Federal judge orders government to provide better descriptions of withheld records

NEW YORK — The Justice Department must describe more fully records it intends to withhold on the activities of its National Obscenity Enforcement Unit from the American Civil Liberties Union Foundation, a federal district court in Manhattan ruled in early October.

Shortly after the ruling, the Justice Department wrote the foundation that it intends to begin releasing many of the previously withheld documents on November 22, in line with the department’s new policy, announced in October, of dropping litigation against FOI requesters where release of the records is discretionary and would cause little or no harm.

The ACLU Foundation in the late 1980s began gathering information on the obscenity unit at the Justice Department and in 1991 published “Above the Law: The Justice Department’s War on the First Amendment.”

Marjorie Heins, ACLU Foundation director, said many records obtained through discovery in court cases showed that the government tried shut down distributors of pornography and sex toys by bringing multiple simultaneous prosecutions that the distributors could not afford to defend in court. Other records showed efforts to train local radical right antipornography groups in shutting down local adult video stores even where those stores only carried some pornographic videos.

In mid-1991 the foundation filed Freedom of Information Act requests with the unit for more records on these activities. After delays in response it sued for the records in March 1992. The government then released 41 of 229 records from the obscenity unit and a “Vaughn Index,” to describe the other records withheld in whole or in part.

The ACLU told the court that the Vaughn index failed to describe what the government was withholding.

Judge Pierre Leval agreed. He ruled that the Justice Department must provide assurance that it had segregated out and disclosed nonexempt information from records that also contained exempt information. He also ordered the department to disclose, at least to the extent that it could do so without time- consuming research, information about the recipients of withheld records including their addresses; custodians of those records; and authors of the records.

He also ordered the government to give better descriptions of its reasons for withholding particular records and of the need to invoke exemptions to the FOI Act. For instance, where the government cites the internal memorandum exemption (Exemption 5), it must describe the policy under discussion that would be protected, Leval wrote. Where the agency invokes the law enforcement exemption (Exemption 7), it must explain whether it is protecting a particular case or a general class of cases, whether a case is open or closed and, if closed, why the withheld information should continue to be exempt. If the government claims that disclosure would interfere with law enforcement proceedings other than pending cases, it must describe how release could cause any threat, the judge said.

(ACLU Foundation v. Department of Justice; Counsel: Gregory Diskant, New York)