Appeals court rules DOD records exempt under FOIA

The Department of Defense does not have to publicly disclose documents related to the formation of special military commissions created to try suspected terrorists despite the fact that the documents were produced by consultants hired outside the agency, a federal court ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled that the Defense Department could withhold 19 of the documents requested by the National Institute of Military Justice under a Freedom of Information Act exemption that permits a federal agency to withhold documents related to matters "that are … inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

The Defense Department released some documents requested by NIMJ, which had asked for all written or electronic communications pertaining to President Bush’s November 2001 military order addressing the commissions, but the department withheld 19 documents submitted by consultants such as a former DOD general counsel and a former Department of Transportation secretary.

While NIMJ argued that the documents were not part of an "intra-agency" process because the consultants were private citizens and not agency employees, the court relied on precedent to rule that the deliberative work of such consultants does indeed fall within the agency’s purview, provided the work they produce does not reflect the consultant’s individual interests.