Sunday, December 2, 2012


From Secrecy News
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 118
November 28, 2012


Executive branch decisions to classify national security information are subject to judicial review in Freedom of Information Act cases, government attorneys acknowledged in a brief filed yesterday.

That potentially explosive question arose following an extraordinary ruling by a federal judge ordering the U.S. Trade Representative to release a one-page classified document that had been requested under the FOIA by the Center for International Environmental Law.  The document's classification was not "logical," said DC District Judge Richard W. Roberts last March, and therefore it was not exempt from public disclosure.

The government appealed that ruling in September, but stopped short of asserting that the court had no authority to order release of the classified document.

Yesterday, in response to arguments presented in an amicus brief from media organizations, government attorneys made their acceptance of judicial review explicit in a final reply brief.

"We agree that district courts (and courts of appeals) play an important role in evaluating the government's compliance with its obligations under FOIA, in Exemption 1 cases [involving national security classification] as well as others...."

"We have not sought to diminish the role of courts in FOIA Exemption 1 cases, nor have we suggested that the Executive's determination that a document is classified should be conclusive or unreviewable," attorneys wrote in the November 27 brief (at p. 8).

In other words, the government did not assert that the executive has some kind of transcendent Article II classification power, nor did government attorneys contend (à la Egyptian President Morsy) that the judicial review provisions of FOIA are an unconstitutional infringement on executive authority.

This was the crucial information policy question that was raised by the move to appeal Judge Roberts' highly unusual disclosure order, and the government has more or less resolved it by submitting to the discipline of judicial review.

What remains is a bona fide dispute:  Was the decision to classify the USTR document well-founded and plausible, as the government insists, and therefore entitled to judicial deference?  Or was it illogical, as the lower court ruled, nullifying the document's exemption from FOIA?

Oral arguments in the case are scheduled for February of next year.

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