OBTAINING ACCESS TO GOVERNMENT RECORDS SINCE 1972:
Highlights of Advocacy Efforts Against Government Secrecy
Public Citizen Litigation Group is a ten-lawyer public interest law firm co-founded by Ralph Nader and Alan Morrison in 1972. It is the litigation arm of Public Citizen, a non-profit consumer advocacy organization with almost 100,000 members. From its founding, Public Citizen Litigation Group has focused a significant portion of its efforts on fighting government secrecy.
The Freedom of Information Clearinghouse is a project of Ralph Nader's Center for Study of Responsive Law. Directed by a Public Citizen Litigation Group lawyer and housed at the Litigation Group offices, the Clearinghouse has provided technical and legal assistance since 1972 to individuals, public interest groups, and the media who seek access to information held by government agencies.
In the last twenty-five years, Public Citizen Litigation Group and the Freedom of Information Clearinghouse have sought to enhance public access to government-held information under the Freedom of Information Act ("FOIA") and other open government laws, through litigation, the dissemination of information designed to educate and assist the public in obtaining information, and congressional and administrative advocacy. This report briefly describes some of these efforts.
Since 1972, Litigation Group lawyers have litigated more cases under the FOIA than any other organization. Having represented FOIA requesters in approximately 300 lawsuits challenging government secrecy, the following is just a small sampling of some of the lawsuits:
Litigating Cutting-Edge Records Issues
In recent years, Litigation Group lawyers have devoted significant resources to litigating issues surrounding preservation of and access to electronic records. In the pathbreaking case Armstrong v. Executive Office of the President Litigation Group lawyers succeeded in establishing that electronic records generated by the White House and the rest of the Executive Branch are subject to federal open records laws. At the end of both the Reagan and Bush administrations, the administrations had claimed that they were simply entitled to press the "delete" button and erase all of the electronic records created and stored by the White House during each president's tenure. These claims were rejected by the D.C. Circuit.
As a result of this litigation, the government released over 3,000 e-mail records used by the White House and the National Security Council during the Reagan Administration. After being recovered from backup tapes preserved as a result of our earlier victories, the records were processed under FOIA. We believe that this is the first time that e-mail records have been recovered from electronic storage devices to respond to a FOIA request. The e-mail records released by the government contained many new insights concerning the foreign policy activities and internal politics of the Reagan Administration. One of our clients in this case, the National Security Archive, used the messages secured in this litigation to compile a book on the importance of electronic mail as a record of government decision making and policy, entitled White House e-mail (November 1995).
The Armstrong litigation led to Public Citizen v. Carlin, another successful effort to reform the government's policy concerning electronic records. In 1995, the National Archives adopted new regulations that explicitly direct all federal agencies to preserve and maintain electronic records as part of their records management program. However, the Archivist also issued rules authorizing all federal agencies to destroy the electronic versions of word processing, electronic mail and other records without any review of whether the electronic records had sufficient value to warrant their retention. Public Citizen, joined by organizations of historians, librarians and individual researchers, challenged these rules, charging that the Archivist was ignoring his responsibility to ensure that historically valuable electronic records were preserved. The court agreed, and struck down the rules in a decision that emphasized the unique value of electronic records.
Securing the Disclosure of Critical Records
Our FOIA litigation docket has not been limited to electronic records issues. In other recent cases, we have successfully obtained access to records of significant public interest, including the disclosure of some 2000 pages of Lt. Col. Oliver North's notebooks (National Security Archive v. National Archives and Records Administration), the disclosure of the report relied on by the Attorney General to exclude Kurt Waldheim from the United States (Mapother v. Department of Justice), and the disclosure of all-but-one-paragraph of the government's secret brief filed before the Supreme Court in the "Pentagon Papers" case (Sims v. Department of Justice).
Many of our cases involve securing the public disclosure of information in the government's files on health risks, safety issues, and financial problems for public interest organizations that petition the government or seek to educate the public on these matters. For example, on behalf of the Public Citizen Health Research Group we have successfully challenged the government's decision to withhold documents concerning the hazards associated with drugs and medical devices. Recent litigation has secured the disclosure of information on the risks associated with silicone breast implants (Teich v. Food and Drug Administration), the safety and effectiveness data on drugs that have been abandoned because they posed unreasonable hazards, and protocols used by drug manufacturers and the Food and Drug Administration to evaluate the safety of questionable drugs that are now on the market (Public Citizen Health Research Group v. FDA).
Our litigation on behalf of organizations concerned with safety and public accountability has also forced the government to reverse its decision to withhold the identity of the manufacturers whose air bags performed poorly in government tests (Center for Auto Safety v. National Highway Transportation Safety Administration), and has compelled financial regulators to make public government reports showing that private pension plans are under funded and may not be able to meet their obligations to employees (Consumers Digest v. Pension Guarantee Benefit Corp.).
We have also represented individuals, like Jack Greenberg and Taylor Branch, who sought access to records for books they were writing. Jack Greenberg, formerly the legal director of the NAACP Legal Defense and Education Fund and currently a professor at Columbia University Law School, was writing a history of the NAACP Legal Defense and Education Fund and sought access to Justice Department records relating to his work with the Fund. When the FBI refused to release much of the material, we filed suit, Greenberg v. FBI, which resulted in the release of the lion's share of the documents in the FBI's possession -- including documents that revealed, for the first time, that Greenberg had been the subject of death threats twice during his tenure as director of the Fund. Similarly, we helped Mr. Branch gain access to many of the records the FBI had compiled on civil rights leader Martin Luther King, which Branch used in his Pulitzer Prize winning book, Parting the Waters.
The Early Years
One of our most important procedural victories and one of our earliest cases was Vaughn v. Rosen, which requires an agency to prepare a detailed index including its justification for non-disclosure whenever it seeks to withhold records. This decision helps balance the scales and makes it easier for requesters to litigate cases, because it limits the government's tactical advantage of knowing what information it is withholding.
Other procedural victories include Phillippi v. CIA, which established the foundation which must be laid before the court can inspect in camera submissions; Fitzgibbon v. CIA, which obtained judicial review of an agency decision not to waive search and copying fees; and Holly v. Acree, which was the first case to make a finding pursuant to the sanctions provision of the FOIA, 5 U.S.C. § 552(a)(4)(F), triggering a Civil Service Commission investigation of possible arbitrary or capricious withholding of the documents.
On more substantive aspects regarding the scope of the FOIA's exemptions, our lawsuits include Public Citizen Health Research Group v. Food and Drug Administration, which adopted a narrow definition of the term "trade secret" to be used in Exemption 4 cases; Crooker v. Bureau of Alcohol, Tobacco and Firearms, which established the legal standard for withholding internal agency manuals under exemption 2; and Greentree v. Drug Enforcement Administration, the first definitive ruling on the FOIA's interaction with the Privacy Act, holding that the Privacy Act does not qualify as an Exemption 3 statute under the FOIA, and that whenever requests are made for personal records, disclosure must be made to the fullest extent possible under both statutes.
Other lawsuits have secured the release of thousands of records of interest to the public, including Green v. Department of Commerce, which obtained access to some 60,000 boycott compliance reports filed by companies regarding compliance with Arab requests to boycott Israeli products; Stern v. Small Business Administration, which was brought on behalf of Carl Stern, an NBC News reporter, and successfully obtained a copy of the findings of a civil rights compliance investigation showing that high level SBA officials had discriminated against applicants for federal assistance on the basis of race, sex, and marital status; Andres v. Central Intelligence Agency, brought on behalf of the Center for National Security Studies, which secured deletions made by the CIA from the book, The CIA and the Cult of Intelligence, published in 1974 by Victor Marchetti and John Marks; and California Sunshine Alliance v. Nuclear Regulatory Commission, which obtained access to documents concerning the transportation of nuclear wastes through the country, including the actual routes used, on behalf of three environmental groups.
Before the U.S. Supreme Court
Litigation Group lawyers have represented FOIA requesters before the Supreme Court and participated as amicus in other Supreme Court FOIA cases.
In Department of Justice v. Julian, we convinced the Supreme Court that presentence reports should be available to the individuals who are the subject of those reports. The government had been claiming a privacy-based privilege against the subject of the records.
In Administrator, Federal Aviation Administration v. Robertson, we argued that the Federal Aviation Act was not an exemption 3 statute because it gave the Administrator considerable discretion to withhold records, contrary to the intent of FOIA. Although the Supreme Court upheld the broad grant of discretion to the Administrator, we successfully lobbied Congress to overrule this case with the 1976 amendment to exemption 3.
In GTE Sylvania, Inc. v. Consumers Union, we represented Consumers Union, which sought copies of reports on television accidents submitted to the Consumer Product Safety Commission. The television manufacturers obtained an injunction prohibiting the CPSC from disclosing the information and the Supreme Court held that agencies have no discretion to release material if a court has ordered withholding.
In Sims v. CIA, we sought disclosure of the names of the principal researchers and institutions involved in the CIA's MK-ULTRA program, which involved the testing of drugs and mind-altering techniques on witting and unwitting subjects. We won a court of appeals' decision ordering the CIA to disclose many of the researchers' names, but the Supreme Court reversed, holding that § 102(d)(3) of the National Security Act of 1947 is an exemption 3 statute that gives the Director of Central Intelligence broad authority to protect all sources of intelligence information from disclosure.
We have also submitted amicus briefs supporting FOIA requesters in NLRB v. Sears, Roebuck and Co., where the Supreme Court adopted our argument distinguishing pre- and post-decisional documents under exemption 5; in Reporters Committee for Freedom of the Press v. Department of Justice; in Ray v. Department of Justice; and in John Doe Agency v. John Doe Corp..
PUBLIC EDUCATION AND ADVOCACY
The Litigation Group and Clearinghouse have also been visible on Capitol Hill, championing the cause of open government. In 1974, Litigation Group lawyers provided substantial technical assistance in the drafting of the amendments to FOIA, and since then, have commented on the various legislative proposals to amend FOIA as well as developing comprehensive proposals to strengthen the FOIA and make it easier for citizens to use.
The Clearinghouse has assisted tens of thousands of people in their requests for access to records or meetings at the state and federal level and provided guidance to prose litigants and attorneys who are unfamiliar with FOIA litigation. The Clearinghouse's "Freedom of Information Act User's Guide" has been widely distributed nationwide. The Clearinghouse has also made this Guide and other resources for locating and obtaining government records available electronically over the Internet (http://www.citizen.org/public_citizen/litigation/foic/foic.html). The Clearinghouse Director and other Litigation Group lawyers have led several workshops at the ACLU's annual conference on litigating open government cases, have contributed to chapters for every edition of Litigation Under the Federal Open Government Laws, and have participated in numerous training seminars for the American Society of Access Professionals.
In more recent years, the Clearinghouse has also responded to requests for assistance from around the world and has assisted foreign individuals or organizations which seek to promote access to information in their countries. The Clearinghouse Director has met with government leaders, academics, journalists and access advocates from South Africa, Lithuania, Romania, Columbia, Chile, Peru, China, Japan, Cambodia, the Ukraine, Georgia, Egypt, the European Community, and New Zealand, in an effort to promote global access to government information.