EPIC Wins Big Freedom of Information Victory

epic1c.jpgDavid Sobel and Marcia Hofmann of the Electronic Privacy Information Center (EPIC) just scored a major victory for freedom of information law. After the New York Times broke the story about the warrantless NSA surveillance program, EPIC filed Freedom of Information Act (FOIA) requests for documents pertaining to the program. Under FOIA, federal agencies are required to provide documents to anybody who requests them. 5 U.S.C. § 522(a). The purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 352, 361 (1976).

The government contended that it could wait indefinitely before producing documents despite the fact that it was required to process the request “as soon as practicable.” Apparently, the government believed that “as soon as practicable” meant “all deliberate speed.”

Not so, the district court held:

When expedition is appropriate, an agency is obligated to process the request “as soon as practicable.” Here, there is no dispute that EPIC’s FOIA requests are entitled to expedited processing; all four of the DOJ components who received EPIC’s requests have so conceded. Rather, the primary dispute between the parties in this matter is the meaning of the statutory language “as soon as practicable.” . . . .

DOJ argues that the “as soon as practicable” language in the expedited processing provisions should be interpreted to impose no concrete deadline. . . . Under DOJ’s view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests, with the courts playing no role whatsoever in the process. When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer. . . .

As EPIC suggests, DOJ’s reading of the statute would give the agency unchecked power to drag its feet and “pay lip service” to a requester’s “statutory and regulatory entitlement to expedition.” . . . .

However, “[m]erely raising national security concerns cannot justify unlimited delay.” Congress has already weighed the value of prompt disclosure against the risk of mistake by an agency and determined that twenty days is a reasonable time period, absent exceptional circumstances, for an agency to properly process standard FOIA requests. Here, DOJ has not yet made any specific showing that it will not be able to process the documents within the time period sought by EPIC. Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further—government openness and accountability.


Related Posts:

1. Solove, How Much Government Secrecy Is Really Necessary?

2. Solove, Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

3. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

4. Solove, President Bush, the National Security Agency, and Surveillance

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