2004 FOI update: The courts

Tuesday, March 16, 2004

The past year in the courts was not a particularly good one for freedom-of- information cases. The first two cases involving potential terrorist threats were decided — the government won both. In another case, the U.S. Circuit Court of Appeals for the District of Columbia overturned an impressive plaintiffs’ victory in the district court involving the disclosure of the names of those detained after Sept. 11; the court ruled that Exemption 7(A), which allows agencies to withhold records that could interfere with a law enforcement investigation or proceeding, covered all the records.

FOIA litigation
The two most significant decisions last year, because they dealt directly with the potential use of information to aid terrorism, were Coastal Delivery Corp. v. Customs Service (March 14, 2003), a district court decision in Los Angeles, and Living Rivers Inc. v. Bureau of Reclamation (March 25, 2003), a district court decision in Utah. Both cases involved information that had been considered public before the Sept. 11, 2001, terrorist attacks, but which now fell into the broad category of information considered potentially useful to terrorists.

Coastal Delivery involved a request for the number of off-site inspections made at the Port of Los Angeles. Coastal Delivery, a subcontractor hired to haul cargo for such off-site inspections, suspected that the contractor was not living up to the terms of its agreement. It asked Customs for only the number of off-site inspections, but Customs refused, suggesting a terrorist might gather similar information for all ports and then use it to determine how best to evade inspection.

Since FOIA does not have a “terrorism” exemption per se, the government has cobbled together several different exemptions, particularly Exemption 2, which can be used to withhold information where disclosure would allow for circumvention of a law or regulation, and several subsections of Exemption 7, particularly 7(E), protecting information pertaining to investigative methods and techniques, and 7(F), which allows an agency to withhold records where disclosure could endanger the safety of an individual. The judge in Los Angeles accepted Customs’ speculation, upholding its claims under both 7(E) and Exemption 2.

Living Rivers involved a request by a local environmental group for flood inundation maps for Hoover and Glen Canyon Dams, showing the potential consequences if either dam failed.

The Bureau of Land Reclamation provided an affidavit from its Director of Security, Safety and Law Enforcement (a position created after Sept. 11), in which he referred to a dam failure as a “weapon of mass destruction.” Even though the judge was sympathetic to the government’s concerns, she rejected both Exemption 2 and Exemption 7(E) before accepting Exemption 7(F), noting that the agency’s “statements concerning risk assessment by terrorists demonstrate that release of the maps could increase the risk of an attack on the dams.”

The use of concerns about terrorism to withhold a vast array of information, much of it previously public, was expected, but its consequences are potentially devastating to public access to government information. The likelihood that any given information could or would be used in planning terrorist activities is extremely speculative, but deceptively appealing as security concerns have become a matter of everyday life.

Information in city directories or even highway road maps could conceivably provide a terrorist with useful information, and it is hard to know how far down the information chain this kind of argument could go. The Town of Greenwich, Conn., argued that its GIS maps should no longer be available to the public because of terrorism implications. A judge, however, upheld the decision of the state’s FOI Commission that all the data elements in the GIS system were public and the maps themselves could not be withheld.

Beyond that, much of this information is still available from a variety of public sources. Last year a graduate student at George Mason University put together a detailed computerized map of infrastructure elements in the United States as his doctoral project. When it came to the attention of government officials, many claimed it was too dangerous and should be destroyed.

A recent master’s thesis done by a member of the Air Force studying at George Washington University concluded that information about the vulnerabilities of chemical plants could be gathered through public sources, even though such reports submitted to the EPA are currently available only on a restricted basis. The student’s conclusion was that withholding such information from the public created a sense of false security, since those who might really want the information for disruptive purposes could easily find it using other sources.

Detainees litigation
The D.C. Circuit issued a strong rebuke to the district court judge in the detainees case. While the district court had found the names of detainees should be disclosed, the appeals court ruled, in Center for National Security Studies v. Dept. of Justice (D.C. Cir. June 17, 2003), that the records were all legitimately part of an ongoing law enforcement investigation.

While that conclusion was consistent with existing case law, the court decided to go further, indicating that in the context of law enforcement investigations related to national security issues the court would defer to the government’s expertise. As a general proposition, courts rule on FOIA cases based on the merits of the parties’ arguments and do not give deference to the government. However, in Exemption 1 cases, which involve classified records pertaining to national security or foreign affairs, courts have traditionally deferred to agency expertise. This case was the first instance in which a court deferred to the agency on a law enforcement issue. On January 12, 2004, the Supreme Court declined to review the case.

The Supreme Court
The Supreme Court agreed to rule on several cases related to access or privacy during the 2003-2004 term.

In Office of Independent Counsel v. Favish, the Court was asked to overturn a decision by the 9th U.S. Circuit Court of Appeals in San Francisco, in which that court had decided that several previously unreleased photos taken during the Vince Foster suicide investigation should be disclosed because their release would not cause an unwarranted invasion of privacy. The court also said that Favish’s belief that there were still unanswered questions after several government investigations adequately showed a public interest in disclosure of the photos that outweighed the privacy interest.

Although the 9th Circuit decision would probably have faded into obscurity if left alone, the government decided to appeal to the Supreme Court where the case has turned into a debate over survivors’ rights of privacy. The Court probably will issue a ruling later this year.

The Court also has heard its first Privacy Act case. Although several Privacy Act cases were accepted in earlier years, all of them were settled before the Court actually heard oral arguments. The case this term, Doe v. Chao, from the 4th Circuit in Richmond, deals with the meaning of statutory damages under the Privacy Act. The Act allows an individual who has been adversely affected by a violation of the Privacy Act to collect actual damages or $1,000 in statutory damages.

The 4th Circuit ruled, contrary to all other circuits that have addressed the issue, that an individual first had to prove actual damages before being eligible for statutory damages. On Feb. 24, the Supreme Court, by a vote of 6-3, upheld the 4th Circuit’s decision, finding that a plaintiff must show some actual damages to qualify for the statutory award.

The case coming up, Cheney v. U.S. District Court, has attracted considerable media attention because it deals with a suit by two public-interest groups to force Vice President Cheney to disclose information about who his energy task force consulted in the process of preparing its report outlining a national energy policy.

The case is scheduled for oral arguments before the Supreme Court on April 27.

The news media has regularly reported that the district court and the D.C. Circuit ruled that Cheney had to turn over the records of the task force, but formally the case actually isn’t about disclosure at all. Rather, it is a classic separation of powers clash in which the government is contending the courts do not have jurisdiction to even consider the plaintiffs’ claims under the Federal Advisory Committee Act.

Because the government has taken this position from the beginning, it has consistently refused to review any of the records to determine if they should be withheld, arguing that, as a constitutional matter, they are not required to even defend the suit.

Both the district court and the D.C. Circuit ordered Cheney to provide a log of the task-force records along with any claims of exemption. Cheney will argue before the Court that he is not required to do so. While a ruling against him would move the FACA case along and possibly result in disclosure of records, a ruling in his favor would erect constitutional barriers to suing an advisory committee established at the presidential or vice presidential level.

Generally speaking, FOIA still works and agencies are still disclosing a great deal of information. But open-government statutes only work well when government is committed to making information public and does not actively try to chip away at access rights. The aftermath of the Sept. 11, terrorist attacks has caused information to frequently be seen in a negative light, as something potentially harmful to our collective security.

That attitude has fostered a willingness to withhold information that is at best marginally valuable to potential terrorists. However, in times like these, the government argues, it is better to err on the side of caution. While there is a degree of plausibility to that claim, it helps to feed the natural tendency of some in government to favor secrecy over access.

Unfortunately, the current administration seems to prefer the former over the latter. While this is not a plea for political change, it is safe to say that the state of access probably will not get better until the political power changes once again and the courts are less willing to defer to the government when it erects barriers to access.

Harry Hammitt edits and publishes Access Reports, a biweekly newsletter on the Freedom of Information Act and open government laws and policies.