As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2011 and discussing where we are in the fight for a free expression, innovation, fair use, and privacy.
2011 was an important year for court decisions interpreting the Freedom of Information Act (FOIA). The Supreme Court issued two decisions that promoted government transparency and limited the scope of FOIA exemptions, while two district courts addressed how the government administers FOIA. All of those decisions will help shape FOIA to the benefit of the public.
Milner v. Department of Navy
In Milner (pdf), the Supreme Court severely limited federal agencies’ ability to withhold information “related solely to the internal personnel rules and practices of an agency,” also known as “Exemption 2” of FOIA. Prior to the decision, agencies were permitted to use this exemption to withhold information under what is known as the “High 2” theory. Agencies could argue that if released, the information might risk circumvention of the law or regulation.
In the Milner case, the FOIA requester, Glen Milner, tried to obtain information on the Navy’s storage of explosives in and around his home in Puget Sound, Washington. The Navy denied the request, relying on the “High 2” exemption, and claiming that disclosure of the information would threaten the security of the base and the surrounding community. EFF joined with other transparency advocates to file an amicus brief (pdf) supporting Mr. Milner’s right to the information and arguing that the “High 2” exemption should be abolished.
The Supreme Court agreed with Mr. Milner (and EFF), striking down “High 2” and limiting the scope of the Exemption 2 to “records relating to issues of employee relations and human resources.”
The Milner decision effectively stops the government from withholding any type of meaningful information under Exemption 2—a practice that had increased in the years following 9/11. The decision had a direct effect on one of our FOIA cases when, this Fall, the Department of Defense re-reviewed records it had originally withheld under (b)(2) and released several pages of previously withheld materials that described illegal surveillance activities by DOD employees.
While FOIA still provides the government plenty of loopholes to withhold information from the public, the Milner decision successfully shut down one of them.
FCC v. AT&T
In AT&T (pdf), the Supreme Court held that, under FOIA, corporations don’t have personal privacy interests.
In response to a FOIA request to the FCC, AT&T sued to block the release of information, arguing that release would constitute an “unwarranted invasion of personal privacy” under FOIA Exemption 7(C). Because a corporation is a person under the statute, the company claimed, AT&T could necessarily have a personal privacy interest in the information contained within the FCC records.
Following the Supreme Court’s controversial decision in Citizens United, which held that a corporation had a First Amendment right to engage in political speech, many were anxious that the Court might extend the limits of corporate “personhood” even further. Like in Milner, EFF submitted an amicus brief (pdf) urging the Court to release the withheld information and to hold that, despite a corporation’s status as a legal “person,” it could not have a “personal” privacy interest within the meaning of Exemption 7(C).
Once again, the Supreme Court agreed with EFF. In a unanimous decision, the Court made clear that a corporation did not have cognizable personal privacy interest under FOIA. Chief Justice Roberts closed with a jab at AT&T (and their argument):
We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.
Islamic Shura Council of S. Cal. v. FBI
The Shura Council case involved a FOIA request for information about FBI surveillance of Muslim organizations, communities and citizens in Southern California. As we learned this year from Wired and the ACLU, the FBI has been infiltrating and mapping Muslim communities without any suspicion of criminal activity.
In the Shura Council case, several Muslim citizens and organizations in Southern California submitted a broad joint FOIA request to the FBI seeking records relating to any monitoring, surveillance, observation, questioning, interrogation, investigation or infiltration the FBI might be doing related to them and their communities. After much stalling and then litigation, the FBI told the FOIA requesters and the court that it did not have certain records related to their request. It turns out, this was a lie.
Eventually, the FBI revealed it actually did have records. Amazingly, the Bureau took the position that the FOIA allowed it to mislead the court where it, alone, believes revealing information would “compromise national security.”
The Court vehemently disagreed, holding, “the Government cannot, under any circumstance, affirmatively mislead the Court.” And the court backed this up with the extremely rare decision to issue sanctions against the government, noting that sanctions were necessary to “deter the Government from deceiving the Court again.”
It’s nice to see a district court have the backbone to stand up to the FBI and stand up for FOIA requesters. We hope the government will take this message to heart the next time it considers trying to deceive FOIA requesters.
National Day Laborer Organizing Network v. ICE
The last case to make our FOIA top-four list this year has been important to transparency for many reasons. The FOIA request at issue in the case sought records related to an ICE program called “Secure Communities” that forces state and local law enforcement into enforcing federal immigration law by requiring the agencies to run fingerprints of all individuals arrested (not convicted) through a federal immigration database.
The records released in this case have taught us a lot about the Obama administration’s immigration policies and its underground efforts to remove undocumented people (and sometimes citizens) from the US, even if they have committed no crime. The records have also provided useful insight into the FBI’s biometrics database called Next Generation Identification (NGI), and the behind-the-scenes pressure the FBI has been placing on DHS to feed Secure Communities biometrics information into NGI.
This case has been important for procedural reasons as well. For the first time ever in a federal case, the court issued an order requiring the government comply with standard electronic discovery practices in the FOIA context. Even though e-discovery has been the norm in civil litigation for many years now, the government still refuses to produce records in a format other than either paper hard copies or non-searchable pdf image files, even though the files exist in electronic format and.software is available to search through those records.
Unfortunately, to prevent further delay in the case (the government argued the case couldn’t go forward until it appealed this decision), the court later vacated its order. But with a new generation of lawyers and former magistrates becoming federal judges—most of whom have worked with e-discovery in the civil litigation context—we hope this issue will be resolved in FOIA requesters’ favor in the future.
Requiring the federal government to produce records in their native electronic formats is an important step in ensuring the enduring importance of the FOIA—that the public can easily and quickly review the government’s records to determine what their government is up to.