D.C. Circuit ponders court's role in scrutinizing national security claims under FOIA

Aaron Mackey | Freedom of Information | News | February 21, 2013

Federal appellate judges on Thursday examined whether the executive branch gets the last word in classifying documents under the Freedom of Information Act's national security exemption.

In oral arguments in Center for International Environmental Law v. U.S. Office of the Trade Representative, the three-judge panel for the U.S. Court of Appeals in Washington, D.C. appeared split on how much deference federal courts must give agencies when they claim that releasing classified documents would harm foreign affairs. The panel is expected to issue an opinion in the coming months.

The case involves a FOIA request for a document used by U.S. trade representatives in failed trade negotiations with several foreign countries. A trial court ordered the agency to release the document, but the government appealed last fall, arguing that disclosing the document could harm its ability to negotiate future agreements and also damage its credibility among other nations.

Under FOIA, courts are required to give some deference to the executive branch’s expertise on matters of foreign affairs when scrutinizing whether they have properly withheld documents under the statute’s national security exemption.

But Martin Wagner, an attorney for the Center for International Environmental Law, argued that the deference given to agencies in the context of FOIA’s national security exemption does not mean that courts are to serve as mere rubber stamps of agency decisions.

In particular, Congress strengthened FOIA in 1974 to permit courts to scrutinize withholdings under FOIA’s national security exemption, Wagner said. The trial court’s ruling that releasing the document would not cause harm to foreign affairs was therefore proper under FOIA, he said.

The government’s attorney, H. Thomas Byron III, disagreed. He argued that in ordering the release of the document, the trial court substituted its judgment for that of experts within the executive branch who are in a better position to understand the potential harm.

Judge Brett M. Kavanaugh wondered whether, under Byron’s reasoning, a court could ever order the release of a document.

“When do you think a court could ever disagree?” he asked. “Wouldn’t deference cover 100 percent of the cases?”

Kavanaugh also pointed out that the FOIA amendment compelling courts to scrutinize national security claims passed over a veto by President Gerald Ford in 1974, who voiced concerns similar to those made by Byron that such scrutiny improperly intrudes on the executive branch’s constitutional authority to conduct foreign affairs.

“You don’t think Congress could put courts in the position of second guessing the executive branch?” Kavanaugh asked.

But Judge A. Raymond Randolph appeared hesitant to agree with the trial court, as he seemed to believe the government’s reasons for withholding the document were reasonable.

Wagner responded by arguing that the executive branch should have to do more than identify a small potential of harm before it can withhold records under FOIA.

“There is a cost that comes with democracy,” he said. “You can’t just say we’re going to stub our toe; there has to be real harm.”

The Reporters Committee for Freedom of the Press, along with 32 other media organizations, filed a friend-of-the-court brief in the case in support of the Center for International Environmental Law.

Related Reporters Committee resources:

· Federal FOIA Appeals Guide