Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
In Progress Contracts Expression
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The US Court of Appeals for the District of Columbia Circuit remanded a case back to the lower court to determine whether a document related to the investigation into Russian involvement in the 2016 US presidential election should be released to a media house. The media house had filed a freedom of information request for access to memos written by the former director of the Federal Bureau of Investigations which was refused on the grounds that the documents would interfere with ongoing law enforcement proceedings. During the motion for summary judgment proceedings, the court of first instance ordered that the unredacted version of the document be disclosed to the media and the public. The Court of Appeals held that the lower court had incorrectly applied the factors to be considered in determining whether disclosure should be ordered, and so remanded the matter back for reconsideration.
In May 2017, following US President Trump’s dismissal of the director of the Federal Bureau of Investigations (FBI), James Comey, the New York Times published an article reporting that Comey had written memos detailing his conversations with the President Trump after their meetings. After the publication of the article, multiple news outlets (including CNN) sought to gain access to these notes—which colloquially came to be known as “the Comey Memos.” The FBI refused to disclose the memos, and CNN (and other news outlets) sued the FBI under the Freedom of Information Act (FOIA) for access to the memos.
FOIA provides for certain exemptions and a government agency can refuse to release certain information if an exemption applies. The FBI invoked the exemption in terms of section 552(b)(7)(A) which allows government agencies to withhold “records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information…could reasonably be expected to interfere with enforcement proceedings”. The enforcement proceeding in question, was an investigation into Russia’s interference in the 2016 presidential election conducted by Special Counsel Robert Mueller. Since the investigation was ongoing, and Comey was a witness, the FBI stated that “the release of the information could reasonably be expected to interfere with enforcement proceedings’” [p. 65 CNN v. FBI, 293 F. Supp. 3d 59 (D.D.C. 2018)].
FOIA cases are typically decided on motions for summary judgment and in support of its position, the FBI filed a declaration by Deputy Assistant Director David Archey (the Archey Declaration) who “supervised all FBI employees working on the Russian interference investigation” to explain to the Court how this investigation fell within the FOIA exemption [p. 4]. The declaration was made ex parte [made by one party without the presence of the other] and in camera [in private], and so CNN only had access to a redacted version of this document [p. 4]. This means the Archey Declaration was viewed by the Trial Judge in private (in camera inspection). CNN objected to the ex parte filing of this declaration [p. 3].
The District Court ruled in favor of the FBI, allowing the agency to continue withholding the Comey Memos under the FOIA exemption until the Mueller investigation ended [p.3].
CNN appealed the judgment to the District of Columbia Circuit Court. Before the appeal was decided however, certain members of Congress received unredacted versions of the Comey Memos from the Department of Justice. The memos in turn, were sent to journalists and subsequently published. Since the documents had been released to the public and no longer posed a threat of hindering any ongoing investigations, the FOIA exemption used by the FBI in support of its argument no longer applied. Therefore, the Court remanded the case back to the District Court for reconsideration “in light of subsequent statements by government officials that release of the memoranda would no longer adversely impact any ongoing investigation” [p. 3].
Once the case was remanded back to the District Court the parties once again moved for summary judgment. CNN sought the disclosure of the entire Archey Declaration and the FBI did eventually release a redacted version of the Archey Declaration to the public [p. 4.]. The main disputes were whether the 24 redactions to the Comey Memos and a handful of redactions to the Archey Declaration were permissible. Before the matter was concluded, Mueller completed his investigation, and in 2019, released the Mueller Report to the public. The District Court held that “FBI properly redacted the Comey Memos to protect intelligence sources and methods, but CNN had a common-law right to access the forty-or-so words still redacted from the Archey Declaration” [p. 4].
The FBI appealed the decision to order that it disclose the entire Archey Declaration to the Court of Appeals.
Columbia Circuit Judges Garland, Millet, and Walker delivered the opinion of the Court of Appeals. The central issues for the Court’s determination were whether the District Court had applied the correct legal standards when ruling that the Archey Declaration was a judicial record and when exercising its discretion when it ordered the unsealing of the Archey Declaration, and so whether the District Court was correct ordering the FBI to disclose the entire Archey Declaration.
The Court examined whether the Archey Declaration was a judicial record as there is a “strong presumption” in favor of disclosing such a record and concluded that the declaration did constitute a judicial record [p. 6]. It noted that the FBI’s goal in filing the Archey Declaration to the Court was to demonstrate “the national security interests at stake in the case” and so the FBI’s intention was clearly “to influence a judicial decision” [p. 5]. With reference to MetLife Inc v. Financial Stability Oversight Council 865 F.3d 661 (D.C. Cir. 2017), the Court emphasized that “[a]ccessing judicial records is ‘fundamental’ to ‘the rule of law’ and ‘important to maintaining the integrity and legitimacy of an independent Judicial Branch’” but also stressed that the right is not absolute and so “competing interests” may outweigh that presumption in favor of disclosure [p. 6].
The right to access judicial records versus the nondisclosure of certain records to protect national security leads to a balancing test by the courts where these competing interests are weighed against one another. In doing so, courts apply the Hubbard factors, as set out in U.S. v. Hubbard 650 F.2d 293. The Court examined the District Court’s application of the Hubbard factors in determining whether the Archey Declaration should be disclosed: the Court did not rule on whether the Archey Declaration should remain redacted or unredacted, but instead focused on the District Court’s application of the Hubbard factors. The Hubbard factors require a court to assess “(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.” [p. 7].
In assessing the first and second factors – the need for public access and the extent of previous access – the Court recognized that the District Court held that these factors favored CNN: that Court had acknowledged that while it saw “little public value in the specific information that remains redacted,” there was an overarching need for public access to the documents as a whole due to the level of public interest in the Comey Memos as a whole; and that “most of the document had already been released” [p. 7]. The Circuit Court disagreed with how the District Court applied both these factors, primarily based on the elements of the documents the District Court analyzed. Regarding the first factor, the Court stated that the proper inquiry was whether the public had previous access to the part of the document that was left redacted by the FBI—not whether the public had access to the Comey Memos as a whole. Similarly, in applying the second factor, the proper inquiry was whether the public had previous access to the remaining information redacted from the Archey Declaration—not whether it had access “to the information available in the overall lawsuit” or whether “the government [had] previously disclosed other information from that same document.” [p. 8].
In respect of the third factor – whether someone had objected to disclosure and that person’s identity – the District Court had stated that the FBI’s objection to the full disclosure of the memos, albeit important, “does not have the same strength as a third-party objection” [p. 9]. The Circuit Court disagreed, noting that “[i]n the national security context, the FBI is no ordinary agency” [p. 9]. It added that although there was no third-party objection to disclosure here, the third parties with the most acute interest in keeping the Archey Declaration redacted were the intelligence sources whose very lives may depend on those redactions: if these sources were to object to disclosure publicly, they would have to identify themselves (as required by the third factor), therefore “risking the very harm they seek to avoid” [p. 9].
The Court described the key question to ask in respect of the fourth factor – the strength of property and privacy interests involved – as “whether secrecy plays an outsized role in the specific context” [p. 9]. The Court commented that the National Security Act reflects that Congress is “well aware of the importance of secrecy in the intelligence field,” and that the District Court should have taken into consideration whether there was even the slightest chance that ordering disclosure of a source’s identity could impair intelligence gathering [p. 10]. With reference to CIA v. Sims 471 U.S. 159 (1985), the Court stressed that to “guard their anonymity and to incentivize future sources to cooperate” the FBI has a “very broad authority to protect all sources of intelligence information from disclosure” [p. 9]. The Court referred to the 1940s era “Loose lips sink ships” phrase in emphasizing the importance of secrecy in national security contexts and intelligence operations.
Similarly, in applying the fifth factor – the possibility of prejudice – the Court noted that a district court should “consider the dire consequences that may occur if an agency discloses its intelligence sources and methods” [p. 9]. Since the District Court did not consider either of these elements, the Court disagreed with their application of both the fourth and fifth Hubbard factors.
The Court noted that although the Hubbard case had described the sixth factor – the purpose for which the document was introduced – as the most important factor in that case, “given the national security context of the sealed information” in the present case this factor “doesn’t outweigh other factors” [p. 10-11]. The Court recognized that when a sealed document does not affect the judicial decision “it can be the ‘most important’ element cutting against disclosure” [p. 11]. However, the Court also stressed that this factor can produce a multi-factored analysis as the reverse could also be true: if a sealed document was considered to be a part of the judicial decision making process, the factor can be very influential. [p.10]. In the present case, the Court noted that the sixth factor cut both ways as the Archey Declaration was submitted to influence a judicial decision (which it did as the District Court used it in denying access) – which points to full disclosure – but the fact that the Archey Declaration was submitted in camera cuts against disclosure since the very purpose of filing in camera is so the government can keep the information secret.
Accordingly, the Court remanded the case to the district court to reapply the Hubbard factors “in light of the relevant facts and circumstances of [this] particular case” [p. 11].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Circuit Court’s decision in this case does not mean that the document in question should remain redacted, their interpretation of the factors to be considered could likely favor government agencies and nondisclosure (at least where matters of national security are at play) in future determinations. Given the competing interests between the public’s right to government transparency and disclosure of records and the government’s unwillingness to disclose records in the name of national security, and the historic lack of guidance given to District Courts by Circuit Courts on how to apply the factors to be considered, this decision’s explicit focus on secrecy’s important role in national security and intelligence may well influence courts to refuse disclosure in the future.
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