Federal courts have power to review classification decisions, government brief confirms

Monika Fidler | Freedom of Information | News | November 28, 2012

Government attorneys confirmed on Tuesday that federal courts have the right under the federal Freedom of Information Act to review agency decisions to classify documents when invoking the law's national security exemption.

The government's reply brief in Center for International Environmental Law v. Office of the United States Trade Representative, filed in the U.S. Court of Appeals in Washington, D.C., clarifies its earlier argument regarding the power of courts to substantively review agency classification claims.

“We agree that the district courts (and the court of appeals) play an important role in evaluating the government’s compliance with its obligation under FOIA, in Exemption 1 cases as well as others,” the brief stated.

The clarification responds to arguments made by the plaintiff in the case and The Reporters Committee for Freedom of the Press, which along with 32 other media organizations filed a friend-of-the-court brief arguing that executive branch decisions to classify documents can be scrutinized by federal courts.

The Reporters Committee's brief was filed after statements in the government's opening brief appeared to suggest that executive branch agencies could classify documents and withhold them under FOIA's national security exemption without a high level of judicial review.

"The district court’s refusal to accept the government’s plausible and detailed explanation was improper second-guessing in an area outside the judiciary’s expertise,” the government’s initial brief stated.

The Reporters Committee’s friend-of-the-court brief noted that courts have a “congressionally mandated role to review classification decisions that form the basis of an agency determination to withhold a document under FOIA.”

The case began when the Center for International Environmental Law made a FOIA request to obtain records regarding trade negotiations between the United States and 33 countries.

The government withheld one document under Exemption 1, arguing that its release would harm national security and foreign policy interests. After the trial court gave the government three attempts to justify its classification withholdings, it ordered the release of the document.

In its latest brief, the government agrees that courts should review federal agency classification decisions, but argues that the court in this particular case exceeded its authority. The brief emphasizes that substantial weight should be given to the government’s classification decisions in national security cases. In this case, the government is arguing that the court overstepped its role.

“The Executive is uniquely positioned to assess the prospects of damage to foreign relations and national security,” the government stated in its reply brief. “Because courts lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case, we must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.”

Related Reporters Committee resources:

· Release: Reporters Committee asks court to uphold judicial scrutiny of federal FOIA denials