In an opinion published this week, DC District Judge Richard W. Roberts did an astonishing thing that federal courts almost never do: He probed into the decision to classify a government document and concluded that it was not well-founded. He ordered the agency to release the document under the Freedom of Information Act.
The Center for International Environmental Law had sued the Office of the U.S. Trade Representative (USTR) to obtain a one-page position paper concerning the U.S. negotiating position in free trade negotiations. The USTR denied the document, which it said was classified, on grounds that the parties to the negotiation had agreed that their records would not be disclosed prior to the end of 2013.
The USTR contended that release of the document would engender a loss of confidence among U.S. negotiating partners and weaken the position of the U.S. in future negotiations. It was classified “Confidential” because its disclosure could reasonably be expected to cause harm to U.S. foreign relations, USTR said.
But Judge Roberts rejected this line of argument, particularly since the document in question was a U.S. Government record, not foreign government information that had been provided in confidence.
“There is… a meaningful difference between the United States’ disclosure of information that it receives in confidence from a foreign government, with the foreign government’s understanding that the information will be kept secret, and the United States’ disclosure of a document that it itself created and provided to others,” he wrote.
“USTR… fails to provide a plausible or logical explanation of why disclosure of Document 1 reasonably could be expected to damage United States’ foreign relations,” Judge Roberts concluded. Therefore, he ruled that it could not be withheld.
In the context of FOIA litigation, this is an extraordinary opinion.
Ordinarily, courts defer to executive branch agencies on questions of national security classification. It’s true that FOIA requires that information must be “properly” classified in order to be exempt from disclosure. But the term “properly” has usually been interpreted to mean procedurally proper, not substantively proper. In other words, courts ask if the classifier was authorized to classify and if other classification rules were correctly followed. But unlike Judge Roberts, they do not normally ask whether the classification decision makes any sense.
Once the question of the merit of the document’s classification was permitted, the USTR postion could not be sustained.
Interestingly, the court did not specifically say that the document must be declassified. Classification policy is not the court’s concern, particularly since it is not based in statute. Rather, Judge Roberts simply ordered that the government must provide a copy of the document to the requester — whether it is classified or not.
The ruling is a rebuke not only to the USTR, which classified the document, but also to the Department of Justice, which chose to defend the case in court. According to 2009 FOIA Guidelines issued by Attorney General Holder, the Department of Justice is only supposed to defend agency FOIA denials when disclosure would cause reasonably foreseeable harm or is prohibited by law. In practice, however, there is no known case in which those Guidelines have led the Department to decline to defend a FOIA denial.
The new decision was first reported by Josh Gerstein of Politico in “Judge issues rare order to disclose classified document,” February 29.
Federal courts could do far more to curb unwarranted secrecy than they usually do, argued Meredith Fuchs, then-general counsel of the National Security Archive, in a 2006 law review article. See “Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy,” Administrative Law Review, Winter 2006.