Cases & Deals

National Coalition for History files amicus brief before D.C. Circuit arguing novel FOIA issue

Client(s) National Coalition for History, The

In National Security Archive v. CIA, No. 12-5201, Jones Day represents The National Coalition For History ("The Coalition") as amicus curiae before the U.S. Court of Appeals for the D.C. Circuit. The Coalition is a 501(c)(3) non-profit educational organization based in Washington, D.C. that represents tens of thousands of historians, archivists, political scientists, educators and researchers, both in the United States and abroad, and is active in history-related advocacy on federal legislative, legal, and regulatory issues affecting these constituencies.

The case centers around the National Security Archive’s rejected FOIA request to the CIA seeking disclosure of an internal draft history relating to the failed Bay of Pigs invasion ("Volume V"). The CIA is withholding Volume V under FOIA Exemption 5—which protects documents that would not generally be subject to production in a civil litigation due to a privilege—claiming that Volume V is protected by the deliberative process privilege.

As counsel for amicus, Jones Day argued in briefing that courts should consider the passage of time when determining whether the Government is making a valid claim under Exemption 5, because the potential harm of disclosure diminishes as the time between the drafting and disclosure of the document increases. This is a question of first impression in the D.C. Circuit. Here, Volume V was draft more than 30 years ago (about events that occurred more than 50 years ago), and thus there is no harm associated with disclosure at this time. A ruling to the contrary would prevent historians for accessing Volume V and similar documents that provide invaluable insight into the past, allowing for the drafting of complete and accurate histories.

Oral argument has not been scheduled.

National Security Archive v. CIA, No. 12-5201 (D.C. Cir.)