register.
"Indeed, the court clerk still will not release the ruling
to the public, saying it is a 'confidential county attorney
subpoena.'
"In fact, there is a provision in the Iowa Supreme Court's
rules of criminal procedure that provides that a prosecutor's
application for a subpoena in criminal cases, and a judge's
approval of the application, 'shall be maintained by the clerk
in a confidential file until a charge is filed.'
"By itself, this rule is troubling. Prosecutors may need
time to subpoena testimony or evidence in some criminal cases
without tipping off potential suspects, but it is troubling
that Iowa law clamps an automatic lid on all
prosecutors" subpoenas, regardless of the merits, and that
they could be permanently sealed if criminal charges are never
filed. It's conceivable that an innocent party could be the
target of an abusive prosecutor, and no one else would be the
wiser.
"Even more troubling, however, is the idea that all
judicial proceedings related to the secret subpoenas -
apparently even appeals to the Iowa Supreme Court - would be
kept secret, too.
"That just cannot be. Public courts are a hallmark of the
American system of justice, civil and criminal. We do not have
secret tribunals in this country. Whatever the excuse for
secrecy in criminal investigations, it simply cannot be
extended to the courts.
"Judge Nelson should clarify that for the clerk. If he does
not, the Supreme Court should do it for him." - The Des
Moines Register
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