Secrecy News

Court Orders FBI to Release Withheld Information

As often happens, the Federal Bureau of Investigation invoked national security a few years ago to justify withholding certain information from a Freedom of Information Act requester named Deirdre McKiernan Hetzler.

But as rarely happens, a court last month critically assessed the FBI national security claim and ordered the Bureau to release some of the withheld information.

Ms. Hetzler, acting pro se (i.e. without an attorney), had requested records concerning her deceased father, who had once been the subject of an FBI investigation.  The FBI provided her with some records but withheld others, stating that they remained classified in order to protect an intelligence activity.

But after reviewing the withheld records in camera, Judge Michael A. Telesca of the Western District of New York determined that some of the information contained in them was not exempt from disclosure under FOIA.  The FBI had been withholding it under the FOIA’s national security exemption even though it was actually unclassified or declassified.

“The Court is not persuaded that Defendants [the FBI and the Justice Department] have carried their burden of showing that disclosure of this information could cause serious damage to national security,” Judge Telesca wrote in a September 6, 2012 opinion.  He therefore ordered the FBI to reprocess the request and to release the information to Ms. Hetzler as specified in his ruling.

The Court here acted as a check on the normally unconstrained official tendency to classify and withhold information.  That is what judicial review is supposed to do, though it doesn’t happen very often.

Earlier this year, Judge Richard W. Roberts of the DC District ordered the U.S. Trade Representative to release a classified document to the Center for International Environmental Law (CIEL) because he found that the document was not properly classified.

The USTR “failed to provide a plausible or logical explanation of why disclosure of [the document] reasonably could be expected to damage United States foreign relations,” he wrote in his opinion ordering release.

The government has appealed that ruling.  Judge Roberts “inappropriately second-guessed the Executive’s expertise in the uniquely sensitive area of foreign relations,” the government said in its September 17 appeals brief.

No, on the contrary, CIEL responded in its own brief to the appeals court this week, Judge Roberts did exactly what the FOIA requires.

“A district court reviewing [an agency claim that a document is classified and exempt from disclosure] must give substantial weight to the agency’s explanations, but must not simply acquiesce in the agency’s determination,” CIEL attorneys wrote.

“Congress explicitly ‘stressed the need for an objective, independent judicial determination, and insisted that judges could be trusted to approach the national security determinations with common sense, and without jeopardy to national security’,” they wrote, citing prior FOIA case law.

The document that is being contested in this case is a one-page memorandum that presents the US government’s legal interpretation of the phrase “in like circumstances.”

The government says that because the document was shared confidentially with other governments as part of a (now-concluded) free trade negotiation, its involuntary disclosure would undermine the confidentiality of diplomatic negotiations.

Judge Roberts said this argument was not compelling “since the United States would be revealing its own position only” and would not be disclosing foreign government information that had been provided in confidence.

Indeed, “There is no expectation that a government is required to keep its own negotiating positions confidential from its own citizens,” said former US trade negotiator Daniel Magraw in a statement cited by CIEL.

CIEL said that “Under USTR’s interpretation, USTR could withhold any document — even a document whose release would otherwise cause absolutely no harm — simply by entering into a confidentiality arrangement and arguing that the breach of that arrangement would undermine trust and cause damage to US foreign relations; the withholding would be insulated from judicial review.”

“Fortunately, FOIA limits what an agency can make confidential,” CIEL wrote in its appeals brief.

A date for oral argument before the DC Circuit Court of Appeals has not yet been set.

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