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2003 FOI update: The courts

By Harry Hammitt

Last year started with considerable hope that the courts were going to be the backstop for civil liberties and the right of access in the face of continued government movement toward limiting access. But by the end of 2002 the record was a decidedly mixed bag, and perhaps the best thing that could be said was that access rights were still largely intact, although our ability to use FOIA to find out about some of the most pressing current issues was being aggressively challenged by the government.

Policy initiatives
Last March, White House Chief of Staff Andrew Card issued a memo to agencies concerning the need to maintain vigilance in protecting any records pertaining to weapons of mass destruction, with particular emphasis on information that could be used for bio-terrorism. While the Card memo once again raised the issue of “sensitive but unclassified” information, it also began a new chapter in the occasional government clampdown on the public availability of scientific research that might have military or terrorist applications. The scientific community was asked to voluntarily restrict access to information on such topics. As to the sensitive but unclassified issue, the Office of Management and Budget and others have begun studying how such a restriction could be translated into policy.

Members of the classification community confirmed that the Bush administration is working on a new executive order on classification. While many outsiders assumed the administration would produce a wholesale rewrite of the Clinton executive order, what little is known about the new order suggests that the idea of automatic declassification after a period of years is here to stay, although it might be tempered a bit.

Last year also saw the introduction of a draft policy for protecting privacy in court records while retaining the public availability of the documents. Data elements such as Social Security numbers, credit card information and other sensitive personal information would routinely be redacted either before records entered the system or in existing records, but public availability, at least at the courthouse level, would remain the norm. The policy debate was so fierce during discussions on the draft guidelines that the published guidelines tend to contain detailed recommendations rather than hard and fast rules.

FOIA litigation
The most high-profile FOIA litigation in 2002 was the suit filed by a number of public interest groups to force the government to disclose the names of detainees arrested after the Sept. 11, 2001, terror attacks. In Center for National Security Studies v. Dept. of Justice (D.D.C., Aug. 2, 2002), U.S. District Judge Gladys Kessler ruled that the government must disclose the identities of almost all detainees as well as the names of their attorneys, finding that neither FOIA’s Exemption 7(A) (interference with ongoing investigation or proceedings) nor Exemption 7(C) (invasion of privacy concerning law enforcement records) applied. In rejecting the government’s mosaic theory — that innocuous pieces of information could provide sophisticated requesters with enough information to flesh out the entire picture — Kessler said that “application of the mosaic theory would essentially turn 7(A) into an exemption dragnet, as it would permit the Government to lump together all information related to an ongoing government investigation and withhold it solely because innocuous parts of data might be pieced together by terrorist groups.” The case is now on appeal before the D.C. Circuit.

There were other important FOIA decisions, including a ringing reaffirmation of the D.C. Circuit’s seminal decision in National Security Archive v. Department of Defense, in which the court ruled that an organization with a stated plan for publishing and disseminating government records qualified under FOIA for news media status. Last year, Defense Department officials decided that EPIC, a public interest group specializing in electronic privacy and civil liberties issues, did not qualify as a member of the news media, even though it disseminated an electronic newsletter and published a number of specialized books. In EPIC v. Department of Defense (D.D.C., Jan. 16, 2003) U.S. District Judge John Bates ruled that EPIC qualified under the National Security Archive standard.

Public Citizen scored a major procedural victory in early 2002 when it convinced the D.C. Circuit in Public Citizen v. Department of State (D.C. Cir. Jan. 25, 2002) that agencies must search for all records available as of the date the search is conducted, rather than only those that were produced by the date of the request itself, which, because of backlogs, can often be months or even years earlier.

FOIA attorneys hoping to win attorneys' fees from the government were dealt a severe setback in Oil, Chemical and Atomic Workers International Union, AFL-CIO v. Department of Energy (D.C. Cir., May 10, 2002). The court adopted the holding of a 2001 Supreme Court ruling, Buckhannon Board & Care Homes v. West Virginia Dept. of Health & Human Resources, in which the Court held that a plaintiff could only prevail for purposes of attorneys' fees if the court actually issued an order in favor of the plaintiff. Previously, courts had awarded fees in cases in which the suit caused a favorable result, regardless of whether the result was brought about by court order.

Finally, a case before the Supreme Court, Department of Treasury v. City of Chicago, was short-circuited when Congress passed an amendment to the massive budget bill prohibiting the Bureau of Alcohol, Tobacco and Firearms from using appropriated funds to respond to FOIA requests for data about gun sales. In February 2003, the Supreme Court decided not to hear the case, sending it back instead to the 7th U.S. Circuit Court of Appeals to decide the effect of the last-minute congressional action.

Other judicial activity
While the detainees' suit in Washington was the centerpiece of FOIA litigation concerning the war on terrorism, there were several other important decisions closely tied to the FOIA suit. In New Jersey, a state court judge ruled that two county jails holding INS detainees under contract must disclose their identities under New Jersey’s open- records law. However, a state appeals court overturned that decision in ACLU of New Jersey v. County of Hudson and County of Passaic, (NJ Superior Ct, App. Div, June 12, 2002), accepting a subsequently issued INS regulation prohibiting contracting jails from disclosing the identities of INS detainees under applicable state law.

In a clash of circuits, the 6th Circuit in Cincinnati ruled, in Detroit Free Press v. Ashcroft (6th Cir., Aug. 26, 2002), that the government could not apply a blanket-closure rule to “special interest” deportation proceedings, but rather had to show the proceedings needed to be closed on a case-by-case basis. However, the 3rd Circuit ruled in favor of the government’s blanket closure in North Jersey Media Group v. Ashcroft (3d Cir., Oct. 8, 2002).

In an important case not involving terrorism, but involving the administration’s clear preference for avoiding congressional oversight where possible, Vice President Dick Cheney scored an impressive victory over the congressional General Accounting Office in Walker v. Cheney (D.D.C., Dec. 9, 2002). GAO had sued Cheney and his energy task force to force them to identify the parties they talked to when developing the administration’s energy policy. Cheney had refused to provide the information and Judge John Bates ruled in his favor, finding that GAO did not have standing to bring the suit because it had not personally been injured by the refusal. GAO later decided it was futile to appeal the decision, which leaves a situation in which the executive branch can refuse to cooperate with GAO with impunity unless a congressional committee is willing to back up GAO’s audit work with a subpoena and a potential court fight.

Other litigation
There was more high-profile litigation last year under the Family Educational Rights and Privacy Act, including two Supreme Court decisions, than there had been in years. In Gonzaga University v. Doe (S.Ct, June 20, 2002), the Supreme Court ruled that a private cause of action under FERPA could not be implied but had to be specifically stated. This means that only the U.S. Department of Education has standing to enforce the provisions of FERPA. In an important access decision, United States v. Miami University (6th Cir., June 27, 2002), the 6th Circuit ruled that the Education Department could sue two Ohio universities to prevent them from disclosing information about student disciplinary actions.

Privacy protections were also scaled back using the war on terrorism as a justification. While most of these cutbacks involved increased surveillance, an important component was increased data-sharing among government agencies. To the extent that data-sharing increased, data-matching increased as well. It is safe to assume that many of the data- matching projects that have proceeded largely on the basis of terrorist concerns skirted any procedural protections provided by the Privacy Act.

The terrorist attacks of 2001 have continued to drive restrictions on access and privacy protections. While the courts have provided some relief in pushing back against these restrictions, the scorecard in 2002 was decidedly mixed. The GAO case also showed that support for the government’s war on terrorism can have some ancillary value in pressing the administration’s case against information disclosure generally. FOIA is seen as one piece of legislation in the arsenal promoting government accountability and to the extent that the public is satisfied with government actions, it may be more willing to give the government the benefit of the doubt when it comes to non-disclosure. As a result, the political future may well be important to the future state of access. If the administration continues to garner public support, it will probably be willing to take more aggressive action to protect its records. But if events turn around, popular support may melt away and the administration may find itself forced to submit to a greater level of disclosure.

Harry Hammitt is the editor of Access Reports.

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