Last year marked something of a turning point in access litigation. After several years of minor victories followed by major defeats, momentum during 2005 clearly seemed to favor the requester rather than the government. Several district courts began to reject what they considered rampant speculation on the part of the government in protecting information concerning U.S. treatment of detainees, both in Iraq and Guantanamo Bay. Arguments about how information might be used to aid and abet terrorists that were accepted almost reflexively several years ago were greeted with skepticism, even disdain, in a number of cases.
There were several decisions by the D.C. Circuit that strongly endorsed the sanctity of the deliberative-process privilege and the attorney work-product privilege, decisions that rolled back significant expansions established at the district court level. However, these decisions were largely balanced by a solid win in the 2nd U.S. Circuit Court of Appeals on the issue of waiver of privileges, a decision that is already being used as a tool to attack privileged documents.
The 6th Circuit began to chip away at the restrictions imposed by the Supreme Court on attorneys fees awards. But this year also revealed the initial dimensions of a new federal policy that mates privacy with terrorism as the rationale for withholding names and addresses of federal employees.
Court decisions on terrorism claims
District Judge Alvin Hellerstein of the Southern District of New York emerged, hands down, as last year’s champion of the concept of access. In ACLU v. Department of Defense, 389 F. Supp. 2d 547 (D. SDNY, 2005), a closely watched case filed by the ACLU and other public-interest groups against various government agencies for records concerning U.S. treatment of detainees, Hellerstein was invariably skeptical of government claims. And though he sided with the government occasionally, he articulated the argument in favor of access more forcefully than most judges had done in years.
Hellerstein dismissed “the government’s argument that reasoning must stop once a threat to life or safety is discerned,” and ordered the Defense Department to disclose redacted versions of the photos taken by reservist Joseph Darby at Abu Ghraib prison in Iraq. He dismissed the government’s claim that disclosure of the photos would be followed by publication, which would inflame anti-American sentiment in the Middle East and endanger American soldiers and civilians.
He also dismissed the post-9/11 elasticity the government has read into FOIA Exemption 7(F), which allows for withholding law enforcement records where disclosure could harm the physical safety of an individual. Hellerstein ruled the exemption applied only to individuals somehow involved in the investigation.
Hellerstein observed that “the Darby photographs are being withheld, not to protect anyone involved in the courts martial investigation and prosecutions, but for another purpose. … The sole justification for suppressing the photographs is DOD’s concern about speech — generally, how some might exploit the Darby photographs, in propaganda and in terrorist activities, by arguing, through false extension, that the pictures represent the attitudes of all American soldiers, or indeed of all Americans, toward the Iraqi people.”
The ACLU victory was followed later by another solid win, this time by the Associated Press. In Associated Press v. Department of Defense (No. 05-3941 (JSR), D. SDNY, Jan. 4 and Jan. 23, 2006), District Judge Jed Rakoff also rejected broad assertions of privacy made on behalf of detainees at Guantanamo Bay and their families. Rakoff earlier ordered the Defense Department to poll the detainees to find out if they objected to the disclosure of personal information. After finding that only 17 of 317 detainees had affirmatively objected, Rakoff ruled that transcripts of their appearances before a military tribunal must be disclosed because they had no reasonable expectation of privacy.
Noting that the press was present at these hearings, he pointed out that “the notion, therefore, that the detainees, in voluntarily providing sworn recorded testimony to a quasi-judicial tribunal, nonetheless retained a reasonable expectation that their identifying information would remain confidential, is entirely without evidentiary support on this record.”
He found the agency’s claim of privacy on behalf of families and friends to be even more conjectural. “It is theoretically possible, of course, that the family of a detainee may not want his, or their, names and whereabouts revealed because of fears of embarrassment or retaliation; but how can this be said to be a privacy interest, when they never had any reasonable expectation that the detainee and/or his captors would not reveal his and their names?”
A third case, Gerstein v. Dept. of Justice (No. C-03-04893 RMW, D. ND Cal, 2005), involved a request for information about which the U.S. attorney’s offices had used special “sneak and peek” warrants authorized by Section 213 of the Patriot Act. The Justice Department claimed the information was protected by FOIA Exemption 7(E) (investigative methods and techniques) because disclosure would allow criminals to discern which offices were the least aggressive in using the warrants. Rejecting that claim, the court noted that 94 U.S. attorney’s offices had used the warrant only 60 times and pointed out that “one does not need to be a statistician to recognize that the predictive value of such a small sample is exceedingly low.” The court added that “the court finds the notion that criminals will plan illegal activity based on whether a particular USAO has invoked Section 213 to be dubious.”
The D.C. Circuit issued two decisions affirming the government’s right to claim that records were protected by the deliberative-process privilege or the attorney work-product privilege. In the more significant of the two, the appeals court in Judicial Watch v. Department of Energy, 412 F.3d 125 (D.C. Cir. 2005), reversed the district court’s holding that records created by employees of the Energy Department for use by the Cheney Energy Task Force were not protected by the deliberative-process privilege because, since the task force was not an agency, the records provided to it did not qualify as inter- or intra-agency records. The district court had also found that Energy Department staff detailed to the task force remained employees of Energy and that, as a result, their records were agency records that must be disclosed unless exempt.
The D.C. Circuit found that the fact that the task force was not an agency did not lead to the conclusion that it was not covered by the deliberative-process privilege. The court noted that “we are aware of no reason to believe — indeed, we think it inconceivable — the Congress intended Exemption 5 to protect the decision-making processes of the Executive Branch when the decision is to be made by ‘agency’ officials subject to oversight by the President and not when the decision is to be made by the President himself and those same agency officials are acting in aid of his decision-making processes.”
On the issue of agency records, the court observed that “because the circumstances amply support the DOE’s assertion that the detailees were as a practical matter employees of the [energy task force], and not the agency, it follows that the records those employees created or obtained while on detail were those of the [task force], not those of the DOE, and hence not ‘agency records’ within the meaning of the FOIA.”
In the second decision, the D.C. Circuit reaffirmed that the attorney work-product privilege covered both factual and opinion material. District Judge Emmet Sullivan had ruled earlier that, even though certain records were protected by the attorney work-product privilege, the Justice Department was required to perform a segregability review for purposes of disclosing any non-exempt factual material. In Judicial Watch v. Department of Justice (No. 04-5444, USCA DC, Dec. 27, 2005), the appeals court indicated that “the circuit’s case law is clear that … factual material is itself privileged when it appears within documents that are attorney work product. If a document is fully protected as work product, then segregability is not required.”
Though these two decisions favored the government’s ability to withhold information as privileged, the 2nd Circuit ruled in National Council of La Raza v Department of Justice, 411 F.3d 350 (2d Cir. 2005), that constant and consistent reliance on a legal memo to justify a change in legal interpretation of immigration law was sufficient to show that the Justice Department had waived any claimed privilege by adopting the memo as the basis for its policy. The court noted that “the repeated references to the [Office of Legal Counsel] Memorandum made by the Attorney General and high-ranking advisors, the substance of their comments, and the way in which their comments were used — that is, to assure third parties as to the legality of the actions the third parties were being urged to take — are sufficient to establish that the Department incorporated the Memorandum into its new policy regarding state and local immigration law enforcement authority.”
The appeals court’s holding was relied on by a district court in finding that another OLC memo prepared for the FBI, also pertaining to immigration law, had been incorporated by adoption. In Bronx Defenders v. Department of Homeland Security, 2005 WL 3462725 (SDNY), the court indicated that “while it is true the facts of La Raza showed public and repeated reliance by the Attorney General on a particular OLC memo, it does not follow that anything less than that will fail to abrogate the privilege.”
Awards of attorneys fees under FOIA have suffered significant cutbacks based on case law, particularly as a result of the Supreme Court’s decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001). Buckhannon, which has since been applied to FOIA, held that the statutory term “substantially prevails” meant that a court had to rule on the merits in favor of the plaintiff, not that the plaintiff’s suit was a significant contributing cause in bringing about a favorable outcome.
District courts in the 6th Circuit have found that a court need not rule on the merits for a plaintiff to be eligible for attorneys fees, finding instead that granting summary judgment in favor of a plaintiff without ruling on the merits of the case is sufficient. In 2004, a district court ruled in AutoAlliance International v. Customs Service, 300 F. Supp. 2d 509 (D.ED Mich 2004), that the plaintiffs were entitled to fees even though the Customs Service disclosed records without a court order requiring it to do so. AutoAlliance was followed in Beacon Journal v. Gonzales, 2005 U.S. Dist. Lexis 28109 (D. ND Ohio 2005). There, the court found the newspaper was entitled to fees for forcing the Marshals Service to change its policy regarding access to mug shots. Again, the agency took the action short of a court order.
Although the government dropped its appeal of the district court’s ruling in AutoAlliance, the 6th Circuit, ruling on the plaintiff’s cross-appeal, affirmed the award of attorneys fees in AutoAlliance International v. Customs Service, 2005 WL 3149673, 155 Fed. Appx. 226 (C.A. 6).
The D.C. Circuit established the right of a plaintiff to an award of attorneys fees for prevailing on a motion for expedited review. In Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005), the court explained that Congress recognized “the value in hastening release of certain information, by creating a statutory right to expedited processing and providing for judicial review of its denial. When, pursuant to court order, the FBI finished processing Edmonds’ request two months earlier than it would have in the absence of the order, she vindicated that statutory right.”
Names and addresses
This year several courts have broached the subject of whether disclosure of the name of a federal employee constitutes an invasion of privacy. However, in accordance with the case law since the Supreme Court decision in U.S. Department of Justice v. Reporters Committee, 489 U.S. 749 (1989), agencies have routinely withheld almost any personally identifying information. While straightforward directory information has still been available, even that seems to be changing. The Transactional Records Access Clearinghouse has filed suit against the Office of Personnel Management for refusing to disclose a database of such information, claiming that it is withholding the names of federal employees whose jobs may make them more susceptible to harassment. The claim is essentially a combination of privacy and terrorism justifications.
Where to file suit
One trend that has not been discussed much that became clear in 2005 is a movement of FOIA’s center of gravity from the courts in the District of Columbia to New York City. While Washington remains the jurisdiction of universal venue, which means any FOIA case can be filed there, plaintiffs have started moving out of the District and many of those suits have ended up in the Southern District of New York. To judge from decisions in 2005, the federal courts there appear to be much friendlier to plaintiffs than those in the District.
It is difficult to say why New York has become such a focal point, but the clear message in 2005 was that sophisticated plaintiffs no longer turn to the federal bench in Washington when suit can be brought somewhere else.
While the amount of litigation in New York has exploded, plaintiffs have also had success bringing cases in California. In the past, the conventional wisdom has been that judges in the District knew the law better than anyone else and could be depended on to provide the most knowledgeable review. However, as the tenor of the federal bench in Washington has become more conservative, the case law has become less favorable to plaintiffs.
The shift towards New York and to a lesser extent California illustrates that plaintiffs are seeking a more favorable hearing.
There is rarely any unifying theme to state litigation, but, as always, there were some interesting cases. A sampling follows.
Colorado: The state Supreme Court, in The Denver Publishing Company v. The Board of County Commissioners of the County of Arapahoe, ruled that steamy e-mails that passed between the Arapahoe County Clerk and his deputy clerk were not public records because they had nothing to do with public business. The court’s unpublished decision seemed to ignore that the e-mails had been crucial to an investigation of the Clerk’s Office on charges of sexual harassment.
Delaware: Perhaps the most interesting decision was issued by a federal court in Delaware, striking down a provision in the state’s open-records law restricting its use to state citizens. In Matthew Lee v. Minner, the court found that there was no rational basis for the distinction and that it violated the Constitution’s privileges-and-immunities clause.
Iowa and Kentucky: Two cases revealed contrasting approaches to access to records of university foundations. In Cape Publications v. University of Louisville Foundation, the Kentucky Court of Appeals ruled that disclosure of donors to the foundation would be an invasion of privacy. (The state high court has agreed to review the case.) But the Iowa Supreme Court ruled, in Gannon v. Board of Regents of the State of Iowa, 692 N.W.2d 31, that the Iowa State University Foundation was subject to the open-records law because it was performing a government function.
New Jersey: An appellate court ruled that because a request was too burdensome the agency was not obligated to respond. In MAG Entertainment v. Division of Alcoholic Beverage Control, 868 A.2d 1067, the court found that “wholesale requests for general information to be analyzed, collated, and compiled by the responding government entity are not encompassed [by the statute]. In short, [the Open Public Records Act] does not countenance open-ended searches of an agency’s files.”
New York: The New York Court of Appeals ruled that a provision of a federal highway statute restricting disclosure of information about unsafe intersections to plaintiffs in automobile-accident litigation does not allow the state to withhold such information from the press. In Newsday v. State Department of Transportation, 833 N.E. 2d 210, the court noted that “Congress did not think that the possibility that some plaintiffs would indirectly obtain information [from disclosure to the press] justified requiring non-disclosure of the documents for all purposes.”
North Carolina: A court of appeals ruled that the Public Hospital Personnel Act prohibited the disclosure of total compensation of staff at hospitals under the Charlotte-Mecklenburg Hospital Authority. In Knight Publishing Co. v. Charlotte-Mecklenburg Hospital Authority (unpublished), the court noted that, although annual salaries were public, other aspects of compensation were protected by the Public Hospital Personnel Act.
Ohio: The Ohio Supreme Court upheld a statute providing a broad exemption for any information that would reveal the identity of an individual as a police officer. In State ex rel. Vindicator Printing Company v. City of Youngstown, 824 N.E. 2d 89, the court found that the law, passed by the General Assembly in response to a federal court ruling that police officers had a constitutionally protected right to privacy, covered official photographs of police officers that had been requested by the newspapers in Youngstown and Cleveland.
Pennsylvania: In a particularly outrageous decision, Tribune-Review Co. v. Bodack, 875 A.2d 402, an appellate court in Pennsylvania ruled that cell-phone records of members of the Pittsburgh City Council, though they are public records, need not be released because disclosure that an individual “called a public official or was called by some public official could cause public records to operate to the prejudice or impairment of a person’s reputation or personal security.”
A newspaper reporter in Pennsylvania managed to get salary information about Penn State University football coach Joe Paterno and several other Penn State employees by requesting information from the State Employees’ Retirement System. Although courts had found that state universities were not subject to the Right to Know Act, in Pennsylvania State University v. State Employees’ Retirement Board, 880 A.2d 757 (2004), the court of appeals concluded that once university employees took advantage of membership in the retirement fund they essentially waived their right to block access to their income and compensation records.
Vermont: The Vermont Supreme Court ruled that the State Archives Act trumped the Public Records Act when it came to determining when former Gov. Howard Dean’s records would be disclosed. In Judicial Watch, Inc. v. State of Vermont, the court found that the Archives Act was specifically aimed at such records and was thus more specific than provisions of the Public Records Act.
Washington: A court of appeals ruled that the names of Seattle-area teachers who had been accused of sexual misconduct should be disclosed except in those cases where the allegations had been shown to be patently false. In Bellevue John Does 1-11 v. Bellevue School District #405, 120 P.3d 616, the court observed that “the public has a legitimate interest in knowing the name of the accused teacher” even where the charges were unsubstantiated. “If a teacher’s record includes a number of complaints found to be ‘unsubstantiated,’” the court noted, “the pattern is more troubling than each individual complaint. Yet, if the teacher’s name in each individual complaint is withheld from public disclosure, the public will not be able to see any troubling pattern that might emerge concerning that teacher.”
The number of favorable decisions last year increased significantly from recent years. This fact alone indicates that the state of access has improved, although it may not become a long-term trend. As the administration’s political credibility eroded, courts showed greater skepticism of broad-based exemption claims that would have been accepted by courts without hesitation several years ago. But those kinds of claims still hinge on the actual state of the fight against terrorism and if attacks occur in the future courts may likely retreat back to the acceptance of previous years.
Speculative privacy claims have probably made courts more wary of privacy claims generally, but it appears unlikely that the government’s policy toward the coverage of the privacy exemptions will be rolled back and privacy claims will regain their position as the most contentious area of disagreement between agencies and requesters once and if the threat of terrorism recedes.
Harry Hammitt is the editor and publisher of Access Reports, a biweekly journal of news and analysis of FOI jurisprudence.