Sunshine Week 2021 Program - Transcript
NOTE: This is the transcript of the National Archives Sunshine Week 2021 Program which we received from the transcriber. This transcript may contain errors.
EVENT PRODUCER: Ladies and gentlemen, welcome and thank you for joining 2021 Sunshine Week at NARA. Before we begin, please ensure that you have opened the Webex participate in chat panel by using the associated icons located at the bottom of your screen.
Please know all audio connections are muted, and this conference is being recorded. You're welcome to submit written questions throughout the session, which will be addressed at the Q&A session of the meeting. To submit a written question, select all panelists from the dropdown menu in the chat panel, then enter your question in the message box provided and send.
If you require technical assistance, please send a chat to the event producer. With that I'll turn the webinar over to David Ferriero, Archivist of the United States. Please go ahead.
DAVID S. FERRIERO: Or Alina Semo.
ALINA M. SEMO: Yes. Good morning everyone. Good afternoon, everyone rather. Sorry. This is Alina Semo. I am the Director of the Office of Government Information Services, I want to welcome everyone this afternoon. Thank you all for joining us virtually at the National Archives today, as we kick off our celebration of Sunshine Week, 2021. Whether you're joining us by Webex or the NARA YouTube Channel, we welcome you.
I hope everyone has been staying healthy, safe, and well. As some of you may know, OGIS resolves FOIA disputes by identifying methods to improve compliance with the statute and educate our stakeholders about the FOIA process. And we're very excited once again, to help David Ferriero, the Archivist of the United States host us on Sunshine Week at the Archives.
It is hard to believe that one year ago, we had to cancel our Sunshine Week event due to the global pandemic. But if this past year has taught us anything, it is that we can adapt to changing circumstances. And we have been successful in hosting numerous virtual events since March 2020.
Each year, we honor Sunshine Week by promoting dialogue about the importance of open government and access to information, values that are central to the mission of the National Archives and Records Administration.
We have put together an exciting program this afternoon, and I'm particularly pleased that we will be bringing viewpoints from both the judicial and legislative branches.
Please visit our website archives.gov/ogis. There you will find more information regarding today's program including speaker biographies. This will help maximize the time to hear from all of our speakers today.
A few brief housekeeping items before we launch into today's program, members of the OGIS staff will be monitoring the chat function, both in Webex and the NARA YouTube channel throughout this afternoon.
We will leave a few minutes at the end of each segment for audience questions that you may type directly into the chat function of either platform. If you experience any technical difficulties while participating via Webex, please feel free to chat our event producer for assistance.
On the YouTube channel, our OGIS staff will do their best to assist you with any technical issues. Unlike other public events OGIS has hosted in the past, we will not be accepting questions via telephone and we will not take a break.
Now it is my honor and pleasure to introduce the Archivist of the United States, David Ferriero, who will officially kick off our program today. David Ferriero was confirmed as the 10th Archivist of the United States on November 6th, 2009.
Prior to his confirmation as Archivist, David served at the Andrew W. Mellon Director, the New York Public Library, and held top positions at the nation’s major academic libraries, MIT and Cambridge, Massachusetts, and Duke University in Durham, North Carolina.
He earned his Bachelor of Arts and Master of Arts degrees in English Literature from Northeastern University in Boston, and the Master of Arts degree from the Simmons College of Library and Information Science also in Boston.
Since early in his tenure, David has committed the National Archives to the principles of open government; transparency, participation, and collaboration which are the very values we are all celebrating today.
David has also been a constant supporter of OGIS and the work that we do. And we are extremely grateful for his distinct support and leadership. Please join me now in welcoming the Archivist of the United States, David F. Ferriero to kick off today's program. David, over to you.
DAVID S. FERRIERO: Thank you, Alina. And greetings from my office at the National Archives building on Pennsylvania Avenue here in Washington, a year after the COVID-19 pandemic forced cancellation of Sunshine Week events across the country, including here at the National Archives.
I recognize the difficult times we've all faced over the past year as we've distanced ourselves from one another juggling professional and personal obligations, engrappled with national and international unrest and uncertainty.
Sunshine Week is an annual nationwide celebration of access to public information in mid-March that coincides with the birthday of the fourth President of the United States, James Madison. Tomorrow, March 16th, marks 270 years since his birth and it's particularly fitting that we at the National Archives celebrate Mr. Madison.
Among the many treasures of America's past and the holdings of the National Archives, are two documents that Mr. Madison played a pivotal role in drafting and promoting, the U.S. Constitution and the Bill of Rights.
Mr. Madison was largely responsible for the proposals guaranteeing freedom of the press and ensuring jury trials, matters that are near and dear to today's program guests as well as to our democracy.
In a letter penned in 1825, Mr. Madison said, "The advancement and diffusion of knowledge is the only guardian of true liberty." 141 years later in 1966, the 34th President of the United States, Lyndon Baines Johnson, echoed that sentiment in signing the Freedom of Information Act into law.
In his bill signing statement, President Johnson noted, "I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens should determine when it must be restricted."
Today, government transparency remains as important as ever both within and beyond the FOIA framework. Our National Archives staff works to make access happen, not just during Sunshine Week, but each and every day even during a global pandemic.
Despite teleworking full time, staff members from our Office of Research Services are responding to reference requests, preparing, and submitting digitized files and metadata for upload into the National Archives catalog among many other tasks.
Mission and essential staff members in our National Personnel Records Center in St. Louis, have regularly reported to work throughout the pandemic to access paper records often needed to support veterans and their families with urgent matters such as medical emergencies, homeless veterans seeking shelter, and funeral services for deceased veterans.
These exceptional National Archive staff pioneered alternate work processes incorporating physical distancing and other protective measures to ensure a safe work environment while providing this critical service.
As we work to cultivate access to important government records, the National Archives also continues to set the pace in the government wide effort to modernize federal agency, record keeping, and transform to a fully electronic government.
Since the pandemic started one year ago, NARA's Office of Government Information Services, the federal FOIA Ombudsman has responded to more than 4,000 inquiries from requesters and agencies seeking assistance with the FOIA process.
OGIS has published seven on topics as wide ranging as agency communication with requesters during the pandemic and proactive posting of documents on agency FOIA websites. OGIS connects with customers in many other ways, including through the FOIA Advisory Committee and in public events such as this one.
It's a special treat to welcome the Honorable Judge Royce Lamberth of the U.S. District Court here in Washington, DC. Judge Lamberth is a longtime friend of the National Archives, and in pre-pandemic times frequently presided over naturalization ceremonies as immigrants have taken their oath of U.S. citizenship in front of the declaration, the Constitution, and the bill of rights, our nation's cherished charters of freedom.
Today, he is joined by his biographer and former law clerk, Adam R. Pearlman to discuss open government and the legal landscape. Following the conversation, another friend of the National Archives, Senator Patrick Leahy of Vermont will join us in a recorded message.
Senator Leahy, who chairs the Senate appropriations committee was elected to the Senate in 1974, the same year that Congress amended FOIA in the wake of the Watergate scandal and several other court decisions. In his four plus decades since, he's led every congressional effort to reform FOIA and is a true champion of the statute and of government transparency overall.
Finally, we'll close our celebration with a panel of open government experts continuing the discussion about U.S. transparency. I'm pleased to welcome Michael Bekesha of Judicial Watch, Katie Townsend of the Reporters Committee for Freedom of the Press, and Alexander Perloff-Giles of Gibson, Dunn & Crutcher's Media Entertainment and Technology Practice, and a member of the FOIA Advisory Committee. Their discussion will be moderated by Kristen B. Mitchell of OGIS. So, happy Sunshine Week. I hope you enjoy today's program, and I turn the microphone back to Alina
ALINA M. SEMO: David, thanks very much for that enthusiastic introduction. And we're right on schedule, so I'm going to continue our celebration of open governance; introducing our first event in our agenda. I know you all share my excitement in hearing from Senior United States District Court Judge Royce C. Lamberth today.
Judge Lamberth has served on the United States District Court, for the District of Columbia, since 1987, including as the presiding judge of the United States Foreign Intelligence Surveillance Court from 1995 to 2002, as Chief Judge from 2008-2013, and since 2013 as a Senior Judge.
Most recently, Judge Lamberth has been assigned as a visiting judge for the U.S. District Court for the Western District of Texas, which makes sense since Judge Lamberth is a San Antonio native, having earned his BA from the University of Texas and an LLB from the University of Texas, School of Law.
We owe our gratitude today to Adam R. Pearlman, Judge Lamberth's former law clerk for pulling together the segment today. Adam himself has a distinguished resume. He is a national security law expert with many years of experience, both in the executive and judicial branches of government.
He has a JD from GW Law School and a BA from UCLA. I was particularly intrigued to learn that Adam speaks and reads Portuguese, but we hope the conversation with Judge Lamberth today will be in English. Please join me in welcoming Senior Judge Royce Lamberth, and his former law clerk, Adam Pearlman, for what is sure to be a fascinating conversation regarding Judge Lamberth's judicial legacy. Over to you gentlemen, thank you.
ADAM R. PEARLMAN: Thank you, Alina. And I can promise it will be in English today. There are clips of me in Portuguese out there, but we'll spare everybody that suffering. But thanks again, Alina, thank you, Mr. Ferriero, thank you, National Archives, and Alina, your whole team on behalf of me and Judge Lamberth. I think it's fair to say we are both honored to be here.
As recently as last week, The Washington Post called Judge Lamberth a fiery presence on the bench. And I think we'll probably see a bit of that today. As his biographer, I might have certain biases but one of the questions I've been asking people who I've interviewed is not some sycophantic exercise of, “is he the best trial judge on the bench, or is he the nicest, or is he the most eloquent?”
What I have asked is, “is he one of the most consequential trial jurors in the United States in the last 50 years?” And not a single person that I've spoken to so far has quarreled with that proposition.
His cases touching on government transparency are but one reason why Mr. Ferriero himself once mentioned to me that at least some point he had more published FOIA cases than any other judge. He's in the Freedom Forum Institute, National Freedom of Information Hall of Fame.
And of course, there's more from the law that he's created in national security cases with respect to the handling of classified information or to his defense of or adjudication of some of the biggest civil suits brought against United States, to some key rulings with respect to the very secretive grand jury process.
Today, we get to publicly talk about some of these issues and perhaps preview some of the stories in a perspective that may ultimately appear in the book.
A couple of quick ground rules. We have about an hour and plan to save some time for Q&A, but obviously we won't be discussing any matter that is currently in any stage of litigation. Nothing said should be construed as suggesting how Judge Lamberth might rule in any particular case in the future, nor does any opinion that I might offer today necessarily represent the policy or position of any department or agency that I've happened to work for.
And I figured we'll just kick this off, but because it's Sunshine Week, let's begin with a case that implicated, at least in a small way, the Sunshine Act. Judge, can you talk to us about your 1993 case of Association of American Physicians and Surgeons v. Clinton?
JUDGE ROYCE C. LAMBERTH: Well, it was one of the first cases I had involving the Sunshine Act. The Advisory Committee Act was intended to be open, and if you did not have all government employees, the meetings had to be open and if they were not open, the minutes had to be public.
And when President Clinton first came to office, he decided to set up a Task Force to decide how healthcare should be reformed. Something that ultimately happened under President Joe Biden years later. But when President Clinton first took office, he set up a Health Care Task Force and he made the First Lady the chairman of the Task Force.
She was not a government employee, so it was clear to me when the case was brought by this Association of Physicians and Surgeons that she had to have the meetings open to the public, and the minutes of the meetings that had already been held had to be made public.
And the statute was crystal clear, and so I ordered that the meetings be open to the public and the meeting minutes be made public. And it was like a huge upsetting of their cart for the Clinton administration. They took off January 20th, I had ruled by early March that all this had to be done. They took an emergency appeal and the appeal was decided by May, so we were on a very fast track.
Interestingly enough, the Court of Appeal reversed me. It was an interesting experience for a District Judge. I had been on some time by then and I was quite confident that on the law I was right. 20 years later, I still think on the law I was right. The law was crystal clear, if you're not a government employee, this is the way it works. The Court of Appeals found that she was the functional equivalent, whatever that means, of a government employee.
Obviously, the First Lady was unique but she was not a government employee. The conflict of interest laws did not apply, all the normal things that go along with government employment like conflict of interest laws and statutory requirements that would apply to who could meet with her and who couldn't and all those sorts of things, did not apply. The groups did not have to make disclosures since she was not a government employee, all those sorts of things.
But the Court of Appeals actually ruled that she was the functional equivalent, whatever that means, of government employee. So they reversed me and said that this could all be done in secret. Well, you can imagine that there was quite a consternation. And ultimately, I was blamed when the Health Care Task Force went down in flames and it was one of the major failures of the new Clinton administration.
And it was a complete disaster in public relations for the new Clinton administration, but the whole Health Care Task Force foundered on their lack of transparency in their reviews of the business out in the open, and the way they went about trying to secretly develop a plan to reach an order of the whole healthcare system.
And it was done when the Obama administration came in and they then did a new plan. They did it all in the open. They then ran into some trouble because they couldn't get a single Republican to vote for it, so it was also a controversial plan. It became known as Obamacare because they didn't get a single Republican vote, but they got it through. It was voted through contrary to the Clinton plan. But in any event, it was a major setback for the Clinton administration because they tried to do it in secret and it didn't succeed.
I was never in doubt about what the law was. I was always in doubt about why the Supreme Court refused to take the case, but obviously it was a very political case in terms of what is the role of the First Lady? What does that mean about just rewriting the law to take care of the First Lady's position, which the Court of Appeals did very conveniently, and said she's the functional equivalent of a government employee.
That was one of the most significant early on cases I had about openness and government, but I've certainly had my share over the years. [crosstalk 00: 19: 33] I have one thing while we're here, and that is it's a great honor for me to be invited by David Ferriero to give this talk today.
The Archives under his leadership has done a terrific job of responding, and being transparent, and helping with government transparency. And I very much appreciate Mr. Ferriero's efforts. And keeping this going, some agencies have done better than others during the pandemic. The Archives is one of those that has really tried to keep the effort ongoing. Many agencies have really just stopped processing FOIA, and it has been a real hardship in many agencies to get documents out at all because they give such a back seat to FOIA during this year of the pandemic.
They Archives has really led the way in not letting that happen. And I commend the Archives and Mr. Ferriero's leadership of the Archives, and how he has really not let that happen to the Archives. The Archives is, under his leadership, a leading part of the government always in transparency and openness. And I'm delighted to be able to have the opportunity to talk about that subject today.
ADAM R. PEARLMAN: Indeed. And I guess that's a good way to get immediately to what is really the workforce law I guess of government transparency, and that would be the Freedom of Information Act, but that's very familiar to everyone.
There's certainly more, we'll talk about more but let's talk about FOIA for a couple of minutes. Evidently, you're nearing about 200 published FOIA opinion. And in one from a few years ago called the Labow v. the Department of Justice.
You did note that and I'll quote, "For anyone skeptical of the truth behind the cliché, that freedom is not free, FOIA litigation is perhaps one of the best examples of the costs of open government. In this area of law, fights over singular words and individual sentences routinely last several rounds of administrative review and litigation, including volleying between the district and appellate courts. This opinion alone will dedicate several hundred words to examining whether the FBI may withhold a single sentence."
That's of course, just one passage and one opinion of many, many years of FOIA jurisprudence, but it is certainly a resource intensive process. And can you briefly talk about how you handle FOIA cases as a judge versus how you litigated them when you were an assistant U.S. Attorney?
JUDGE ROYCE C. LAMBERTH: Well, most FOIA cases will go with the some process of getting the documents processed first, and then going by way of motion for summary judgment opposition reply, and a presumption of regularity. Sometimes you will have cases... I had a case called Judicial Watch. I had many cases with Judicial Watch, you're going to hear one of their representatives on the panel.
Today, I'm going to stay on the line and hear that panel, because I like to hear practitioners in this area and Judicial Watch certainly is one of the leading practitioners that appears before me a lot. One of their early cases that I had with them back in '98 was they were alleging that the Department of Commerce had records that would prove their thesis, that if you made a certain contribution to the Democratic National Committee of $100,000, you would get on a trade mission and could fly overseas with Secretary Brown, the Secretary of Commerce.
And if you've made that amount of contribution to DNC, then you would get to go on a trade mission with Secretary of Commerce overseas. They were trying to get records to demonstrate that from the Commerce Department under FOIA. They came up with that information that I was allowing discovery. So they had shown some inconsistencies in Commerce's affidavits, and I had opened up discovery and they... I said to Mr. Klayman who was in representing Judicial Watch that every time he got some discovery, he turned over a rock and I would have to authorize some more discoveries.
You're doing it step by step in FOIA because normally you don't allow discovery in FOIA, but he kept overturning rocks and finding other stuff. And it finally got to the point where he overturned some information that demonstrated that this deputy undersecretary had taken a box of documents home, and then they denied they had these documents but he had them at home.
So they didn't have them in their possession, he had the documents at his house. And he had pretty good evidence of this, so he had a whistleblower that actually had given him a statement that he filed with me in camera.
So I actually got the marshals, and gave him a subpoena and they went over and they got the box of documents at this deputy undersecretary's house, and it was the documents that were the smoking gun. And I got them by subpoena from the deputy undersecretary's house. So it was obviously an unusual Freedom of Information Act case that goes that way, but it proved the truth of what they were trying to prove in the first place, so that is what you call open government.
The documents were there, but they were at his house. So they denied it [inaudible 00: 25: 31] they didn't have them in the government possession because the secretary took them home. And a first for me, I've had some other interesting FOIA cases. I have a couple if you want to talk about a couple of I've had the Landmark Legal Foundation of I don't know if they caught that one where the deputy undersecretary took them home but-
ADAM R. PEARLMAN: No. You've got a couple of different ones with Landmark Legal against EPA involving a couple of different administrators. I think from both parties, I want to emphasize that [crosstalk 00: 26: 15].
JUDGE ROYCE C. LAMBERTH: I had Republican EPA head and a Democratic EPA head or both miscreants. The first one, the Republican head of EPA had information just before the... I guess this would've been in... I forget which election anyway. It was the Republican head of EPA and the Landmark Legal Foundation had information that she was going to leave office on January 20th, and they were trying to get records of all the regulations that she was trying to repeal and other regulations she was trying to hurry up right before she left office. And they're trying to get all these records just before she was leaving office. And so what she was doing those last few days she was leaving to go.
And they came in two days before she was leaving office, and they had some information that showed some things had been going on in the administrators staff that led me to agree that I would give an order that she could not destroy her hard drive on the day she was leaving office and could not destroy any other records in her office and things like that.
So I had a hearing two days before she left office. He entered an order that her hard that drive be preserved by the government and her other records and so on. I had issued the order. The morning of the inauguration, she went to her office and physically destroyed the hard drive on her computer and destroyed all the records that they would have been sinking. And I ended up with an order to show cause why she should not be held in contempt, and the agency should not be held in contempt as well.
And it turned out at the trial, that no one told her about my order so she actually honestly did not know of my order. The agency lawyers did not tell her, no one told her so she actually had no personal knowledge of my order. So I held the agency in contempt, but no one ever told her that I had entered that order, and she could not be held personally in contempt to my order. I could not hold her and did not hold her personally in contempt. You can't hold someone in contempt if they don't know the order.
But I did hold the agency in contempt and they did get soaked with attorney's fees and a lot of bad publicity for having destroyed the records that would have shown what the plaintiffs wanted [inaudible 00: 29: 12] perhaps, but because it had been destroyed at that point, there were other records that then demonstrated some of what the plaintiffs wanted, but the key was gone.
Obviously, that's not openness in government when you're destroying your hard drive on the day you're leaving office. Probably, other actions could have been taken on the Federal Records Act by the other statutes, but maybe were being violated that day as well. That was not before me on the contempt motion but in any of that.
Just to show that it's not always just one party, four years later I have another FOIA case standing. A different administrator, not even the one that replaced that one, but it's another one. And in the discovery, there began to be some suspicious things that nothing that ever goes to the administrator and no policies are ever acted on by the administrator herself, and it begins to look a little suspicious, that how is this agency ever run and the administrator herself she never has a fingerprint for anything? And how do they actually decide anything before the administrator has never actually done anything?
And so I began to wonder if maybe something is going on. And somewhere in there, based on some discovery I allow, which is unusual, but I did allow some discovery. They find out she had created a FOIA account in her dog's name. And if you wanted to go to the administrator for her approval of anything, you sent it to her dog. And all of the FOIA stuff went in her dogs name to her. And she did everything in her dog's name, not in her name.
And then when you made a FOIA request, it was processed in her name and no one ever processed any FOIA document in her dog's name. So they had been denying under FOIA all of these requests, because they never processed anything. The dog's name, no one had ever requested anything in the dog's name. They didn't know what's in her dog's name.
Actually that one created such a scandal that she ended up being forced to resign, it's administrative. So I never actually had to rule in contempt or any of that stuff from that one because she was forced to resign by public acclamation, I guess after Landmark Legal one covered all that in the discovery. So I've had my share of unusual FOIA cases as well in my time. By and large, those are the exceptions not the rules luckily, but sometimes you do uncover unusual circumstances.
ADAM R. PEARLMAN: Right. It's easy and admittedly a little bit fun in a dark way to poke fun at the foibles of government and misdeeds of some people over the years. It's just a matter of statistics when you're dealing with an organization of literally millions of people, you're going to find some people who have behaved badly sometimes. Of course the [crosstalk 00: 32: 42].
JUDGE ROYCE C. LAMBERTH: [inaudible 00: 32: 42] of the agency?
ADAM R. PEARLMAN: Well, yes, it is very much so. And that brings up other questions of leadership and standards and ethics as well. But as you mentioned, despite having these numerous high profile sensational cases where it's clear that somebody in the government behaved badly and that's to be generous sometimes, we still in FOIA cases start off with a presumption of good faith. Can you explain a bit about that for us? And what a plaintiff really has to show to pierce that veil and get discovery?
JUDGE ROYCE C. LAMBERTH: Well, there has to be something unusual. I mean day to day, we expect the government to act in good faith and day to day that's what we see the government doing. And day to day, the FOIA people in most instances have no axe to grind, and they're just processing the documents and screening them. The FOIA lawyers have no axe to grind. The Justice lawyers that typically are in the case has not been involved in the underlying dispute and have no special reason to cover up or be a participant in the covering up things.
Obviously, there is an overall temptation in the government to not want to come forward and make clear that they've screwed this up. That's a human tendency to not want to admit your mistakes or broadcast your mistakes. But we find across the board that in most instances, the government tries to make arguments that are facially valid, and we can look at them and analyze whether they're facially valid or not. And there's got to be something more than just speculation to get you into discovery, there's got to be some factual basis. What I was finding in those cases we've been talking about was something more that led to getting you to discovered?
We're not going to give discovery and let you open the coffers to the government files in every case, it would just bog down the government so they could not function if we did that in every case. So you've got to have something more, something suspicious. Something that points to being able to put this burden on the government. And there's got to be something that would lead a judge to think that the government is doing something suspicious, before we're going to put that burden on the government of going through all that. And many plaintiffs will try to do that, but almost always I see what they're doing is speculating that, well, there must be something there. And they really have nothing more than speculation. They've got to have some basis for the speculation before I'm going to authorize the discovery.
But I understand in the back of my mind that it's possible, there's something there. So plaintiffs frequently, they will say, "Well, look at it in camera." Looking at it in camera is not a really great basis because that's really just substituting my judgment for the government's judgment. It's looking at the documents themselves that they're choosing to give me. That's not any real answer to whether or not the government is hiding things, or not disclosing things that they should be disclosing. I'm looking at things in a vacuum when I'm looking at them in camera. And the plaintiff isn't getting to see what I'm seeing, but the public isn't getting to see it either. It's an uncomfortable situation that I'm in, to just think that I wave some magic wand and look at it in camera. I don't think that's a great way to do FOIA cases. I very rarely want to look at things in camera because I think that's just cutting the plaintiff out of a process totally, for me to look at it in camera. That's not a great answer either.
ADAM R. PEARLMAN: And I've... You get pretty frustrated with plaintiffs who come into court citing nothing but anonymously sourced news reports as well. I think that's [indistinct] speculation and --
JUDGE ROYCE C. LAMBERTH: Well, I have to resist when people tell me, "Well, based on some story in the Washington Post..." And I try to not just knock The Post, but I don't credit news accounts. You know, news accounts are not evidence. So I try to resist saying, "I don't believe what I read in The Washington Post." I'd just say, "I don't believe news accounts." Although I read The Post every day. So I could say this, but I don't read news accounts as evidence. You need something as evidence, not just The Washington Post story and say that you have evidence.
ADAM R. PEARLMAN: And what is the respective role as you see it, both from your experience as being Civil Chief and in DC, and from the bench? What do you think, and what might you recommend, in terms of the respective roles of the responsive office and agency counsel and the Justice Department in these cases?
JUDGE ROYCE C. LAMBERTH: Well, hopefully they work together. Agency counsel, or closer to the agency people that are working in the documents, that know about the documents, that understand the documents, that understand the record keeping system. And hopefully they can educate the Justice lawyers. The Justice lawyers hopefully understand the judicial process better, know the judges better. If they practice in our court, they probably have an inkling about the judges and how the judges have ruled in other FOIA cases. And know the kinds of things that appeal and don't appeal to the judges. May even know some of the case laws the judges rely on, know that there are certain judges that you might as well not make that argument to, and other judges you might want to look at what you're arguing and certain approaches you might want to take. I mean, having written as many FOIA opinions as I have now, when I first came on the court, I think my first five years, when lawyers started citing me to myself, I was quite alarmed.
I said, "Don't you have something better than that?" Because [inaudible 00: 39: 53] some real judge that had cited the case, and decided this instead of just me. And the lawyers were very delighted to have found something I had said before, that I thought I'd want to do that again, that I was hoping they had something better than just citing me, but, I find lawyers really like it when they find something I've said before, they think “I'll just say the same thing again.” You know?
Well, lawyers do that and lawyers find where I've ruled in this FOIA exemption before. I guarantee you, if they got the same exemption, they're going to cite where I've said that before, you know? And that's a pretty smart lawyer actually, because I don't want to contradict myself. So the agency lawyers really don't have that kind of depth of knowledge of how to present the case that the Justice lawyers and the U.S. attorneys do. Even the U.S. attorneys have a more depth knowledge of the judges here. Sometimes the Justice lawyers [inaudible 00: 40: 50] a lot of FOIA cases here. They'll know very well which ones are going to appeal to me and which ones they can cite me to myself in. I do try over the years to not contradict myself. I think many judges try to do it that way. So it's smart for a lawyer to cite the judge to himself, because I don't want to be inconsistent with my own prior cases. Judges have that mindset.
ADAM R. PEARLMAN: Interesting. Well...
JUDGE ROYCE C. LAMBERTH: Now I've just shot myself, I guess, by revealing that little tactic.
ADAM R. PEARLMAN: Well, you know, sometimes you’ve been overturned too, and it would be a bad idea to cite you on a principle. Every so often. But you're known as an expert on, and having developed a lot of different areas of national security law as well, both on the District Court and on the Foreign Intelligence Surveillance Court. So between FISA and the Classified Information Procedures Act, the Foreign Sovereign Immunities Act, and other areas of national security law. Guantanamo... But one former very senior national security lawyer once posited to me that he thought that FOIA, in some ways, was what really gave rise to important elements of national security law across the spectrum, especially when it came to requests to the National Security Agency during the Vietnam Era. I mean, what do you think of that thesis?
JUDGE ROYCE C. LAMBERTH: Well, I think it's true. I mean, I think that for the longest time, the NSA was never thought to be subject at all to any open records production, or to any kind of production of any records to the public. And when it became subject to FOIA, it was a rude awakening. The NSA and CIA are extremely conscientious about their duty to protect national security secrets. And I find both of them to be extremely helpful to the core in trying to marshal the arguments that are very helpful to the court, so that we can understand the issues.
I sometimes get a supplemental briefing on those kinds of issues. I find that across the board, they are excellent lawyers. They provide excellent help. I think when I do seminars for judges for the Federal Judicial Center and otherwise, my concern is that many judges think that you just give blind deference to the security agencies. And I do not think that's what Congress ever intended, and I don't think that's what the Constitution envisions, that we have to give deference to national security concerns, but it's not blind deference. We have to look at the issues. We have to study what the arguments are. And we have to decide ourselves under article three... We're judges, we make independent decisions. And some of these issues are tough.
I think that we have to make sure we know that what they're doing is right, and that it's not for some of nefarious or political reason, but it's for some valid national security reasons. And I have never found that when I got to the bottom line that I could not get to the right result with the concurrence of the National Security Agency. Sometimes with having them reconsider where they were with my thoughts in mind, as well as their own. But I don't think that we've ever gotten to loggerheads that could not ultimately reach a result that we could both live with. But it takes some effort and some work. Some of those cases are criminal cases where, and particularly in some of the terrorist cases, the judge has a very tough task in criminal cases in particular, where you have to follow the Classified Information Procedure Act.
And those are very tough issues about national security. In FOIA, it's not as detailed or as tough to do, because the statute is more deferential, but not totally differential to the classified information that the security agencies want to protect. But these are difficult issues, and I find across the board that they are conscientiously trying to do the right thing. I know that the ACW and the national security practitioners on the other side are very useful in helping them keep on the right track. The FISA court, for example, has found these amicus lawyers that are participating in the process now, to actually be helpful to the process, not a hindrance to the process.
And I think that is ultimately going to turn out to be an improvement to the public perception of the court, and to the public perceptions that the FISA court is not just a rubber stamp for the government, but it is part of a judicial process that will be more fair and perceived to be more fair ultimately. And transparency in government is important. And it's important if the FISA court is going to be a court, it has to be partly look like it's a court. And a court can't be, everything can't be secret, if it's a court.
ADAM R. PEARLMAN: Right. And circling back to Mr. Ferriero's introductory remarks, where President Johnson had cited national security concerns when FOIA was passed to, as you mentioned, these other bodies of law. And of course, in addition to those, of course, these aren't the only ways to shed light on government conduct. One of your first cases as an Assistant United States Attorney was a case called Berlin Democratic Club, which was brought up in bivalence to you. Can you quickly explain what a bivalence case is and what happened in BDC?
JUDGE ROYCE C. LAMBERTH: Well, in the Berlin Democratic Club case, the Army was accused of spying on anti-war dissidents in Germany, and other activities that were during the Vietnam War, and engaging in other improper surveillance activities overseas. And one of the first principles that was litigated in the case was, does the Constitution follow the flag? The chief judge of this court clearly ruled that the Constitution follows the flag. And if the United States government is doing something overseas against the United States citizens, the Constitution is right there with that U.S. citizen? If the U.S. government is doing it, the Constitution follows the flag. And that U.S. citizen has rights against the U.S. government in that overseas city.
And we went from there and we started looking then at what the U.S. government had been doing to U.S. citizens in Germany. And it turned out, contrary to what I told the court in the first instance, I found affidavits from generals and others that turned out to be false. And I learned a huge lesson from that case. And ended up taking 13 trips to Germany with my own investigation, ordered by the Secretary of Defense. Ended up in quite a donnybrook that lasted for several years before we finally came to a settlement between the ACLU as to how to get out of that case with the settlement status factors, ACLU, and the government, that ultimately settled that case some years later with the total reform of what the Army had been doing in surveillance activities in the Vietnam Era.
ADAM R. PEARLMAN: Another seminal example, but from when you were on the bench, I think all I have to say is the case name. Tell us about Cobell.
JUDGE ROYCE C. LAMBERTH: Cobell was a case where it's one of those cases where it was filed shortly after I joined the bench. And I knew from the beginning, it was going to be a major case, the 500,000 class action case of 500,000 individual Indians. The money was the Indians' own money that the government was holding in trust for the individual Indians. It was land and timber and oil acres that the Indians owned, and the money was held... The Indians' money, it was their money held in trust for them by the Department of the Interior. The Department of Interior had records, but had (indistinct) the records, could not account for the records, could not account for who they were paying what to. And from the outset, I was dumbfounded because I had spent my career really after the Army and the Justice Department. And just for two years, was constantly lied to by Justice Department and Interior Department lawyers, and did not believe they were lying.
I was being told by the Indians’ lawyers they were lying and did not believe it, until finally I figured out they had been lying. And I was just dumbfounded when I finally figured out that I had been told all these lies. You don't want to lie to me for two years and think you're not going to pay your price. So the price ended up being the first Secretary of Interior and the Secretary Treasurer held in contempt. It was the first time I think we have shown that it was the first cabinet member held in contempt by a member of judiciary, I think in history.
It was so egregious that the administration could not even appeal my contempt finding. The administration changed and I thought the new administration would come in and wear the white hats. They didn't. So I held the second Secretary of Interior in contempt, but the result of that was although I was confident, what I did [inaudible 00: 53: 07] decided that better to just remove me from the case, because I was too pro-Indian. And the final result was the case settled on appeal. And the Indians got $3.4 billion, which I thought to me, proved that I had been right all along. The Indians were screwed out of more than 3.4 billion, but the government coughed up 3.4 billion to make the case go away.
ADAM R. PEARLMAN: [crosstalk 00: 53: 39].
JUDGE ROYCE C. LAMBERTH: The Indians would have never got the 3.4 billion if I hadn't forced the government to produce all the documents they did produce, I will say that.
ADAM R. PEARLMAN: And for perspective, that 3.4 billion is the largest settlement the U.S. government has ever entered into, at least certainly at that time. I'm not sure if it's been eclipsed.
JUDGE ROYCE C. LAMBERTH: I think it's still the largest settlement ever by the government. It's 3.4 billion.
ADAM R. PEARLMAN: Yeah.
JUDGE ROYCE C. LAMBERTH: And one reason the government was so scared of it was the money, obviously.
ADAM R. PEARLMAN: Right. That's a chunk of change. For everybody watching, there is a documentary on the Cobell case called 100 Years, that just cycled off Netflix after two years. But I'm told that you can still stream it on PBS until March 21st. It's a fascinating case. But Judge, as we get closer to the end, we've talked a lot about the executive branch. And obviously, Congress and the courts are subject to some different rules. Should Congress or the courts be subject to greater transparency laws?
JUDGE ROYCE C. LAMBERTH: I'm doubtful. The courts are very open. Most of our proceedings are open and we really have to justify closing anything. And I think we really do very little in camera, and we have to justify these things if we're going to do it in camera or ex parte. I, I think that, and Congress mostly is open. They, they have very few hearings that aren't open. You know, I'm pretty satisfied with how the courts of Congress are doing. I mean, they're always going to be backroom deals, but I mean, you can't...
I don't think that's... I don't perceive to be anything that would be cured by legislation. I may be wrong. I don't know if they're proponents of these things, I haven't seen any legislations that I felt would actually cure anything. I do think in terms of, there's a lot of talk about whether the Supreme Court should televise their proceedings. I've been privileged to talk about that with some of the members of the court. And I will tell you upfront, I think that some members of the court, I'll put it that way, have a valid concern that it would impact the way they use arguments now. They have a small bar that they use the arguments with that small, very insular bar. And they use the arguments as a way to talk among themselves with the members of their bar. And really, it's the first discussion they have among themselves of the case.
They don't talk among themselves until they have an oral argument. They don't go lobby each other about how they're going to do the case until they hear the lawyers. And they have a section after the oral argument where they vote and then sign out the opinion. The opinions, majority or minority. And that's right after the oral arguments, probably that Friday or the following week. And so that's a key time. That's all key to their argument. And they use the argument among themselves, and handing these down to the lawyers, some of the questions traditionally have been to bring up points they want to make to their colleagues. And they're using the argument to make sure they're getting those points across to their colleagues. So the argument is in a way that they use it as part of how they're going to take positions in conference with their colleagues.
So that's part of how they use the arguments. And the experienced members of the bar know that's how the argument is being used. And they're practicing their arguments on that kind of a basis. Now, if you're Ford Motor Company and you have an argument there, and millions of people are going to be watching that argument, are you worried about those few people that care about how the case comes out? Are you worried about the 20 million people that are going to be watching it on TV? And I tell you, Ford might really care more about that 20 million people than this little case. And the Supreme Court justices, I think, are worried to death about what's going to happen to their arguments. So I really understand why they're reluctant. I understand the argument on why they're reluctant. Some of them. I think that what has ended up happening from the pandemic, and having these arguments on tape, full arguments on audio tape, is kind of interesting.
I think that there's been some speculation that the junior justices have kind of liked it, because they get some automatic times that otherwise it was time to squeeze in, hard to squeeze in your questions, because everybody gets a limited amount of time. It seems to have loosened up things to where Justice Thomas now asks more questions than he ever has. It sort of demonstrates the fallacy of the old school idea that Justice Thomas was just a clone of Justice Scalia. And many more people now realize Justice Thomas is actually brilliant and has a mind of his own and thinks for himself, and demonstrates it in the questions he asks. And people now realize that he's a leader in his own right, and thinks some pretty deep thoughts for himself, that he demonstrates in the questions he asks now. Which surprises some people, extremely enough to me.
I think that this whole debate is pretty interesting, question. I can't see the Supreme Court agreeing to air it on television. Whether they would agree to delay the audio, I don't know. Maybe progressives might want to do it. I'm not so sure that the Court is ready for that yet either, frankly.
ADAM R. PEARLMAN: But if they can-
JUDGE ROYCE C. LAMBERTH: From the public point of view, I sort of think the public has a better understanding of the Supreme Court from this experience, because they understand better that these are serious minded people that look at the issues conscientiously, that don't look at it as politicians, that look at it as serious legal questions that are looking at serious legal issues. And five to four votes don't really mean what the public perception is of what five to four votes mean. These are tough questions that they're dealing with. This is pretty important.
ADAM R. PEARLMAN: Sticking with the courts, but shifting both in the level of the court and from civil to criminal, looking at the traditionally very secret grand jury process, numerous cases, including several of yours, quote the adage that there's a tradition in the United States older than the nation itself, that proceedings before a grand jury should remain secret. Last year was a big deal when Attorney General Barr wrote a letter to Congress citing the Rule of Criminal Procedure Rule 6(e), about grand jury secrecy, for saying why parts of the Mueller Report couldn't even be turned over to Congress. But you withheld, in a case in 2011 called Cutler, that a district court has inherent powers with respect to grand juries, and that special circumstances can justify the release of grand jury materials outside the balance of Rule 6(e). In that case, you ordered President Nixon's grand jury testimony and some other materials to be released. How did you come to that conclusion?
JUDGE ROYCE C. LAMBERTH: Well, I thought that traditionally there is inherent power in the court that should allow historical records to overcome the justification for keeping sealed. It was so unusual to have a President actually testify in a grand jury. Nixon had testified in the grand jury. And it was... Almost all the participants were dead by the time that the case came to me, as chief judge of the court. And it seemed to me that I should have the inherent power to release historical records like that to the public.
Because the public should have the right to see what had happened is the criminal case of Nixon and the Watergate people that were... All of the basic participants were dead by this time, and the public was still very interested in what had happened in Watergate, and whether Nixon was guilty or not guilty and all the issues, many that the public were still very interested in. So it seemed to me that the chief judge of the court overseeing the grand jury should still have the power to do it. And so I relied on that inherent power of the court. And ultimately, I did release the transcript of Nixon's testimony, and it was released in subsequent litigation by others who then sought other material for grand juries.
He had another case that I issued three opinions in 2011 then, on the same day, and in one of those called McKeever.
ADAM R. PEARLMAN: 2017.
JUDGE ROYCE C. LAMBERTH: 2017. Whenever it was. And one of those in McKeever, I did not release something. And he appealed, and ultimately the Court of Appeals found that this special circumstance that I used in the Nixon case was not valid, that courts had no power to ever violate 6(e). And so, although my theory had been adopted by the Second Circuit, the Seventh Circuit, and I think the 11th Circuit had all gone with what I did, the DC circuit had gone contrary to me. And so my own circuit abandoned me and three other circuits affirmed me, but the Supreme Court went the other way. And luckily for me, Justice Briar of all people wrote a separate opinion and... Well, you can quote what Briar said, because I've gone off... I think you have the quote of what Briar said in his separate concurrence.
ADAM R. PEARLMAN: Yeah. He issued a statement regarding denial of cert. I want to quote you first, then I'll quote Briar, and then I think we have to turn it over for a question or two. Because McKeever was decided, I think because we released three of these opinions in the same day, Wes only published one of them. McKeever was not it. Which I'll pontificate, I think McKeever was the most important. Both because he went to the Supreme Court, but also because of the content of the actual case, it was a non-Watergate case. There was a fascinating fact pattern, and you dropped in a footnote, I'll quote.
"It is antithetical to our system of government to say that some class of public records is forever and always off-limits even from consideration for public release, even after the underlying practical needs for secrecy in the records has long since lapsed. In a constitutional democracy that values openness and transparency in government records, no matter how sensitive, it is imperative that the Court look to the underlying purpose of any rule calling for nearly unqualified secrecy of a class of records for perpetuity."
Now, Justice Briar's...
JUDGE ROYCE C. LAMBERTH: [crosstalk 01: 07: 01].
ADAM R. PEARLMAN: It's beautifully written. Justice Briar seems to have agreed that Rule 6(e) deserves another look. He said whether the district court retains authority to release grand jury material outside the situation, specifically enumerated in the rules or in situations like this, is an important question. He says, "It's one that I think the Rules Committee both can and should revisit."
JUDGE ROYCE C. LAMBERTH: Well, as a result of that invitation, I got... My current Chief Judge Beryl Howell and I, have sent a letter to the Rules Committee of the Judicial Conference of the U.S. And they have agreed in April to take up this issue of whether 6(e) should be amended. And we cited Justice Briar as our justification for why we think... And using the language that Adam wrote for me, that I signed, that opinion, we lead with that in the letter that Beryl and I sent to the Rules Committee, saying we should amend 6(e) and [inaudible 01: 08: 12] authorities that I sold to the three circuits, but could not sell to my own circuit.
ADAM R. PEARLMAN: I wasn't going to take credit for it. That was your opinion. But thank you, sir. Well, I know that we've run time. We can talk about this for hours and filibuster, if you will. Judge Lamberth, you've been a fiery presence here as well. And I guess to circle back to another Washington Post article recently talking about the debates in the White House about whether to release visitor logs... A piece in The Post reminded us of a 2016 statement by Josh Earnest, who has been President Obama's press secretary, who posited that there's really no constituency for government transparency except the press. I think we'll leave it to the next panel to debate that proposition. I think we both would take issue with that.
If anybody has questions and if there's time, I'm sure you'll take them, but our hour is running. Thank you, Judge. Thank you everybody for allowing us to be with you today.
MARTHA WAGNER MURPHY: [crosstalk 01: 09: 33]
SPEAKER 3: [inaudible 01: 09: 33] Judge Lamberth... Martha, go ahead please. I think we have a couple of questions for the judge.
ADAM R. PEARLMAN: Okay.
MARTHA WAGNER MURPHY: We've been keeping track of the chat. We have one question. Does the Judge think the 25 year limit is being enforced for records in reference to the (b)(5) exemptions?
JUDGE ROYCE C. LAMBERTH: Clearly not, and it should be. And I have a couple of cases now where I'm trying to force it.
MARTHA WAGNER MURPHY: Thanks. And as a follow up to the question about congressional records, how about Capitol Police? Should they be separate to FOIA?
JUDGE ROYCE C. LAMBERTH: I don't know. I don't think I've ever ruled on the issue and I probably will get it now. I have the first one... I can talk about that. Just before I came on this call, I ordered that the government to show me why I couldn't release a tape that they put in evidence last weekend in my salmon case.
And out of the show calls by Friday, their response was that they can release it, but we don't have a way to put it in the record. And I just signed an order to make it public. And there's a big issue about what Capitol Police tapes have to be under protective order and what can be public. And I better not get into all that, but I've just made some things public that they didn't think could be made public, so I better not get into that because the stuff that I used in evidence to hold the Shaman in jail, I made public and I didn't care what they said.
MARTHA WAGNER MURPHY: Thanks
JUDGE ROYCE C. LAMBERTH: I had evidence in a criminal case, I didn't really care where it came from. They put it in a criminal case and I was going to use it, so I was going to make it public.
MARTHA WAGNER MURPHY: Okay, I think our last question has to do about the consequences for agencies that simply stopped processing FOIA requests and ignore statutory deadlines whether during the pandemic or otherwise.
JUDGE ROYCE C. LAMBERTH: Well, it's a problem because you have to figure out... I mean, some of the agencies where they have the people that would do processing of particular classified FOIA stuff, were only older employees who really were most subjected to the pandemic and most at risk, and did not have vaccine and really were not coming to work at all, and could not work from home with classified information.
So it's hard for me to say that the agency had to make them comfortable in conditions that they were really putting their lives at risk. So, I mean, you really have to go agency by agency and what personnel they have. It's a very intensive inquiry, you certainly can't do it across the board.
But what you can do at that particular agency, it takes that inquiry into how they can cope with the pandemic. It's not an easy answer. I mean, I have cases where the agency convinced me that the people they would need to actually work on it, there was no one that had familiarity or could have familiarity with the documents, that would know about that kind of classified information that can safely actually physically come in and do the work in the classified settings if they need to do it again.
Because they weren't going to take all those classified documents to their house. There was no way it was going to get done. I could understand that. They didn't have to show that I wanted them to say you can just stop.
ADAM R. PEARLMAN: Martha, we started with a quote from the Judge's opinion in Labow a few years ago, and I suppose we can close with it, too, on exactly that point. A judge said at one point, "Courts go to great lengths to protect the rights of FOIA plaintiffs, individual citizens who seek to shine the light of transparency upon the operations of their government."
Sometimes they successfully prompt the revealing of government misconduct. Oftentimes, they endeavored to research a topic of personal interest or fulfill the historical curiosity and may or may not be satisfied by what is released, versus what is withheld.
In the process, the numerable resources are poured into the balancing of interests of justice that apply in these cases...” And I'll wrap up selfishly with a controversial statement that it's certainly true that democracy and accountability are not necessarily efficient, but I'm being marginally sarcastic when I say, show me an efficient government and I'll show you a society that you probably don't want to live in. Take from that what you will, it's a whole other conversation that we'll be happy to come back for. But that's my last word, and thank you all again.
ALINA M. SEMO: All right, terrific. Thank you, Adam. And please, I invite everyone to thank the Judge for his time today. It was a very robust discussion of open government and the judicial landscape. You've given us a lot to think about, I wish we had another hour because I think you would fill it very quickly, judge. So thank you again.
All right, we're going to move to the next step of our program. Judge Lamberth has promised to stay on and observe, so we welcome your continued participation. Next on our program this afternoon, we are honored to share a pre-recorded video from Senator Patrick Leahy.
As many of you know, Senator Leahy is a long-time leader in promoting government transparency and strengthening the Freedom of Information Act. Senator Leahy, has worked with members on both sides of the aisle to enhance and expand Americans access to information about what the government is doing.
He has authored several important pieces of open government legislation and chaired several hearings in the Senate Judiciary Committee. Of particular significance for my office, OGIS, Senator Leahy is the author of the Open Government Act, which in 2007 made the first significant reforms to FOIA more than a decade. The Open Government Act force, which became law in 2007, raided our office OGIS. So without further ado, we look forward to hearing Senator Leahy's remarks today.
SPEAKER 4: And as a quick reminder for the speakers, please mute your phones and your audio. We come through your computer speakers, just a reminder, please turn on your computer speakers.
SENATOR PATRICK LEAHY: I'd like to thank my friend, David Ferriero, he's the Archivist of the United States, and he's hosting this important Sunshine Week event. We both know David, and I, and everybody else that the American people's right to know what their government is doing is in our FOIA, our nation's premier transparency law. That's essential to protect it against the abuses by the powerful.
It's a transparency tool. It empowers the American people with a role in serving as a check against government wrongdoing. It's the defining feature of American democracy. It reflects a simple principle that a government by and for the people cannot be one whose actions are hidden from them.
Now, the COVID-19 pandemic has posed serious and unique challenges to government transparency. We've seen FOIA processing across agencies being dramatically affected. Now I'm going to work with both Democrats, Republicans to fully understand how FOIA compliance has been affected during the pandemic. What lessons have we learned? And what additional resources are required to improve FOIA processing?
But I'm increasingly concerned about another problem. This is one not caused by the pandemic. It's the growing blind spot we have regarding private contractors engaged in government functions. I find a lot of Americans don't realize that nearly 40% of our federal government operations are run by private contractors, and they're not subject to FOIA.
Think what this includes; private prisons, immigrant detention facilities have been right for the abuses and misconduct, and Americans have virtually no way of understanding nearly 40% of the federal government's operations or where their money is going.
So we have to eliminate this artificial blind spot in our transparency laws. We've got to apply FOIA to private contractors when they're doing government work. And that's not a radical idea, states across the country including; Iowa, Texas, Kentucky, South Carolina, and many others already apply their public records laws on private contractors doing government work. Think of it, it's just common sense.
If you're being paid with taxpayer dollars to do government work well, then you ought to be accountable to the taxpayers and the federal government needs to catch up to the states. So I'm going to work hard this Congress and legislation to expand FOIA's application to private contractors. Without it I'm afraid the Americans are going to be faced with an expanding cloud over the federal government operations.
So I want to thank everyone who's attending this conference. Your important efforts ensure that we keep bringing more sunshine into the halls of power. That's something we all want to do.
ALINA M. SEMO: All right. Thanks very much Senator Leahy, for those remarks. Lots to absorb in that segment as well. So I'm very excited to introduce our next set of participants who will be discussing the current transparency landscape, a fitting topic during Sunshine Week.
Full credit for pulling together this distinguished panel goes to our very own Kristen Mitchell, who not only is our compliance team lead for OGIS, but is a former journalist herself who used state and federal records access laws to shine a light on how the government operates.
She has an MA in Journalism and Public Affairs in American University and a BA in English from Mary Washington College. I cannot think of a more appropriate moderator for this panel than Kristen. Kristen today is joined by Michael Bekesha, Alexandra Perloff-Giles, and Katie Townsend.
Michael is a Senior Attorney for Judicial Watch a conservative nonprofit activist group that uses freedom of information laws to obtain records related to activities of government officials. For over 11 years, Michael has litigated over 100 public records cases in both state and federal courts. He has a JD from the University of Missouri, Columbia, School of Law and a BA in Political Science, from Northwestern University.
Alexandra is currently an attorney with Gibson, Dunn & Crutcher Media, Entertainment, and Technology Group. And between 2019 and 2020, she was the first amendment fellow at the New York Times where she was the principal attorney in charge of public records requests. She has a JD from Yale Law School, an MA from the University of Paris-Sorbonne, and a BA in History of Art in Architecture and Government from the Harvard University.
Katie, has served as the Legal Director at the Reporters Committee for Freedom of the Press since 2014, where she leads litigation efforts in public records, court access and legal defense cases. Prior to joining Reporters Committee, Katie like Alexandra, was an attorney at Gibson, Dunn & Crutcher, specializing in media and entertainment litigation. She has a JD from University of Virginia, and a BA in English and a BS in Broadcast Journalism from the University of Florida. Kristen over to you, I leave you in the hands of three attorneys. Good luck.
KIRSTEN B. MITCHELL: Thank you, Alina. And thank you, Alexandra, Katie and Michael for joining us today and thank you to Judge Lamberth and Adam Pearlman, that was a great discussion. And these types of conversations really do contribute to a shared understanding of government transparency.
And as we know so well that just that shared understanding is so important to preventing and resolving dispute. So I'd like to talk about a few things that Judge Lamberth said, but first I'd like to jump into something that Senator Leahy said.
He noted that, "Federal government contractors make up an artificial blind spot in our government transparency laws." Alexandra, Katie, and Michael, do you agree how big of a problem is this? And are there other areas besides private prisons and immigrant detention facilities that this affects?
ALEXANDRA PERLOFF-GILES: Sure. I'm happy to start with that one. Certainly, I think there are many, many agencies including the Department of Defense, Department of Energy, all kinds of agencies use outside contractors.
And the Ninth circuit just went on bonk to reverse an earlier decision regarding the consultant corollary. So that's the question of whether it's a deliberative process privilege under assumption 5, would protect outside consultants. And on bunk court ultimately recognize the consultant corollary joining most other circuits who have considered the question.
The Sixth circuit is now the outlier in questioning whether outside consultants are covered by the privilege, but there was an interesting split in the decisions, including Judge [Patrick J.] Bumatay Trump's appointee and three democratic appointees, all in separate opinions coming out saying, "No, the plain text of the statute says inter and intra agency. It doesn't say anything about outside contractors, independent contractors and so it does allow for an end run around FOIA, given the vast amount of the quantity of government operations that are now outsourced to contractors of different kinds."
KIRSTEN B. MITCHELL: Katie, do you have anything to add to that?
KATIE TOWNSEND: Sure, Kristen. I would say a couple of things I think particularly we've seen this become a problem in the context that we're flagged. So then the private prison context and the immigration detention facility context. So it is a hole in FOIA and I think that we would certainly welcome... On the part of Senator Leahy and his colleagues to plug that hole in conjunction with I think other FOIA reforms that we in the requester community would certainly love to see the Congress tackle, including things like public interest balancing and other recommendations that have been made to this.
KIRSTEN B. MITCHELL: Michael.
MICHAEL BEKESHA: Yeah, I mean from my perspective, I didn't really think about it as being that big of an issue. I guess I haven't done enough FOIA work when it's come to contractors, but I always assumed a lot of those records were public. Dealing with requests I've sent, I've never seemed to have issues getting records that may be in the possession of a contractor.
I think there's a definition of agency record or record at least in FOIA that may encompass those records, and I'm not sure that has been fully litigated. I mean, we always welcome improvements in the legislation, but I guess it wouldn't be on the top of my priority list at this point.
KIRSTEN B. MITCHELL: Right. Okay, great. Thank you. So let's turn to Judge Lamberth's and Adam Pearlman's conversation. I wanted to ask specifically about one thing and then open it up to your reactions. But one of the things that the judge said was he really wants to look at documents in-camera in FOIA litigation.
And I think some people might be surprised by that. I wonder if you could talk about that. Do you think judges should be looking at documents in-camera? And let's go around the same way we did at the beginning. So over to you, Alexandra.
ALEXANDRA PERLOFF-GILES: Sure, yeah. As a FOIA litigant, we absolutely think it's a win to get in-camera review because it's the only check on the otherwise unbridled discretion of the agency. I mean, it might be that their position is legitimate, but we as the requesters simply have no way of knowing.
And so from our point of view, I think in-camera review helps ensure that the system works the way it does. And if it is done enough times to make the agency think that there's a real risk, that their assertions will be questioned and subject to scrutiny, I think that's important.
KIRSTEN B. MITCHELL: Katie.
KATIE TOWNSEND: Yeah, I can just add to that. I mean, I think the FOIA makes in-camera review an available tool at the discretion of the district court judge for a reason, because it's intended to be an aid to the court to exercise the court's no-go review or agency withholding.
So I think we're all mindful that judges have a lot of cases and they see a lot of FOIA cases, and they probably don't require... And I don't think we would take the position that in-camera review is appropriate in every single case. However, in many cases I do think it's appropriate and I think courts would benefit from it.
We tend in our practice to request in-camera review infrequently because we recognize that there's an additional burden on summary judgment. But at the same time, I think there is certainly an appropriate case for it. And I would welcome courts to utilize it more frequently. I think that would be probably beneficial for the entire process, because you may be able to cut out perhaps one round of summary judgment briefing, if you have an isolated set of documents subject to in-camera review.
KIRSTEN B. MITCHELL: Okay. Michael, let me follow up a little bit just on what Alexandra and Katie said. Going back to something Judge Lamberth said, and that is that he feels when he's doing this in-camera review, that he's looking at things in a vacuum. So, I think he said something to the effect of, "Substitute my judgment for the government judgment." And he is just looking at what the government is letting him look at, and he's looking at things in a vacuum. How do you respond to that?
MICHAEL BEKESHA: Yeah, I guess I disagree with the other two panelists and agree with Judge Lamberth. My biggest concern with in-camera review is it really cuts the requester out of the process. I did see a process and I think it was the Eastern District of Pennsylvania where the judge allowed the requester to submit questions that the judge should be thinking about when looking at the records.
But without that, the judge is looking at it in the vacuum and the plaintiff really loses the opportunity to advocate for their position. I still will occasionally... As Katie said, we try to do it infrequently as well.
There are instances, especially when it comes to attorney-client privilege or attorney-work product where we think we're down to one or two records and we'll ask for in-camera review. But the bigger problem I see and one that Katie also flagged was maybe it'll cut out another round of summary judgment briefing.
My biggest frustration is the fact that we have numerous rounds of summary judgment briefing. The government, if they fail to satisfy their burden the first time around, we think that should be it, that the government shouldn't get two, three, four, five bites of the apple, because the live is clear, the government is burdening, if they can't satisfy it, release the records and let's move on. And I think that would be a much better process than numerous summary judgment briefings or in-camera review.
KIRSTEN B. MITCHELL: Okay. Katie and Alexandra, do you want to respond to that at all?
KATIE TOWNSEND: I guess the only thing I'll add is I agree that it only makes sense when you have a narrow set of documents or a single document. So in some ways that is a reminder to the requesters to submit good FOIA requests that are specific, and a judge is never going to order in-camera review if you have a kitchen sink FOIA request for all email communications from 2010 to 2020 or something like that. So if you have a very narrow FOIA request, then I think it's an appropriate tool.
ALEXANDRA PERLOFF-GILES: And I think I would just add to that, that there's always an asymmetry of information of a FOIA litigation. I mean, the requester is always at a disadvantage in terms of what they know, they don't have the records. They don't have the documents themselves. And so we're doing the same thing that the court is doing in terms of relying on the agency declarations, whatever is submitted by the agency.
I think Michael's point that you've done tons of requests out of the process, but to some extent the requester is already pretty limited in terms of what the requester knows about the records anyway, about the contents of the records are limited to what the agency says publicly in our filings. And so in that sense, I do think it can be valuable to have... For purposes of the court to exercise that's a no go review over the withholding to utilize that in-camera review as a tool.
KIRSTEN B. MITCHELL: Great. Thank you. So I wanted to turn and talk a little bit about the new administration. The new administration is just more than seven weeks old, and we have a new Attorney General. And this morning at the Department of Justice, Sunshine Week event, Attorney General Merrick Garland said, "Open government and democratic accountability are at the heart of who we are. And we thank FOIA professionals across the government for keeping the faith."
There was a headline on the Reporters Committee website earlier this month that noted, "A quiet confirmation hearing with some positive engagements on media law." So I'm going to start this question with Katie, and then allow the others to join. Katie, can you tell us a bit more about the positive engagement on media law and for all three of you, what would you like to see come from Merrick Garland as Attorney General?
KATIE TOWNSEND: Sure. I'll just take those both at the same time. I think in 2016, when then Judge Garland was... And Garland actually was nominated for the Supreme Court, the Reporters Committee did what it does for every Supreme Court nominee. Which is a roundup up summary of their decisions that affect first amendment rights and particular media law issues, including FOIA and transparency.
And one of the things that we saw, and I think this was consistent that the Reporters Committee's experience with the litigant quite frankly was, in his record Judge Garland, his decisions were in many cases very indicative of a judge that recognizes and strongly believes in the value of open government and transparency.
I think I tend to think of his record on the DC circuit in terms of transparency as involving really key access to court records decisions including the lights decision. And more recently in 2020, the Leopold against United States decision.
The reporters can do with a party in that case, and it's appraised litigated, maybe a little bit biased, but it's a really groundbreaking case in terms of the Commonwealth right of access and application of the Commonwealth right of access to electronic surveillance materials or Communications Act and penaries track materials. I think that opinion really talks about it in really powerful terms about the importance of transparency, public access and oversight of the judicial process.
On the FOIA fronts, and I'd be interested to hear Michael's view on this, but I think there are a number of the systems that I think of when I think of Judge Garland's record on FOIA issues, like there was ACLU against CIA case back in 2013 or '14, that dealt with Glomar response to records requested related to CIA drone program that reversed the district court affirmance of that Glomar response in an opinion written by Judge Garland.
I also think of the other case. These were the two FOIA cases that Judge Garland actually pointed to in his questionnaire for the Supreme Court in 2016. The cause of action against FTC case, which was the first case to interpret who is a representative of the news media for FOIA [inaudible 01: 37: 04] data.
A really important decision that I think we’re very pro requester because it interpreted I think consistently with the statutory intent represented above the news media to be broad, appropriately broad but broad.
So, I do think that these are issues that based on his judicial record, that these are issues that Judge Garland cares about, the Reporter Committee along with our colleagues at the Knight First Amendment Institute at Columbia University.
Wasting no time, I sent Judge Garland a letter... Or now Attorney General Garland, I have to get used to that. Attorney General Garland a letter just last week, urging him to do what he indicated he was going to do in his confirmation hearings when he mentioned the importance of FOIA and transparency.
Which is to take some steps, I mean, really we pointed to three broad categories of steps we would love to see the Department of Justice take under his leadership, which includes... I got the more stringent standards for DOJ; defending agency positions on litigation particularly in areas with stable harm provision, encouraging additional proactive disclosure, things like visitor logs, agency, head calendar, things that get requested really frequently that agencies can just proactively disclose.
And it's improving other FOIA procedures and processes. We all know that the Department of Justice and OGIS carries a lot of sway in terms of what other agencies are doing. And so doing things like encouraging agencies to work more with OGIS in the mediation process is something that we included as a recommendation. So there are a number of things that we flagged, the things we would love to see the Department of Justice do under Attorney General Garland.
KIRSTEN B. MITCHELL: Great. Alexandra, anything to add?
ALEXANDRA PERLOFF-GILES: I haven't litigated in front of Judge Garland, so I can't speak as well as Katie to this record in that area. More broadly I would say, there are a small class of political requests where you would expect the administration to matter for the outcome or for the position that the agency takes.
So I'll give an example. I just represented Senator Wyden and Representative Malinowski in an amicus brief in a case brought by the Open Society Justice Initiative against the CIA and ODNI, Office of the Director of National Intelligence for the ODNI Khashoggi report. Obviously, that came out outside of the FOIA proceedings, and that is about as political FOIA request that you are going to get.
I think that is the exception, I think the issues that we see most often in FOIA in terms of delay, are not the result of deliberate top-down agency decisions to gum up the process. And so I am perhaps less optimistic that we're going to see dramatic changes as a result of the new administration, whatever their stated positions on transparency issues maybe.
KIRSTEN B. MITCHELL: Right. Okay, before jumping over to Michael, I just wanted to jump in and say that the Khashoggi report is the report on the killing of journalist Khashoggi who was a Washington Post reporter, and the report is the CIA-ODNI report. Just wanted to put some context there for people who aren't as immersed in these issues as we are. So, Michael, what would you like to see with Merrick Garland as Attorney General?
MICHAEL BEKESHA: Yeah, I'm optimistic that the attorney general is going to take transparency in open government seriously. I do have some concerns from his time on bench on the DC circuit.
There was in particular one opinion on deliberate process, he was part of the panel. He didn't offer the opinion, but I guess the good news is it's because of that opinion that the foreseeable harm provision made its way to Congress and passed, but the opinion there wasn't all that favorable to the requests or community, and so I'd like to see... A lot of the things that Katie said I'd like to see from Attorney General Garland.
I think other issues that hopefully he can address and have some guidance for agencies and control over the agencies that he has control over, one issue is text messages. That's an issue that we've really started to see a lot of. Some agencies don't believe text messages or agency records, and so we think Attorney General Garland could make it clear that all communications, regardless if they're emails, letters, text messages, and now because of the pandemic Teams, Webex, Zoom, and any other type of instant messaging platform, that those records are really being captured and preserved in response to Federal Records Act, but also processed and responded to in FOIA.
KIRSTEN B. MITCHELL: Okay, great. Yeah, text messages are a big thing these days. You mentioned foreseeable harm, let's talk about that a little bit. Of course, that's the exercise in which FOIA processes considers the reasonably expected consequences of disclosure in each particular case.
And I believe that something that all three of you have litigated, I'm wondering what's the state of it is these days. And I'm just going to jump this one over to Katie, because I know it was one that she was eager to answer. So over to you, Katie.
KATIE TOWNSEND: I love talking about foreseeable harm. So I think it's important to point out and I know we're going to talk probably about the two most recent Supreme Court decisions involving the construction and interpretation of FOIA exemption. One exemption for Exemption 4 on the artist leader case, and then more recently the U.S. Fish and Wildlife Services case that addresses the scope of Exemption 5.
I think it's important to point out that both of those cases involved pre-2016 amendment FOIA requests, so neither of them dealt with the interplay between the foreseeable harm provision or the additional requirements of the foreseeable harm provision alongside those exemptions.
So I would like pointing that out because I think it's important to note. The foreseeable harm provision was added to the act in 2016, and it places an additional requirement on agencies in terms of their showings to the district court, but I think more critically important is that it should be affecting agency conduct at the processing stage.
So what the foreseeable harm provision does is prohibit actually prohibit agencies from withholding records that fall within the scope of an exemption, unless the agency reasonably foresees that disclosure will harm the interests that it were uninterested as intended to be protected by that exemption.
And we know from a legislative history of the 2016 amendment that Congress particularly had in mind exempted by, and the deliberative process privilege when it was thinking about, and then in the act of the foreseeable harm provision. There are a number of district court decisions in DDC-
KATIE TOWNSEND: I think there are a number of District Court decisions in DDC, some in SDNY as well, and I think do a pretty good job actually of interpreting and applying the foreseeable harm provision. There was a case, I think 2018 or 2019, Machado Amadis. The Machado Amadis decision which is in the D.C. Circuit, which address foreseeable harm in the context of Exemption 5 with respect to a narrow set of documents. There's another case pending before the D.C. Circuit now that I argued on behalf of the Reporters' Committee and the Associated Press just a month ago or so that deals pretty squarely with the application of foreseeable harm to different types of documents that were withheld related to impersonation of members of the news media under Exemption 5 or pursuant to Exemption 5.
So, I think we'll get more guidance. That's a very long-winded way of saying that there are some cases that have been percolating and developments in cases. At the District Court level we're starting to see those, at the Appellate Court level. And I think we should, or I anticipate we'll be getting some additional guidance, both from the DC Circuit and most likely from the second circuit as well since there are some decisions coming out of the District Courts in New York as to how that provision should be interpreted and applied.
KIRSTEN B. MITCHELL: Michael, what are you seeing with regard to foreseeable harm?
MICHAEL BEKESHA: I don't have much to add to what Katie said. I think we've seen some good opinions out of the District Court, and the D.C. Circuit hasn't really addressed the issue, and they should be addressing it soon enough in Katie's case. And Judicial Watch has a case also where briefing recently began. So, I think it's stay tuned, we'll have a lot more to talk about next year on the topic.
KIRSTEN B. MITCHELL: Okay. Well, speaking about court rulings, let's talk Supreme Court for a bit. We've had back-to-back [inaudible 01: 47: 05] cases of the U.S. Supreme Court earlier this month. You have Fish and Wildlife Service versus the Sierra Club. The High Court ruled that Exemption 5, deliberative process privilege protects from disclosure, in-house drafts, biological opinions that are both pre-decisional and deliberative, even if the drafts reflect the agency's last views about the proposal. I'm wondering, how do you see this ruling affecting agency disclosure? And in fairness, this ruling just came out, what, a week and a half ago, maybe not even ... So, I may be asking this question prematurely, but I'm asking it nonetheless. Alexandra?
ALEXANDRA PERLOFF-GILES: I should say this was a case that was before my judge when I was clerking. So, I'm probably somewhat limited in what I should say about it. But I think it's a fairly idiosyncratic case. It's interesting to me that the Supreme Court took it. I don't think it gives us a lot of guidance on the issues that more frequently plague requesters when it comes to Exemption 5. In other words, everyone agrees that the standard is pre-decisional and deliberative, there's no dispute about that. And in that case it was this peculiar posture of where one agency's job ends and the other begins, what is final.
So, I think in some ways Argus Leader Media, which we can get to, has more broad implications, and we've had time to see that decision bear out in terms of what it has done to Exemption 4. But I think it remains to be seen what impacts the Fish and Wildlife Service's case will have on Exemption 5, but I don't see it as game-changing. I don't know if others disagree.
KIRSTEN B. MITCHELL: Yeah. You've noted that it was idiosyncratic. And I think during oral arguments there was some chatter going on whether the case was really a FOIA case or whether it was an Endangered Species Act case because it dealt with records that were required as part of administration of the Endangered Species Act. Katie, I think I cut you off. I'm sorry.
KATIE TOWNSEND: No, I think I accidentally cut you off. I was just going to say that I agree, actually. I think it doesn't seem to be a huge departure from the way the D.C. Circuit case law was going. It has been going for quite some time in terms of the interpretation of Exemption 5 and the scope of the deliberative process privilege. So, I agree completely with Lexi that the Argus Leader decision is far more impactful in terms of its practical ramifications on requesters. And again, I'll just reiterate that both of them were pre foreseeable harm, and I think the foreseeable harm provision has the most work to do in Exemption 5. So, even how impactful U.S. Fish and Wildlife Services need interpretation of the scope of the exemption, how that will play out post foreseeable harm, I think, it may end up not being particularly practically impactful for practitioners or [inaudible 01: 50: 40] .
KIRSTEN B. MITCHELL: Well, let's talk about exemption for the Food Marketing Institute versus Argus Leader which the Supreme Court in 2019 redefined the word 'confidential' in FOIAs Exemption 4, which, as you know, protect, "Trade secrets and commercial or financial information obtained from a wide range of entities that is privileged and confidential." And the Supreme Court ruled that confidential means anything "Customarily and actually treated as private by its owner." And there's a question that came up during oral arguments in that case that I'm going to ask the three of you. And that is, what is to stop entities from customarily and actually treating as private everything that's submitted to the government?
ALEXANDRA PERLOFF-GILES: Anyone who's worked on this regulatory matter in private practice responding to an inquiry from a state attorney general or something knows that companies do treat everything as private. So, that doesn't entirely answer the question, and that's where I think to go to Katie's point. In many ways, if we come back to what the foreseeable harm standard means, and we asked what is the interest that is being protected by the exemption, we come back to the interest is in some competitive harm.
So, I think in a lot of ways, and obviously this remains to be tested, but the impact of the Supreme Court's decision should be very minimal and we should end up back at something that looks like the competitive harm standard that we had before. But I think this comes up a lot in a variety of cases. And the real question is, what is the government doing with these records? If it's relying on them to regulate in some way then it doesn't matter what the position of the company is in a certain way whether ... It becomes part of the government regulatory process.
KIRSTEN B. MITCHELL: Michael?
MICHAEL BEKESHA: Yeah. I think it's just a big concern, and I think it's what the court's question was about. But if anybody has ever seen ... Companies like to put on ... We'll use emails as an example. Companies, they usually automatically stamp all their emails 'confidential' or 'privileged'. Most people know that just because you have a stamp on it, it doesn't really mean anything. Now that may mean something, and there will be problems when it comes to transparency. But I think as Alexandra said, we have to wait and see what the interplay is between the decision and how foreseeable harm the new provision, how the courts look at it and just go from there. I think it's too early to tell.
KIRSTEN B. MITCHELL: Okay. Katie, did you have anything you'd like to add?
KATIE TOWNSEND: No. [inaudible 01: 54: 00] somebody filed an amicus brief in the Argus Leader case effectively making this point that that was a pre-2016 amendment case that foreseeable harm basically does the work of the National Park's task, which is what the D.C. Circuit had been applying for quite some time, which is breeding in this requirement of they're showing a competitive harm and basically saying that maybe the court should dismiss and [inaudible 01: 54: 31], don't take this case. It didn't quite work out that way. It would have been nice maybe if it did. I do think as a practical matter we're seeing what I would say a problematic exemption for cases. There's a case pending in the 9th Circuit. It was brought by Center IR ... the request was made by Center For Investigative Reporting, it was litigated by the Department of Labor.
Right after the court issued a favorable opinion on the exemption for withholdings in that case, one of the part of the companies whose information was reportedly at issue intervened for purposes of appealing the decision. The Department of Labor wasn't going to. And I do question whether pre Argus Leader that would have been a step that they would have taken. I think it has broadened the scope of the application of the initial exemption, which is the question that courts are looking at first. So, I agree completely with Lexi and Michael that foreseeable harm, it obviously applies to Exemption 4. I think how that's going to play out, we'll just have to wait and see.
KIRSTEN B. MITCHELL: Okay, let's jump to the COVID-19 pandemic. Can you all talk a bit, and not just through the FOIA lens, but broadening of how the COVID-19 pandemic has affected government transparency?
MICHAEL BEKESHA: Yeah, I can start with that. On the plus side you've had a lot more, especially at local levels, public meetings over Zoom, which means they're a lot more accessible to the public. People are able to be eating dinner at home, helping their kids with homework and able to check out what's going on in a public meeting and even participate in some circumstances. So, I think part of the pandemic has been helpful. Same with some courts around the country, now their proceedings are more accessible online than they were before. So, from that perspective, I think the pandemic has helped further or advance use of technology to make government more available to people. I'd say that's the plus.
The negative is, FOIA processing is at a snail's pace, and it probably was beforehand, but where I would have 500 pages reviewed by an agency every month, I now have 300 pages being reviewed every month. And if you have a couple of 1000 pages that need to be processed, these cases are going to go on for two, three, four, five years. And by the time you get to the end of it you're going to forget what you even asked for and why you were interested in it. So, I think that's problematic, that being at the Federal level.
At the local level you had places like D.C. where they essentially suspended the time limits that the agencies had to respond to FOIA requests, which means you couldn't sue over the requests, which means, practically speaking, FOIA was shut down. Montgomery County, Maryland had the same, and other counties around the country also. So, I think the pandemic has been problematic on a lot of reasons, but just talking about open government, when it's come to FOIA, it's really slowed down and made records less available to the public.
KIRSTEN B. MITCHELL: So, it sounds like good on the open meetings front, but not so good on the open records front.
MICHAEL BEKESHA: Yeah.
KIRSTEN B. MITCHELL: Katie, Alexandra, what are you all seeing?
KATIE TOWNSEND: Yeah, I think ...
ALEXANDRA PERLOFF-GILES: Go ahead, Katie. Go ahead.
KATIE TOWNSEND: Oh, okay. I'll go. I get asked this question a lot, and my response is, "How has the pandemic not affected access and transparency?" I think it's really affected every aspect of it. And I appreciate Michael pointing out that it's a bit of a mixed bag, actually. There are some positives. I think the live streaming of appellate proceedings, not just live streamed audio at the Supreme Court but live streamed audio among the Federal Courts of Appeals consistently. We're seeing telephonic access to Federal District Court proceedings in several cases, which I will say as a member of the public and as an attorney, it's great for me to be able to listen to a hearing that's going on in, I don't know, the Southern District of California, the Central District of California, which I would have never been able to hear before.
So, I think those are all good, positive things for the public. Even on the court access side there are some areas where the pandemic has been pretty devastating though for public access I would say, particularly amongst the trial courts, particularly in the criminal context, it's made it very difficult for reporters to report on issues arising out of requests to be let out of prison while their sentences are pending because of COVID. So, a lot of that has created some problems. I would say on the open meeting side, again, it's a bit of a mixed bag. You do have some local agencies that are using Zoom really effectively and actually broadening participation. You have other communities that don't have those resources, that don't even have broadband in some cases. So, it's a real mixed bag.
I would say on the FOIA front, there are those shining lights, perhaps. I think in terms of FOIA and state public records it's been difficult. I think FOIA, there was already a backlog. I think if you look back at the backlog from the 2016 shutdown, which was about a month long [inaudible 02: 00: 36] the backlog that we're still seeing the impacts from currently. So, you're think about FOIA processing being delayed. In some cases there are some agencies that are still operating, or we'll say that they're operating their FOIA processing at 50% of what they were a year ago. That's been a year. So, you think of the delays and the backlog that's just being built up, it's really terrifying to think about.
I will note that as Judge Lambert said during his talk with Adam that it is agency by agency. So, we certainly saw as litigants there were agencies that operated on classified servers that had to shut down their FOIA processing. That wasn't true with respect to all agencies. So, it isn't across the board, but we've certainly seen things slow down, I would say, pretty significantly everywhere. And that was also, as Michael pointed out that that's the case at the state public records level as well. It's not just municipalities and states that through emergency actions stopped FOIA processing or stopped compliance with the act which we have seen. But it's also just across the board. The same issues might be at the Federal level, people aren't going into the office, they don't have access to the records, and it's really slowed things down.
KIRSTEN B. MITCHELL: Alexandra?
ALEXANDRA PERLOFF-GILES: I agree with everything they've both said. I don't have a lot to add. I think what Katie said at the very end about classified records is where I've seen the biggest impact at the Federal level, so National Security related cases, even if they're already in litigation and there have been commitments to produce a certain amount, if the AUSA says they can't go into the secured facility to review the documents then you're at an impasse. And that might be one thing if COVID lasted three months, but it's now a year later, and there has to be some other measure in place.
KIRSTEN B. MITCHELL: Okay. So, I think we're going to turn it over to questions soon, but I wanted to ask you just one more question before Martha pops on with questions. And that is that various studies show both an increase in the number of FOIA cases filed in the last several years, and also increased numbers of FOIA requests from businesses and first parties seeking their own records, so people seeking records about themselves. That brings me to the question, is FOIA becoming less of a disclosure statute? And we'll go Katie, Michael, Alexandra.
KATIE TOWNSEND: I don't think so. We certainly see an uptick, and I think it's been pretty steady and consistent, a sharp uptick in the number of FOIA requests and in FOIA litigation under the Obama Administration. That went up during the Trump Administration. I suspect that will go up for the Biden Administration. I think it's a trend that we will see increase. I don't necessarily think that makes the statute or the act used by commercial requesters, for example, I don't think that that makes it any less of a tool for public access, so public transparency. I know my constituency as a lawyer or the news director for the Reporters' Committee, as news organizations and journalists, and we've only seen an increase in the interest of reporters in using the act.
And I'd love to hear Lexi's thoughts on that, more from her time with the New York Times, but I think that they're really fantastic. And again, I might be biased, but I think there's really fantastic reporting that is coming, notwithstanding that the delays and the other problems that we see with just the processing and the procedures and the delay and the backlog and all of that, notwithstanding all of that there are reporters and newsrooms out there that use FOIA incredibly effectively and do really excellent reporting based on that. So, I think that it is still and will remain still a vital tool really for journalists moving forward.
I think that with this influx of requests, I think to keep it effective, make sure that it is effective and it's serving its goal that the fact that there's an increase in commercial requesters, I think there are other things that can be done with respect to processing, including increased resources towards processing that can help make the system more effective and more efficient, but I don't think that means that just because others are using the act, not just journalists, not just members of the public, that it's any less of an important tool.
KIRSTEN B. MITCHELL: Mm-hmm (affirmative).
MICHAEL BEKESHA: Yeah. I think FOIA is a great tool, but it's an imperfect tool. I think we've done a lot of patchwork over the past 30, 40 years to improve the statute, but no one's really taken a step back to look at the statute as a whole and see if it's still working. So, I always encourage members of Congress and their staff to take a step back and figure out, if we rewrote FOIA today could we make it so much better, make it more of a disclosure statue than withholding statue? I'm not quite sure there's an appetite for that in the request of community as a whole.
There's definitely not an appetite for that within Congress, but I think as Katie said, it's a great tool, it's successful at times. I just think it could be so much more with some revisions if not a full rewriting, but also as Katie said, additional resources, not only human capital but also the use of technology could have the agencies really be able to respond more frequently and more quickly. The other thing I'll just say is, there are a lot more records being created today than were being created when FOIA passed, even 10 years ago. As I said, with email, text messages, all other types of electronic communications, you just have tons of records being created.
New agencies aren't equipped to handle them. And I think a lot of the delays you're seeing is because you don't just have one letter that's being sent per day or a 100 letters being sent per day, you're having 1000s of emails being sent today, sent each day, and the agency needs to figure out how to deal with it. And Congress hasn't given them the resources needed to deal with it.
ALEXANDRA PERLOFF-GILES: Yeah, I'll-
KIRSTEN B. MITCHELL: Alexandra?
ALEXANDRA PERLOFF-GILES: ... I certainly agree that it's a technology problem, that the number of records is vast, but also the capacity to search should be also dramatically more efficient. I think the question you raised about all these other people using FOIA other than journalists, is that a problem, and I think you could imagine some solution shy of reforming the statute that would help with the massive delay that that causes. So, Margaret Quaker Denver has written a lot about ... She wrote an article called FOIA, Inc. about the problem of commercial requesters, and then she followed that up with an article, First Person FOIA, about the problem of first person requesters and their different agencies for which those are different problems.
So, regulatory agencies like FDA have the commercial requester problem, say immigration agencies like CVP have the first person employee problem. And you could imagine, for instance, the VIP access for news media requesters, we already have the (c) Waiver system, but a way to get a human being on the phone to address something, to move it through more quickly to privilege what the statute is designed to do in terms of informing the public without necessarily creating bright line rules about who gets to be a requester or not.
KIRSTEN B. MITCHELL: Well, that's certainly an interesting idea. So, we have one question via Webex that I'd like to ask, and you've probably seen this in the chat, but it's, "Does foreseeable harm play against the chilling effect in any way for open and candid discussions?"
ALEXANDRA PERLOFF-GILES: That's the [inaudible 02: 09: 19] of the argument every time, that it inhibits the candor of agency discussions if all of this comes out. I think it's a real question for the requester communities to talk about, what the foreseeable harm standard means for Exemption 4. We think it's easier how you show what exactly is the showings that we expect of agencies for them to meet their burden of showing that disclosure would cause foreseeable harm I think is a harder question. And when we litigate we say, "All of these assertions are speculative," and so forth, but I think it's hard to articulate what exactly the sufficient showing is on the part of the agency that that disclosure would indeed harm the candor of deliberations, which is a valid interest protected by the assumption.
MICHAEL BEKESHA: I would just say on that, deliberate process privilege in the civil discovery context, at least in the D.C. Circuit, is different than it is in the FOIA context, and it's not supposed to be that way. So, courts know how to handle this exact issue, and they do it in a civil discovery context. And I would just argue that we have to get back to that when it comes to FOIA. I think the 9th Circuit still treats deliberate process privilege the same where you really look at the foreseeable harm of the decision making process, the particular decision being made, and not this general idea that any decision-making process in the future, it may be detrimental to release the records because it's hard to figure out what it means to be acting in a fishbowl as the agencies like to talk about.
I just brought a case onto appeal that I'm concerned final drafts of a statement by former acting attorney general, Sally Yates. And the question is, if her draft statement would be made public, does that mean future attorney generals would be afraid to have opinions? That doesn't really seem to make sense, but it may make sense when it comes to particular decisions, especially for lower-level employees. But once you're a political appointee, it doesn't make as much sense. So, again, I think the courts know how to deal with this issue. We just need to get back to what the exemption was supposed to be.
KIRSTEN B. MITCHELL: Mm-hmm (affirmative). Okay. Katie, do you have anything to add?
KATIE TOWNSEND: Yeah. I agree with a lot of what Michael said. I think that the common law, the deliberative process privilege is just what FOIA's supposed to incorporate. It's been interpreted quite broadly in the FOIA context and really gotten away from even some initial, if you look back older D.C. Circuit decisions that are intended to address the scope of the deliberative process privilege like coastal states, for example, some of the factors the courts looked at there, is it a communication from someone who's an inferior position to someone in a superior position?
Those are things that can also go, and it can be considered when you're looking at the foreseeable harm provision, you're trying to determine whether or not it's the harm that the agency is asserting is going to be full if disclosure is made is a harm to the decision-making process because disclosure of this document is going to chill candid communications like this in the future. I think these are all these factual factors that go into play, whether or not that harm is reasonable, whether it's reasonable for the agency to proceed that harm.
So, I agree that there is an aspect of a foreseeable harm provision in the deliberative process context which is about bringing it back in line to what it was really intended to be to begin with and has really just been expanded and expanded and expanded in the FOIA context, I would say, over the years.
KIRSTEN B. MITCHELL: Great. Thank you. So, we do have another question. Someone writes, "I'd be interested if the current panel has any suggestions on how to solve the processing delay issues for classified records. Do they seem to judicial orders forcing staff to come in during the pandemic? Do they have ideas?"
KATIE TOWNSEND: Well, I just wanted to clarify one thing, which is to say that just because an agency does FOIA processing or review on a classified server does not necessarily mean that those documents are classified. And I think State Department is a good example where they effectively shut down their FOIA processing regardless of the nature of the request, in part because they were doing everything on classified servers. And that I think is a ... I think they're moving away from that actually. And I think that that's one way you can help address this problem of ensuring that you're not requiring everything to be done in classified servers if what's being requested isn't. Those types of records don't need to be stored in that way, for example. That's one way I would think to address that potential problem.
ALEXANDRA PERLOFF-GILES: Yeah. I'll just say I think a judicial order is a last resort and you hope that you can work something out with the attorneys on the other side, and it might not be the AUSA assigned to the case but a colleague who can go in and do some of the review. In the one case that I'm thinking of where this was really an issue, I gather very few people are allowed at a time in the facility anyway. So, with what we know now about COVID, I think the risks are somewhat minimal.
And there was this funny back and forth where I was told, "You don't actually expect someone to go in." And I said, "Well, you do receive your paper every day, right?" Someone is going into the printing press. Wouldn't we consider it an essential operation. It manages to happen. But I would hope that we don't need to get to the judicial order part in most cases.
KIRSTEN B. MITCHELL: Michael, did you have anything to add?
MICHAEL BEKESHA: I don't have anything to add on that.
KIRSTEN B. MITCHELL: Okay, great. Well, thank you. So, I don't believe we have any other questions. Martha, do we have any others?
MICHAEL BEKESHA: Can I add one thing, Christian?
KIRSTEN B. MITCHELL: Of course.
MICHAEL BEKESHA: I enjoyed this session. It's always good to hear practitioners talk about the real nitty gritty. So, that was a very nice discussion. I enjoyed all of that.
KIRSTEN B. MITCHELL: Oh, thank you so much. So [crosstalk 02: 16: 28].
MARTHA WAGNER MURPHY: No other questions.
KIRSTEN B. MITCHELL: No other questions?
MARTHA WAGNER MURPHY: Yep.
KIRSTEN B. MITCHELL: Okay. Thank you, Martha. Oh, there is one other. So, I think I will ask this, and I'll ask it of Alexandra, and then I will turn it over to Alina for closing remarks. So, this question is, "Then, also, does the contract corollary [inaudible 02: 16: 59] against the foreseeable harm? And I'm asking that of you because-
ALEXANDRA PERLOFF-GILES: Yeah. I think this is a reference to the consultant corollary, and I don't think they're at odds with one another. I think one's a question of what is included in inter and intra agency, and then one's the question of, even if you were a fall within the exception, then have you also shown foreseeable harm that would result from disclosure. So, I think there's two stages of the inquiry.
KIRSTEN B. MITCHELL: Mm-hmm (affirmative). And not in conflict. Right. Okay. Alina, I'm going to send it over to you, but I would like to thank Alexandra, Katie and Michael so much for this. I'm sorry we are not on the stage in the Gallon Theater in-person, but perhaps the next time we will all be together. So, over to you Alina.
ALINA M. SEMO: Yes, totally agree Christian. I hope we can all be together next year. I hope everyone can join us in thanking our panel participants. It was a great discussion. I think we could also have gone another hour. So, maybe next year we'll schedule it for a bit longer. David, do you want to say a few parting remarks before we close up?
DAVID S. FERRIERO: I just want to add my thanks to the panel and to my favorite judge in the D.C. District Court, An Adam. We're looking forward to being able to launch that biography here at the national archives, Adam, so get cracking. Thanks to all of you who have tuned in, and I hope you have learned as much as I have and enjoyed the conversation. Stay safe and hope to see you in-person, I hope, next year.
KIRSTEN B. MITCHELL: Thanks David. I really appreciate it. I just want to thank everyone who participated in today's event. Thanks for our virtual viewing audience for joining us for our celebration in Sunshine Week at the National Archives. I would like to just give a special thanks to our amazing OJIS staff who was instrumental in planning and executing this great afternoon. Special thanks also to the special assistant to the archivist, Maureen MacDonald, our deputy director of congressional affairs, Sean Wharton, and to our Webex special events and AD staff, which is really Jamie Atkinson, for ensuring that everything ran smoothly.
If you'd like to learn more about the work that we do at OJIS, please visit our website, archives.gov/ogis. Read our blog, The FOIA Ombudsman, and follow us on our Twitter handle, @foia_ombud. Thank you again to everyone for joining us for our Sunshine Week celebration, and we hope you will join us again next year. Stay safe. Thanks everyone. Bye-bye
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