NEWS MEDIA UPDATE · NINTH CIRCUIT · Freedom of Information · Dec. 7, 2006
Court orders expedited review of journalist’s FOIA request
Dec. 7, 2006 · A newspaper journalist representing himself has convinced a federal court in San Francisco to order government agencies to speed up their search for records related to government investigations into unauthorized disclosures of classified information.
The order is a victory for Joshua Gerstein, a reporter for The New York Sun who is seeking the information under the Freedom of Information Act.
According to the Nov. 29 court order, the agencies have 30 days to either turn over records responsive to Gerstein’s request or to justify their continued withholding based on one of the nine exemptions to FOIA.
Judge Maxine M. Chesney, quoting higher court cases, said the public interest is advanced by requiring a quick response to Gerstein because “a core purpose of FOIA is to allow the public to be informed about ‘what their government is up to,’ and ‘official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose.'”
Gerstein, as part of his reporting on the government’s handling of classified information leaks, made FOIA requests in March to various agencies, including the FBI, CIA, National Security Agency and Department of Defense. Public awareness of classified programs such as the government’s warrantless wiretapping program and bank information monitoring practices were the result of leaks, Gerstein argued in court documents. Given the heated debate surrounding these issues at the time, Gerstein asked that his requests be expedited.
The FBI, Defense Department and two other agencies granted Gerstein’s call to expedite in their initial responses acknowledging his request. But the CIA and the NSA declined to speed up the process.
While the agencies initially differed in how they stated they would deal with Gerstein, their positions quickly coalesced around a common course of action: ignoring him. By July 31, Gerstein had received no documents and no explanation as to why the records might be exempt. Federal law requires agencies to either disclose materials or explain why they are declining to release them within 20 days of a request.
Gerstein said he expects the agencies will claim various exemptions as the basis for continuing to withhold the material and that the court fight is likely to continue.
“I’m still optimistic, but by no means do I think I have won this yet,” Gerstein said.
In court filings seeking to have the CIA and NSA’s denials of priority review overturned, Gerstein argued there was “widespread and exceptional” public interest in learning of the government’s efforts to deal with leaks. As evidence of this importance, Gerstein used the government’s own words against it, pointing to statements of high-level government officials, including former CIA Director Porter Goss, who argued in a New York Times Op-Ed piece that excessive leaking was a crisis, and Vice President Dick Cheney, who said leaks harmed relationships with other governments.
Chesney agreed that this public interest would be harmed by further agency delay in responding to Gerstein.
“A delay in processing Gerstein’s FOIA request, as he contends, ‘could preclude any meaningful contribution to the ongoing public debate and render any disclosure little more than a historical footnote,'” Chesney wrote.
This is the third FOIA case Gerstein has pursued in court while acting as his own attorney.
(Gerstein v. Central Intelligence Agency, Media Counsel: Joshua A. Gerstein, pro se) — NW