Access to Public Information
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The US District Court of the Southern District of New York held that the US State Department and the Department of Defense could not slow down the release of documents related to the murder of Jamal Khashoggi, a Saudi journalist and columnist for the Washington Post who was killed by Saudi operatives in October 2018. Open Society Justice Initiative sought information from the US government about the murder and those behind it. The government agencies agreed to share the information, but claimed that due to their limited capabilities they could not release the documents hastily. The Court held that considering the public interest in the case and the importance of receiving information in a timely manner, the agencies had to process relevant documents at a heightened pace.
On October 2, 2018, Jamal Khashoggi, a U.S. resident, Saudi national, and a columnist for the Washington Post, was murdered by Saudi operatives in a Saudi consulate in Istanbul, Turkey. At some point, it was report that the US Government may have information about the murder. On December 4, 2018, under the Freedom of Information Act (FOIA), Open Society Justice Initiative (OSJI) requested the State Department and the Department of Defense (DOD) to disclose all records related to the murder of Jamal Khashoggi, including the CIA’s findings and assessment of the murder’s circumstances and those responsible for it. FOIA requests are governed by 5 U.S.C. § 552 and require executive agencies to produce records to the public or explain why the materials should be exempt from production.
On January 9, 2019, OSJI filed a court complaint that it requested expedited processing of its FOIA request but had not received a response. On April 19, 2019, the US District Court for Southern District of New York held an initial conference about the FOIA request. At the time, OSJI still has not received an update on the status of their FOIA request. On April 23, 2019, the Court ordered the DOD and the State Department to provide OSJI with a proposed schedule for processing of the documents. On May 13, 2019, the State Department shared that it identified 63,000 pages related to the FOIA request and proposed a processing rate of 300 pages per month. On May 20, 2019, OSJI countered with a request for 7,500 pages per month. On May 30, the Court ordered the State Department to process 5,000 pages per month.
On June 4, 2019, the parties met for another conference. The DOD expressed concerns over the Court’s proposed processing speed, but did not detail its processing capacity. The Court, recognizing the public importance and time-sensitivity of the Khashoggi FOIA request reiterated its order for a 5,000 pages per month processing. On June 13, 2019, the State Department and the DOD filed a motion for reconsideration.
The State Department argued that it was not practicable within the meaning of FOIA for it to process 5,000 pages per month. Its FOIA department was under resourced and relied on part-time and retired Foreign Service Officers. It processed upwards of 60 FOIA requests at a time and its processing capacity is between 18,000 to 21,900 pages per month. In this case, the State Department created a special team that took up 10 percent of its FOIA resources, and processing pages at the OSJI rate of 7,500 pages would force the State Department to assign 30 percent of its FOIA capacities to this request. The State Department added that it identified more than 288,000 pages and to process them at a rate of 5,000 pages per month would divert more than 10 percent of full time employees for more than four years.
The DOD argued similarly argued that the 5,000 pages-per-month rate would overburden its capacities. It identified 22,637 pages in need of processing and explained it would take it several months to complete. The DOD noted that it did not have software to process the materials and each document had to be reviewed line by line.
First, the Court explained the standard governing motions for reconsideration. It explained that the motion would likely be denied, unless the requesting party offered new evidence, or proved that there was a need to correct a clear error or to prevent manifest injustice.
The Court then laid down the applicable legal standards concerning FOIA requests. It explained that 5 U.S.C. § 552 requires a government agency to determine within 20 days whether to comply with a FOIA request and to notify the person making the request of its decision. In Bloomber L.P. v FDA (S.D.N.Y. 2007), the court held that agencies had to show good faith and due diligence to comply with FOIA requests and to process them as quickly as possible on a first-in, first-out basis. The Court reiterated the importance of processing FOIA requests in a timely fashion, noting that in H.R. Re. No. 93-876 (1974), the US Congress recognized that information is only useful when it is timely, and that excessive delay by a government agency could be tantamount to denial of a request under FOIA. Additionally, in 1996 Congress introduced expedited processing for cases with compelling need, defined as either involving an imminent threat to life or physical safety of a person or when a person primarily engaged in disseminating information about government activities shows urgency to inform the public about a certain government activity.
Furthermore, ACLU v Dep’t of Defense (S.D.N.Y. 2004) established that a court had a duty to balance competing interests between the right to receive information in a timely manner and the governments concerns, which include agency capability and national security clearance process. The Court recalled that “Congress enacted FOIA to illuminate government activities. The law was intended to provide a means of accountability, to allow Americans to know what their government is doing.” [p. 9]
Turning to the facts at hand, the Court complimented the State Department’s efforts in responding to the FOIA request despite its capacity limitations. Nevertheless, the Court held that considering the public interest and time sensitivity of the Khashoggi case, the State Department could not justify a processing speed slower than the 5,000 pages-per-month rate. The Court recalled that Khashoggi’s disappearance was front-page news in December 2018, when OSJI filed the FOIA request, and public interest in the case has not diminished since. Further, a United Nations report, issued by UN Special Rapporteur Agnes Callamard, determined that the Khashoggi killing was committed in violation of international law, and referred to OSJI’s FOIA request, calling on the US Government to produce as much information as possible to hold those responsible accountable. These factors justified the need for the State Department to commit heightened and necessary resources to process the Khashoggi FOIA request.
Additionally, the Court explained that when the 5,000 pages-per-month pace was set, the State Department identified 63,000 pages of relevant materials and this number rose to 288,000 pages. At the pace of 5,000 pages, the State Department will take 5 years to process all of the documents. The State Department agreed to review at 3,000 pages, up from 300 pages, per month, but at that speed it would take eight years to process everything.
The term “practicable” must be read in the context of FOIA’s aims to provide timely information on government activities to the public. The rate of 5,000 pages per month properly balances State Department complaints against FOIA aims. The Court thus denied the State Department request for reconsideration.
The Court then turned tor reviewing arguments proposed by the Department of Defense. Initially, the DOD did not offer information its capacities beyond stating that it was a busy agency with competing demands. Eventually, the DOD provided the relevant information, but failed to show “good cause” or manifest injustice sufficient to modify the 5,000 page pace order. Just as the State Department, the DOD argued that it had limited resources. The DOD also did not possess e-discovery software, meaning that each document had to be reviewed line by line. Thus, the order to process documents at the 5,000 page rate forced it to dedicate a quarter of its Office of Information Counsel staff to the task.
The Court noted its sensitivity to the DOD’s other important FOIA requests. However, the Court was unimpressed by the DOD’s “seemingly antiquated review capacities,” stating that the DOD’s decision to “deny itself the technologic capacity to speed its review cannot dictate the Court’s assessment of the review pace that is ‘practicable’ under FOIA.” The Court explained that the speed with which FOIA requests should be processed must be determined on a reasonable agency’s technological capability. Thus, the Court concluded that the 5,000 pages-per-month processing rate remained practicable for the DOD, even if it called upon the DOD to “augment, temporarily or permanently, its review resources, human and/or technological.” [p. 13]
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The Court reiterated that the authorities have a duty to not simply provide access to information in the public interest, but must do it in a timely manner, stressing that delaying access to information is equitable to denial. Additionally, the Court stressed the public interest in the information in question as it relates to Jamal Khashoggi, a slain Saudi journalist. To make its point, the Court went as far as citing the investigative report into the murder written by Agnes Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The judgment reinforces the internationally accepted notion that the murder of a person for the expression of their opinion cannot be tolerated in any circumstance. As the Inter-American Commission for Human Rights indicated, “violence against journalists or media workers due to the exercise of their profession not only affects the ability to listen to these voices, but it violates the right of the whole society to seek and receive all kinds of information and ideas freely and peacefully.” By ordering the authorities to produce documents related to the murder of Jamal Khashoggi, the Court helped protect freedom of expression.
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