Reporters Committee lauds another win for openness in Supreme Court

from Reporters Committee for Freedom of the Press:

Washington, D.C. — The Reporters Committee for Freedom of the Press lauded today’s U.S. Supreme Court decision in another decision favorable to open government, this time ruling that the Navy’s use of a Freedom of Information Act exemption for records regarding internal agency personnel rules and practices was improperly invoked to deny the release of maps and charts.

“For the second time in a week, the Supreme Court has reinforced the public's right to get valuable information held by the government through the Freedom of Information Act,” said Reporters Committee Executive Director Lucy A. Dalglish. “The government's interpretation of the ‘High 2’ exemption was tortured, at best, and once again the Court relied on a common sense approach to government transparency.”

Last week, the court ruled that AT&T could not use a FOIA exemption related to “personal privacy” to prevent the Federal Communications Commissions from releasing records about the corporation.

The Reporters Committee and 19 news organizations filed an amicus brief last September in Milner v. Department of the Navy cautioning against the “erroneous” expansion of FOIA Exemption 2 with so-called “High 2” information that includes more than basic personnel rules and records.

“Exemption 2 by its plain language exempts only those materials ‘related solely to the internal personnel rules and practices of an agency.’ However … it has been expanded by agency interpretation and adopted by lower courts to over time cover more than just trivial matters of internal procedure to also include almost any record whose disclosure could enable some unidentified party to commit a hypothetical crime at some undefined future time,” the media brief noted.

Read the rest here.

Does new Supreme Court decision in FOIA case stop Citizens United in its tracks?

from CREW:

The Supreme Court issued a decision in Fed. Communications Comm’n v. AT&T, holding the protection the Freedom of Information Act provides for “personal privacy” does not include corporations. AT&T was trying to prevent the disclosure of documents it had submitted to the FCC as part of an investigation, arguing their release would invade the corporation’s personal privacy. According to AT&T, because the word “person” in the FOIA includes corporations, the reference to “personal privacy” must also include corporations.

When the Supreme Court agreed to hear this case, many feared the Court would use it as an opportunity to extend its ruling in Citizens United, where it recognized the First Amendment rights of corporations, to broader contexts such as the FOIA. A number of groups, including CREW, filed friend-of-the-court briefs urging the Supreme Court to use common sense and congressional intent to limit the FOIA’s personal privacy protection to individuals.

Read the rest here.

High court hears argument in FOI corporate privacy case

from Reporters Committee for Freedom of the Press:

It was a lesson in vocabulary during oral arguments at the U.S. Supreme Court held Wednesday morning, as the high court wrestled over the meaning of the word "personal." The case, FCC v. AT&T, concerned a federal Freedom of Information Act request for documents regarding a Federal Communications Commission investigation into AT&T's participation in a federal telecommunications build-out program. AT&T self-reported that it may have overcharged the government for its services.

The question before the Supreme Court on Wednesday was whether Exemption 7(c) of the FOIA recognizes and protects the "personal privacy" of corporate entities in the same manner as it does for individuals. Exemption 7(c) states "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Read the rest here.

See more analysis here.

Supreme Court cases involve funeral protests, video games, FOIA

from the First Amendment Center:

WASHINGTON — Last term, the First Amendment was front and center on the Supreme Court’s docket, producing a major decision on campaign-finance regulation and an array of other rulings on topics ranging from a Christian cross in the Mojave Desert to animal-cruelty videos.

It’s still early, but the next Supreme Court term is shaping up similarly, with First Amendment disputes comprising some of the most important and provocative cases that are already docketed. The Court has also agreed to consider a Freedom of Information Act case and a privacy case, both of which may affect information-gathering by the government.

Read more here.

Kagan sought secrecy in 4 of 5 open government cases

WASHINGTON — Supreme Court nominee Elena Kagan's arguments as solicitor general in several cases on government secrecy were at odds with a promise of transparency made by her boss and top client, President Barack Obama.

In four of five cases she dealt with involving the Freedom of Information Act, Kagan argued in favor of secrecy, Justice Department documents show. In those four lawsuits, the Supreme Court took her side and let lower court rulings in the government's favor stand.

...

In the most widely publicized freedom of information case, Kagan successfully argued that the Supreme Court should overturn a New York appeals court ruling that directed the government to release photographs of foreign detainees being abused by their U.S. captors. The American Civil Liberties Union sought the photos; Obama and the Pentagon opposed their release.

Read more here.

ProPublica Challenges U.S. Supreme Court Assertion

ProPublica decided to challenge a premise in the U.S. Supreme Court majority opinion of the Citizens United case, which overturned limits on corporate election spending . Justice Anthony Kennedy wrote, "With the advent of the Internet, disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters."

ProPublica tested this assertion by looking at fundraisers held by 16 lawmakers at two Bruce Springsteen concerts last year. "While we found many records online, none of them clearly identified those who attended the fundraisers or how much money was raised. At best, we ended up with a handful of possible attendees. At worst, we were left with no clues at all," wrote Sebastian Jones of ProPublica.

For details, click here.

Justice Scalia Says Democracy Requires "Civic Courage"

"Trust but verify, I like that," said U.S. Supreme Court Justice Anontin Scalia during the oral arguments in the case of Doe v. Reed, a case to decide whether the signature petitions to overturn Washington state's R-71 are public records and can be disclosed.

Justice Scalia's statements hint that the state public records law will prevail. He noted that voting was public for the first century of U.S. history, "you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for -- the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process."

Click here for more, including transcripts of the oral arguments.

For more background on the case, click here.

Washington Attorney General Argues No Right to Privacy for Petition Signers

Gearing up for the April 28th hearing at the U.S. Supreme Court over the attempt to block the release of names of people who signed petitions to negate an expansion of gay rights, lawyers for Washington state filed briefs arguing that people who sign petitions have no right to privacy.

In September U.S. District Court Judge Benjamin Settle ruled that releasing the petition names would violate the individual's constitutional right to engage in political speech anonymously. The Ninth Circuit Court of Appeals overruled the lower court's decision, declaring that petition signing is not an anonymous act and allowing disclosure of the signer's identities.

The U.S. Supreme Court stayed the decision pending its ruling.

Legal scholars anticipate the decision could have far-reaching effect on the state's initiative and referendum process as well as other open government laws, such as the disclosure of political campaign contributors.

Read more here.

Washington Senate Votes to Make Voter Petitions Public Records

Washington Senators voted 28-20 to make voter petitions public records, including the names and addresses of people who sign initiatives and referenda.

In January, the U.S. Supreme Court said it will decide whether the people who signed Referendum 71 petitions should have their names publicly disclosed. Referendum 71 sought to overturn an expanded gay rights law.

For more about the bill, click here.

U.S. Supreme Court to Hear Washington Referendum 71 Petition Dispute

The U.S. Supreme Court will hear Doe v. Reed, the case to determine whether the names of Washington voters who signed a ballot petition for Referendum 71 can be made public. The referendum sought to overturn expanded rights for same-sex couples, and supporters of gay rights filed a public records request for the names of those who signed the petition. Referendum sponsors objected, saying the signers would be harassed.

Meanwhile a Washington state legislative committee is considering competing bills over the dispute. One would provide an exemption to the state's Public Records Act for the names and addresses on initiative or referendum petitions; the other would declare them public records.

Read more here.

Update: U.S. Supreme Court Blocks Release of Referendum 71 Petitioners

Supreme Court Justice Anthony Kennedy has temporarily blocked Washington state officials from releasing the Referendum 71 ballot petitions.  Referendum 71 is a ballot initiative asking Washington voters to approve or reject the state's law that grants domestic partners the same legal rights as married heterosexuals.   

Kennedy's order will remain in effect while he considers a request by a pro-marriage group that asked him to reverse the appellate court ruling, which had order the names released.  

Get more information here. 

Dissecting Sotomayor's media law record

The Reporters Committee for Freedom of the Press posted an analysis of how Judge Sonia Sotomayor, President Obama's Supreme Court nominee, handled three cases related to media law. In U.S. v. Quattrone, she wrote the majority opinion that struck down a gag order on the press related to the retrial of a former Credit Suisse First Boston executive. In Aequitron Medical Inc. v. CBS, she wrote the opinion that allowed the infant monitor manufacturer to sue CBS News for various business claims but dismissed the defamation and trade libel claims based on procedural grounds. Although Sotomayor has favored withholding records rather than releasing them under federal FOIA, she ordered the release of the suicide note of former deputy White House counsel Vince Foster.

We're compiling a full report on the record of Judge Sonia Sotomayor, President Obama's Supreme Court nominee, in the areas of First Amendment and media law, and expect to post our findings here tomorrow. In the meantime, though, Sotomayor's input on three cases seemed particularly noteworthy:

In high-stakes prosecution, Sotomayor rejected prior restraints on the press.

A 2005 opinion regarding the high-profile prosecution of a bank executive suggests that Sotomayor, in her time as a judge on the U.S. Court of Appeals in Manhattan (2nd. Cir), understood well the value of a transparent judiciary and a free press.

More here.

The Supremes Weigh in on a FOIA Case..

In case you missed it, Dan Metcalfe's Collaboration on Government Secrecy brings word that the United States Supreme Court weighed in on a rather narrow federal FOIA issue this week:

The Supreme Court issued its decision in Taylor v. Sturgell, in which it reversed the lower court's decision (written by Circuit Judge Douglas H. Ginsburg of the Court of Appeals for the District of Columbia Circuit) and ruled that, as a sound general rule, courts "should not proscribe or confine successive FOIA suits [i.e., for the same records] by different requesters."

Writing for a unanimous Court, Justice Ruth Bader Ginsburg rejected the D.C. Circuit's "broad theory of virtual representation," concluding that while "it is theoretically possible that several persons could coordinate to mount a series of repetitive [FOIA] lawsuits," there is insufficient "risk" of "vexatious litigation" or "abusive FOIA suits" to warrant such a harsh preclusive rule for successive lawsuits brought under the FOIA. This is the thirtieth FOIA case decided at the Supreme Court level (and, putting aside the commonality of the two jurists' names, might be the first time in which the Supreme Court has reversed a decision written by a failed nominee to the Court.)