I don't rant much on this blog, but I really find this story troubling.
The Washington Post today reported that the Bush Administration is planning to classify much of the 2300 pages of documents responsive to the Electronic Frontier Foundation's request to the Department of Homeland Security for material concerning negotiations between the US and the EU on sharing airline passenger information.
The request was made in the fall of 2006 and after a lawsuit was filed in the Spring of this year, Judge Ellen Segal Huvelle told DHS to finish processing by November 1, 2007. However, the government has now said they need more time because they need to classify a large number of the documents.
This response by the government raises a number of interesting questions to FOIA watchers. First, why in the world weren't these documents, if they are truly classifiable, classified when they were created (as they should have been).
The answer to this question is that they probably aren't really classified, but under a very broad and liberal Executive Order and case law that gives the government a great deal of leeway, government attorneys huddling in conferences (and they do huddle, I've been to some of these conferences in the past--no one really disagrees with what the head Bushies want to do) came up with this plan when they realized other exemptions won't work to protect the information.
The most likely exemption would be FOIA exemption 5. I'm sure the government would love to say this information is protected by the deliberative process privilege. However, any documents traded in a negotiation with the EU or other sovereign nation would likely fail the inter/intra government part of exemption 5. Thus, it's much easier to say they are classified and release would harm our relationships with other nations. So, the fight will be over exemption 1.
I'm hoping that not only does the EFF fight the classification on substantive grounds, but also the very important procedural grounds of the Executive Order allowing for classification. What I mean is that they need to make sure the government verifies that the individual's classifying the information actually have the authority to make those decisions.