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SCOTUS Hears First FOIA Case Since 2011, 9th Circuit Says Contractor Docs Not Protected by Exemption 5, and More: FRINFORMSUM 4/25/2019

April 25, 2019

Exemption 4 Scope Awaits SCOTUS Ruling

On Monday the Supreme Court heard oral arguments in the case of Food Marketing Institute v. Argus Leader Media. The case, which is the first the justices have heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP) and has potentially wide implications for FOIA’s Exemption 4. The Department of Agriculture was the original defendant, but FMI intervened when the government withdrew – although the government presented an amicus brief in this case. The justices appeared split along party lines, with Democratic-appointed justices more inclined to see the merits of the Argus Leader arguments. Justice Sotomayor had particularly strong questions for the FMI attorney and the government, and “accused the Justice Department of declining to appeal an earlier court ruling requiring disclosure of the data, then attempting ‘an end run’ by ‘piggybacking’ on the food retailers’ petition to the high court.”

For FOIA requesters, perhaps the most unnerving part of the arguments came from Justice Department attorney Anthony Yang, whose opening statement flies in the face of current Justice Department guidance.  Yang said, “The government will not release the disputed records from 2005 to 2010 if a FOIA exemption applies. So long as the government is not judicially compelled to do so, it will not do so.” This is a jarring departure from the still-on-the-books March 19, 2009 AG Holder memo on FOIA which explicitly states “an agency should not withhold information simply because it may do so legally.”

It’s worth noting the case was filed before the FOIA Improvement Act of 2016, which added a foreseeable harm standard that raised the bar for withholding information. If the justices rule in favor of the plaintiff and adopt a broader definition of the exemption, MuckRock suggests that more litigators in the future may turn to enforcing the foreseeable harm standard.

The justices last heard a FOIA case in 2011, Milner v. Department of the Navy, and then “issued a pro-disclosure ruling, voting 8-1 to reject a longstanding interpretation that allowed use of that exemption to cover records whose disclosure could frustrate an agency’s operations.”

9th Circuit Says Contractor Docs Not Protected by Exemption 5

The 9th circuit this week issued a split decision on a case addressing the role of consultant and contractor’s work in regards to FOIA and, importantly, rejected the “consultant corollary” for FOIA Exemption 5, which suggests consultant-created documents fall under the exemption’s discretionary protection of inter and intra-agency communications. The panel ruled that records created by contractors can’t be withheld under Exemption 5 because they aren’t “intra-agency” communications – an important ruling considering the increasing amount of work done by government contractors.

439-Page NCIS Report Leads to Court-Martial of Decorated SEAL Platoon Chief for War Crimes in Iraq

A 439-page Navy Criminal Investigation Report obtained by The New York Times details how Navy SEAL commandos from Team 7’s Alpha Platoon met with their troop commander to formally complain about their platoon chief’s murderous behavior in Iraq – behavior that included “Stabbing a defenseless teenage captive to death. Picking off a school-age girl and an old man from a sniper’s roost. Indiscriminately spraying neighborhoods with rockets and machine-gun fire.” The SEALs asked for a formal investigation, but instead “of launching an investigation that day, the troop commander and his senior enlisted aide — both longtime comrades of the accused platoon leader, Special Operations Chief Edward Gallagher — warned the seven platoon members that speaking out could cost them and others their careers, according to the report.”

The SEALs were finally able to refer the matter to outside authorities and Gallagher was arrested in September on more than a dozen charges; his court-martial trial begins May 28.

A January order from SEAL commander Rear Adm. Collin Green mandated a 90-day review of the SEAL’s culture, but has yet to be made public.

The Navy Times has more background on this story here.

Reading Barr’s Redactions on Mueller’s Report: Justice Department censored CNN headline, New York Post quotation, and more

The Justice Department redactions to the Mueller Report are on their face overdone, according to an analysis by the National Security Archive that was able to uncover what was beneath some of the unnecessary redactions. (The Washington Post counts that some 176 of the 448 pages feature at least one redaction, and 10 pages are blacked out in full.)

The censors working for Attorney General William Barr even blacked out people’s names that appear in published news accounts or in public quotations.  For example, on Volume 2, page 128, there’s a black blotch and the code “HOM” [claiming Harm to Ongoing Matter] over a name that President Trump told the New York Post in a direct quote during a November 2018 interview, a quote the Post subsequently published.  The name is Roger Stone, the currently indicted former partner of convicted felon and Trump campaign manager Paul Manafort. A blotch labeled HOM also covers the first few words of an actual news story title listed in the footnotes on that page – a title you can look up on CNN, “Roger Stone associate says he won’t agree to plea deal.”

These unwarranted deletions are black marks on Barr’s record and on the credibility of the Justice Department.  The idea that leaving in any mention of Stone would somehow do harm to the ongoing prosecution cannot be true, given the amount of information the government has already had to file in court to indict Stone, not to mention the vigorous counter arguments made by a vociferous Stone and his defense team.

The Stone censorship also proves that – of all four of the censorship categories claimed by Barr – HOM is the most subjective.  HOM black outs make up the bulk of the Barr redactions, 427 of them, compared to 358 cuts for “Grand Jury” materials, 94 for “Investigative Techniques,” and 74 for “Personal Privacy.”

Read the whole analysis here.

Cyber Brief: Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations

The Archive’s latest Cyber Brief examines the Tallinn Manual 2.0, the second edition of NATO’s Cooperative Cyber Defence Centre of Excellence’s analysis on the application of international law to cyberspace. The analysis rests on the idea that cyber operations do not occur in a legal vacuum, and preexisting obligations under international law apply equally to the cyber domain. As such, the Tallinn Manual 2.0 is broken into four parts with twenty chapters total, each examining a different area of existing international law. The first section deals with general legal principles, while the latter three sections address specific specialized legal regimes. Consistent with its premise, the Tallinn Manual 2.0 cites over a century’s worth of treaties and case law, extending the premises of international law principles and regimes to their applications in cyberspace. Presented below is a list of the cases and treaties cited by the Tallinn Manual 2.0, listed in order of appearance by chapter, which serves as both a reference guide for the manual itself, as well as to illustrate the diversity of law which governs cyber activities.

TBT Pick: Why is “Poodle Blanket” Classified?

This week’s #TBT pick comes from the Archive’s file of “Dubious Secrets” and highlights the Pentagon’s ridiculous 2010 decision to deny a FOIA request for documents on “Poodle Blanket” contingency plans from 1961 for a possible confrontation over West Berlin (no longer divided) with the Soviet Union (no longer a country) on the basis that its release could damage current U.S. national security. The denial was made more ridiculous by the fact that in the early 1990s, the State Department’s historical series, Foreign Relations of the United States, published a number of documents on “Poodle Blanket” — including the highest-level National Security Action Memorandum 109. Read more here.

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