The FOIA blog

San Bernardino Phone Hack Information Ruled Classified

Politico has this on the FOIA litigation concerning the information on the phone hack the FBI paid for to unlock the iPhone of the San Bernardino shooter.  The Court ruled that the information was properly classified by the FBI -- the government had attempted to also claim that it was confidential business information but the Court said that it didn't merit Exemption 4 protection.

This illustrates just how hard it is for a requester to defeat a claim of Exemption 1 - The government gets a great deal of deference on classified material and if it meets all the procedural and substantive elements necessary to make something properly classified, it is very unlikely for a court to substitute its judgment. 

D.C. Circuit Hears CIA Drone Appeal

The Court of Appeals for the District of Columbia heard the ACLU's appeal on the dismissal of its lawsuit against the CIA on the use of drones to perform target killings.  The CIA has refused to confirm or deny that records on the issue exist and a district court ruled in the CIA's favor.

The Blog of the Legal Times has a full write up of the oral argument.  A decision will likely come down in a few month.

Update:  Here's the Washington Post piece on the oral argument.

Court Finds Government Fails to Establish Classification Claim

Judge Richard W. Roberts of the United States District Court for the District of Columbia has ruled that a one-page document held by the United States Trade Representative is not properly classified as confidential, and should, therefore be released pursuant a FOIA lawsuit brought by the Center for International Environmental Law.

It is very rare that an agency doesn't prevail in FOIA lawsuits that involve classified information.  However, in this case, the court gave the government three opportunities to show why the one page document was properly classified over a five-year period.  Each time, the court found that the government's justifications came up short and after the government's third bite of the apple, the court ordered disclosure.  It is probably important to note that the document was classified "confidential" which is the lowest classification rating (secret and top-secret being the other two).  Further, the document concerned trade negotiations -- while important, they are not the same as weapon systems, terrorism or military activities.  Thus, the impact on the U.S. by the release of the document -- even if it could somehow be construed as properly classified -- isn't going to cause much, if any, harm to the U.S.  Of course, the government now has the opportunity to appeal the decision, so it is likely that there isn't going to be an immediate disclosure of the document.

Josh Gerstein of Politico has much more on this story.

Government Files Reply Brief in Bin Laden Death Photo Litigation

The blog of the Legal Times has the government's reply brief in the Osama Bin Laden death photo's FOIA litigation. 

The government is saying that the records are classified and are properly withheld pursuant to FOIA exemptions 1 and 3.  Judicial Watch, the plaintiff, will file its reply (they cross-moved for summary judgment and get another opportunity to respond) next month.  Once that happens, the district court will issue an opinion.

Update on Bin Laden Death Photos

Josh Gerstein of Politico has an update on the litigation brought against the goverment for the death photos of Osama Bin Laden.  The government is saying that the records are in the possession of the CIA and as the records are a classified intelligence activity, the CIA may withhold the material pursuant to FOIA Exemptions 1 and 3.

I have consistently stated that if the government made this argument it would be difficult for requesters to overcome.  The requesters opposition is due on October 24, 2011.

CIA Drone Attacks Protected Under FOIA

Judge Rosemary Collyer of the United States District Court for the District of Columbia has ruled that the fact of whether or not the CIA has used drones for targeted killings and attacks is a CIA intelligence source and/or method and is therefore protected pursuant to FOIA Exemptions 1 and 3.  The Court further ruled that then CIA Director Leon Pannetta's public statements did not acknowledge the existence of the records, if they exist.

Government Loses Classification Issue

Judge Richard W. Roberts of the United States District Court for the District of Columbia has ruled that the United States Trade Representative has failed to establish that one document withheld pursuant to a FOIA request by the Center for International Environmental Law is not properly classified and therefore not withholdable pursuant to FOIA Exemption 1.  In making his finding, Judge Roberts found that the reasons the agency gave for classifying the document were inconsistent and therefore did not allow for the material to be classified.

The government gets a high degree of deference in classifying information; it is rare that a court finds that the government did not establish that the material was properly classified.  However, in this case, the government's declarations reached inconsistent conclusions and the court found that this was enough to invalidate the classification.

Government Wins on Enhanced Interrogation Technique FOIA Suit

Politico reports that the Government has won summary judgment on a lawsuit brought by the American Civil Liberties Union on documents concerning enhanced interrogation techniques used by the Bush administration.  After releasing and segregating certain documents, United States District Judge for the District of Columbia Rosemary Collyer said the government's use of Exemptions 1, 3, 5 and 6 were proper.

Among the Exemption 5 privileges used was the presidential communications privilege which protects material going to the President and his top advisors.

Gitmo Prisoner Photos Ordered Release

Judge John D. Bates of the United States District Court for the District of Columbia has ordered the release of photos of certain prisoners being held at Gitmo.  Judge Bates ruled that the government did not adequately demonstrate that exemption 6 (privacy) protected these photos.  Judge Bates did rule that the government's search, except for one instance, was adequate and that parts of the documents were protected pursuant to Exemptions 1 and 2.  The Court deferred ruling on some of the documents the government is attempting to withhold pursuant to Exemption 1 until the government could provide a third declaration--the final declaration the Court said it will allow before ruling on the matter.

Josh Gerstein of Politico has more here.

New Classification Executive Order Issued

President Obama has issued his administration's Executive Order on classification.  This Executive Order supercedes the amended order of the Bush administration. 

Courthouse News Service has this summary of the order.