Shh!: EFF Wins FOIA Motion in FISC Case

 (Photo credit: Wikipedia)

The old does-a-tree-falling-in-the-woods-make-a-sound? conundrum has got nothing on the nonprofit online free speech advocate Electronic Frontier Foundation (EFF), which crowed in a press release that it had successfully argued a motion in a Freedom of Information Act (FOIA) action in the super-secret Foreign Intelligence Surveillance Court (FISC) regarding National Security Agency (NSA) surveillance.

What isn't so clear in this hush-hush alphabet soup that purportedly involves the first disclosed victory by a non-government party before the FISC is what exactly EFF has won. It's not easy to brag about the mouthful of the court's decision in In re Motion for Consent to Disclosure of Court Records or in the Alternative a Determination of the Court's Rules on Statutory Access Rights (Docket No. Misc. 13-01).

According to the EFF announcement, FISC said it was ok to disclose publicly a previous FISC opinion that purportedly said facets of NSA snooping under Sec. 702 of the FISA Amendments Act were unconstitutional. The victory, while not Pyrrhic, isn't exactly gratifying either, because FISC didn't actually order the opinion itself to see the light of day. Rather, the court merely ruled that FISC rules in and of themselves do not interfere with the disclosure of an opinion.  In other words, according to the EFF, FISC soundly rejected the argument by the Department of Justice (DOJ, if you can stand another acronym) that the Executive Branch's hands are tied by FISC procedural rules when it comes to releasing an opinion.

The court's ruling, along with a motion by the American Civil Liberties Union (ACLU) asking FISC to open the court's interpretation of Section 215 to public view, may be found on the public docket recently created by the FISC.

Given the PRISM and NSA phone call monitoring stories currently dominating the news cycle, you might want to think twice before sharing EFF's giddy celebratory news with your posse online or via cellphone.

Judge Says University Must Keep (Pink) Slimy Secrets to Itself

 (Photo credit: Wikipedia)

Story County (Iowa) District Court Judge Dale Ruigh last week ruled in Beef Products Inc. et al. v. Iowa State University of Science & Technology (Case No. EQCV045745) that the college may not release research data concerning the controversial beef filler dubbed "pink slime" under the state's Open Records Act [Iowa Code Chapter 22] because the meat packaging company's processing practices constitute trade secrets.

In his nine-page decision, Judge Ruigh relied on the trade secret exemption to Iowa's Freedom of Information Act to prohibit the university from producing documents requested both by The New York Times and a Seattle attorney who four years ago sought to obtain a 2002 ISU study of BPI's meat production practices to support a lawsuit involving allegedly contaminated hamburgers. The university was prepared to comply with the records request when BPI filed suit to prevent disclosure.

Under Sec. 22.1(3)(a) of the Iowa Open Records law, a public record "includes all records,documents, tape or other information, stored or preserved in any medium, of or belonging to this state, or any county, city, township, school corporation, public subdivision...or any branch department board, bureau. commission, council, or committee of any of the foregoing." The Court concluded that any knowledgeable person employed by a BPI competitor could review the targeted information and thereby acquire confidential data about the company's food processing methods and any new methods in development to BPI's detriment.

The controversy arose before BPI filed its $1.2 billion defamation suit against ABC News in September 2012, over a news story the plaintiff claimed portrayed "pink slime," a lean finely textured beef filler product made from ammonia-sprayed fatty trimmings, as harmful to the public that was not meat (See "TUOL" post 1/21/13).

Tip of the hat to the Reporters Committee for Freedom of the Press (www.rcfp.org) for tracking the case.

D.C. Circ. Court to Decide if White House is Log Cabin

 (Photo credit: tychay)

It's all so simple in the Star Trek future world in which James T. Kirk disclosed the contents of his Captain's log at the outset of each episode.

In contrast, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit last week heard arguments in Judicial Watch, Inc. v. U.S. Secret Service (Case No. 1:12-cv-01562) in which the appeals court must decide whether to uphold a ruling last summer by United States District Court for the District of Columbia Judge Beryl A. Howell that granted the plaintiff conservative watchdog group access to White House visitor logs pursuant to its request under the Freedom of Information Act ("FOIA") [5 U.S.C. sec. 552] (see "TUOL" post 8/18/11).

According to accounts on the respective Web sites of The National Law Journal and Reporters Committee for Freedom of the Press, the appellate court panel on Sept. 18 heard Department of Justice attorneys claim that the logs being sought were not Secret Service agency records created by the president's protectors subject to production under the FOIA, but rather, were records of the Office of the President, which are exempt under the Act.  DOJ attorneys also voiced concerns that the records contained confidential information, some of which had national security implications. For example, the Secret Service vets all visitors, so the records contain  background personal information, including visitors' Social Security Numbers and birthdates, and the records flag sensitive data, such as visits from prospective U.S. Supreme Court nominees.

Judge Howell, himself an appointee of President Barack Obama, agreed with Judicial Watch that the logs were under the Secret Service's control and subject to FOIA production and that it would be overreaching by the government to withhold all the data requested. Trying to allay the justices' concerns, the plaintiff's lawyers argued before the appellate panel that exemptions within the FOIA could shield sensitive material contained in the logs.

Media groups, including Bloomberg, Inc., National Public Radio and The Washington Post, as well as the Reporters Committee for Freedom of the Press, submitted amicus briefs backing Judicial Watch.  The watchdog group began its quest for the logs in 2009. The White House Web site (www.whitehouse.gov) has disclosed the names of roughly 2.5 million White House visitors since September 2009, in response to a voluntary initiative by the Obama Administration, but critics cite the one-and-a-half to two-month delay in the release of the data and the White House selective withholding of names it doesn't want published.

A Break In Watergate Documents Release?

(Photo credit: Wikipedia)Then-White House Press Secretary Ron Ziegler dismissed it as a "third-rate burglary attempt." Forty years later, the Justice Department, a federal judge and a Texas academic are central figures in a document tussle that is bound further to illuminate the Watergate break-in and ensuing scandal that toppled the presidency of Richard Nixon.

As reported by the Associated Press, Luke Nichter, a history professor at Texas A&M University-Central Texas who oversees a Website of cataloged covert Oval Office recordings made by President Nixon, submitted a Freedom of Information Act request [5 U.S.C. sec. 552 et seq.] to the Justice Department, which last week responded that it would not object to the release of some Watergate-related documents.

The Justice Dept., however, does oppose materials that disclose personal information, grand jury data and documents concerning content derived from illegal wiretaps. Prof. Nichter, according to the AP article, specifically wants documents related to hearings involving testimony by former FBI agent Alfred Baldwin III, who listened to and transcribed conversations from a Democratic National Committee telephone that the seven Watergate burglars wiretapped on May 28, 1972, roughly three weeks before their arrest.

United States District Court for the District of Columbia Chief Judge Royce Lamberth will decide to which documents Prof. Nichter will have access. Last year, Judge Lamberth ruled the public should have access to a 297-page transcript of President Nixon's grand jury testimony.

CIA Bay of Pigs History Volume Remains Under Wraps

Map of Cuba, showing the Bay of Pigs (Photo credit: Wikipedia)United States District Court for the District of Columbia Judge Gladys Kessler last week ruled against a research institute's Freedom of Information Act ("FOIA")[5 U.S.C. sec. 552] request to gain access to Volume 5 of the CIA's exhaustive history of the failed Bay of Pigs invasion of Cuba in 1961.

The National Security Archive, a 27-year-old nongovernmental research institute and library, filed a 6-page Complaint for Injunctive Relief, National Security Archive v. Central Intelligence Agency (Case No. 1:06-cv-01080-GK) to get a peak at Vol. 5, the CIA's Internal Investigation Report, a purported rebuttal by CIA chief historian Jack Pfeiffer against a critical report by the CIA's inspector general that blamed the agency for the unsuccessful April 1961 Bay of Pigs operations.

The CIA successfully withheld the requested data pursuant to Exemption 5 of the FOIA, which is invoked to exclude "A privileged inter-agency or intra-agency memorandum or letter." More specifically, the so-called deliberative process privilege is intended to "prevent injury to the quality of agency decisions," by encouraging candid discussions of policy matters between superiors and subordinates and protecting against premature disclosure of proposed, but not yet adopted, policies.

Judge Kessler agreed with lawyers for the CIA who argued the release of Vol. 5 to the NSA could yield inaccurate historical information that could lead to self-censorship by CIA historians. Judge Kessler concurred that the material sought was a draft, not a completed work, from a subordinate that Pfeiffer allegedly rejected.

UPDATE: bin Laden Death Photos FOIA-Exempt

(Image credit: Getty Images via @daylife)

In a 29-page Memorandum of Decision in Judicial Watch, Inc. v. U.S. Department of Defense et al. (Docket No. 11-890-JEB), U.S. District Court for the District of Columbia Judge James Boasberg yesterday granted the government's summary judgment motion barring the public release of video and images of the shooting and burial of Osama bin Laden.

The plaintiff sued the government last May 2, the day after President Obama announced the killing of the al-Qaeda leader, for the release of images associated with his death under the Freedom of Information Act [5 U.S.C. sec. 552] (see "TUOL" post 1/30/12). As reported by Legal Times (www.Legaltimes.typepad.com), the CIA withheld 52 documents in response to the FOIA request, arguing release of the volatile classified bin Laden records posed a national security risk.

Judge Boasberg ruled "the CIA's explanation of the threat to our national security that the release of these records could cause passes muster." Judicial Watch has filed a notice of appeal to the United States District Court of Appeals for the D.C. Circuit.

LePage Wants His Pages Exempt from Public View

Image via WikipediaMaine Gov. Paul LePage wants the same exemption enjoyed by the Maine Legislature from the state's Freedom of Access Act ("FOAA")[1 M.R.S.A. sec 401 et seq.] when it comes to public access to his "working papers," according to a story on the Web site of  the Maine Public Broadcasting Network (www.mpbn.net).

Gov. LePage's office claims Maine lawmakers have an unfair advantage because their notes and documents are not covered by the Act, whereas the public may request such information from the governor about his administration's plans. LePage's office insists any information blackout under his proposal would be temporary as the exemption would dissolve once a bill derived from his "working papers" would be introduced.

The managing editor of The Lewiston Sun Journal, a member of Maine's Right to Know Advisory Committee, voiced concern that LePage's proposed measure would also shield his staff from FOAA. The editor feared that extending the exemption to the governor's office could create a groundswell among other Maine public officials seeking the same protection. 

As it is, the FOAA offers more than 300 exceptions to the Act's definition of a "public record."  What may appear to be arrogance (because it is) on the Maine Legislature's part for exempting itself from the open government legislation is not unusual.  Congress, for example, decided not to subject itself to the provisions of the federal Freedom of Information Act [5 U.S.C. sec. 552 et seq.].

In case Gov. LePage's proposed measure has yet to be named, "TUOL" recommends a Downeaster title: The 'Ya Kant Seeit Frum Heeuh' Bill.

Legal Advocacy Group Files FOIA Claim on Honduras Coup

Image via WikipediaThe Jurist Website (http://jurist.law.pitt.edu) reports today that the Center for Constitutional Rights (CCR), a nonprofit legal and educational organization advocating for human rights under the U.S. Constitution and Universal Declaration of Human Rights, has filed a complaint under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.] against the CIA and Department of Defense to obtain documents involving the 2009 coup in Honduras in which then-President Manual Zelaya was abducted by Honduran military officers and flown out of the country to Costa Rica.

The FOIA complaint alleges that the named defendants withheld documents from the CCR concerning the coup's impact on the U.S. and its interests. The CCR has filed additional FOIA requests with the CIA and DOD on behalf of the Honduras Commission for Truth, which is probing coup-related human rights violations. Former President Zelaya and officials involved in his ouster all received immunity from Zelaya's successor.

"TUOL" expects that the mainstream news media will pick up on this story if Charlie Sheen adds Tegucigalpa as a stop in his Violent Torpedo of Death/Defeat Is Not an Option Tour.

Media & Advocacy Groups Sue for Access to Wisc. Guv's Emails

Image by Getty Images via @daylifeThe Courthouse News Service today reported that Associated Press, Isthmus Publishing Co., and citizens' advocacy group, One Wisconsin Now, have sued under the Badger State's Open Records Act [Wisc. Stat. Secs. 19.31-19.39] for access to embattled GOP Gov. Scott Walker's Emails, which he claims largely back his Budget Repair Bill ("BRB") that derailed public employees' collective bargaining rights and other union benefits.

The nonprofit One Wisconsin Now alleges that Gov. Walker's office informed it that a fee of $31,000 would be assessed to reproduce the 8,000-plus BRB-related Emails Gov. Walker claims to have received. A hearing is slated for March 21 in Dane County Superior Court on the records request by AP and Isthmus, which publishes a weekly newspaper and operates thedailypage.com Web site. 

Pursuant to Wisc. Stat. Sec. 19.35(1)(a), subject to certain exemptions, "any requester has a right to inspect any (public) record."

UPDATE: Supreme Court Rejects Navy's FOIA Exemption Claim in Milner

Image via WikipediaThe U.S. Supreme Court, in an 8-1 ruling, has overturned the Appeals Court decision in Milner v. Department of the Navy (Case No. 09-1163) that supported the Navy's invocation of Exemption 2 of the Freedom of Information Act [5 U.S.C. sec. 552] to avoid turning over data and maps to Puget Sound resident Glen Milner concerning a Port Townsend (Wash.) ammunition dump. The Navy argued that producing the material would endanger the security both of the munitions site and the neighboring community (See "TUOL" post 12/3/10.)

Justice Elena Kagan wrote the opinion that said the Navy wrongly relied on 5 U.S.C. sec. 552(b)(2), which shields from compelled disclosure under FOIA documents "related solely to the internal personnel rules and practices of an agency," to withhold the maps that depicted the anticipated damages an explosion at the ammo dump might cause. The maps at issue are unrelated to employee relations and human resources issues that Exemption 2 were designed to protect, Justice Kagan wrote.  Justice Breyer dissented.

NY Times: Mayor Bloomberg Hosts Own 'Celebrity Apprentice'

Image via Wikipedia

More than 450 applicants vied this year for the prestigious 152 internships available in New York Mayor Michael R. Bloomberg's City Hall.  Thanks to The New York Times, readers know the selection processwas above-board, with the scion of any captain of industry, media mogul, high-ranking politician or celebrity having as good a chance to land one of the plum positions as any other child of the connected.

A sluggish three months after The New York Times requested a list of the interns under New York's Freedom of Information Law [Pub. Off. Law Sec. 87 et seq.], which is modeled after the federal Freedom of Information Act [5 U.S.C. sec. 552 et seq.], the Mayor's office produced the list of names, which appears to have been photocopied from the Social Register.

There's 2003 high school intern Alexander Blankfein, son of Goldman Sachs' cuddly chief executive Lloyd C. Blankfein, and Jacob Doctoroff, whose daddy, Daniel L. Doctoroff, is a former deputy mayor and current president of Bloomberg LLP. Jacob was an intern in 2002 as an eighth grader, where he brought a youthful perspective to running the city that never sleeps.

The city's Health & Hospitals Corp. President Alan D. Aviles surely beamed with pride when his daughter Louisa interned in 2007 in the Community Affairs Unit.  Playwright Neil Simon's stepson, and the offspring of CBS Chief Executive Laurence A. Tisch and Blackstone Group co-founder Peter G. Peterson made the list. So too did 2007 intern Luke Russert, son of the late NBC Meet the Press host Tim Russert.

A spokesperson for the Mayor's office, in his best damage-control voice, noted that the progeny of the powerful make up a tiny fraction of the nearly 1,500 internships that have been filled since Mayor Bloomberg took a pay cut to occupy City Hall.  It must be hell for the interns having to decide what to wear at the Gracie Mansion summer bbqs.

UPDATE: 2d Circ. Orders Federal Reserve Turn Over Loan Info to Media

Image by Getty Images via Daylife

In Bloomberg, L.P. v. Board of Governors of the Federal Reserve System (Case No. 09-4083-cv; 09-4097-cv), the U.S. Circuit Court of Appeals for the Second Circuit last Friday rejected the argument by the Federal Reserve Board that it was exempt under exceptions to the Freedom of Information Act from having to turn over records to the news media concerning the $2 trillion emergency lending program.

The appellate court's three-judge panel upheld the decision of Chief Judge Loretta Preska of the U.S. District Court for the Southern District of New York, which ordered the Fed to produce the records to Bloomberg News pursuant to the media outlet's FOIA request [See "TUOL" posting 8/26/09]. The information involves loans made in April and May of 2008 by the Federal Reserve to quell the financial crisis consuming banks.  

The Second Circuit decision said FOIA favors disclosure and found the Federal Reserve had no basis for an exemption under the act. The Court suggested the Fed should look to Congress to amend FOIA if it believes the national interest would be served by such an exemption.

No word on whether the Fed intends to appeal the decision.

Obama Cops Bush Attitude Toward House Guests

MSNBC personalities Chris Matthews, Keith Obermann and Rachel Maddow have taken their share of criticism for allegedly being front-row cheerleaders for President Barack Obama. They may want to move a few rows back based on the Obama Administration's refusal to turn over records requested by MSNBC containing the names of all visitors to the White House since January, thereby continuing the policy pursued by the Bush Administration.

The Secret Service declined to produce the visitors roster requested by MSNBC. The Obama Administration presently is arguing that the lists of visitors are not agency records of the Dept. of Homeland Security, under whose aegis the Secret Service operates, that would be subject to production under the Freedom of Information Act (FOIA) [5 U.S.C. sec. 552], but rather, are FOIA-exempt documents pursuant to the Presidential Records Act [44 U.S.C. sec. 2203].

The Obama Administration has professed to favoring a new era of "transparency" in the conduct of government, but has followed the path of its predecessor on issues such as releasing photos related to Guanatanamo Bay detainees. At Tuesday's White House press briefing, spokesperson Robert Gibbs said the Administration is reviewing its position concerning the visitors list.

Meanwhile,Citizens for Responsibility and Ethics in Washington ("CREW") today filed a complaint for injunctive and declaratory relief in the U.S. District Court for the District of Columbia against the U.S. Dept. of Homeland Security. CREW is seeking the release of any visitors list as to a select group of coal industry executives who have visited the Obama White House. Watchdog groups, such as CREW, frequently make such requests, arguing that such lists reveal whether any individuals or group are exerting excessive influence regarding governmental policy decisions.

In 2007 and again in January 2009, Judge Royce Lamberth of the U.S. District Court for the District of Columbia has ruled in CREW's favor on its requests for visitor logs from the Bush White House in search of leaders of the religious right, holding that the requested documents were covered under the FOIA. The Obama Administration is pressing the Bush Administration's appeal of Judge Lamberth's ruling.

Visitor records concerning the White House are maintained in two databases: "WAVES"(Worker & Visitor Entry System) and "ACES"(Access Control Records System).

FOIA Own Good

The National Archives last week named attorney Miriam Nisbet to be the first federal ombudsman for the Freedom of Information Act [5 U.S.C., sec. 552] ("FOIA").

Created by the Open Government Act of 2007, the ombudsman position is empowered to mediate disputes between those seeking information pursuant to the FOIA and the government agencies receiving the requests. The ombudsman is also charged with evaluating how agencies comply with FOIA requests and recommending changes to the Congress and the president.

Nisbet, 61, most recently served as Director of the Information Society Division at UNESCO, which entailed issues of global access to information and digital libraries. Previously, she was legislative counsel at the American Library Assn. for eight years, and also worked 16 years at the Dept. of Justice as deputy director of the Office of Information & Privacy.

Nisbet, a graduate of the Univ. of North Carolina Law School, hopes to have the National Archives ombudsman office up and running in September 2009.