Slow starters

Father of Dodi Al Fayed took a lead in asserting rights under a 1996 amendment to federal law

From the Spring 2001 issue of The News Media & The Law, page 34.

By Rebecca Daugherty

A federal appeals panel in Washington, D.C., was to hear its first case on expedited review of freedom of information requests in mid-May, and its decision likely will tell journalists when their requests can transfer to the fast lane at federal FOI offices.

Since the FOI Act was amended in 1996, journalists have been able to seek expedited review when there is a compelling need for the public to have government information. However, journalists have been slow to realize their entitlement to expedited review and, according to a recent study, agencies have seldom granted it even when asked to do so.

In 2000, Mohamed Al Fayed and Punch Magazine, the British periodical he owns, asked the government to expedite responses to his requests for information on the deaths of his son Dodi Al-Fayed, Diana, Princess of Wales, and chauffeur Henri Paul, as well as records of a $20 million extortion attempt against him, pursuant to the 1996 amendments.

As of April, several agencies had not yet started processing Al Fayed’s requests. In papers filed with the court, counsel for the government told the appeals panel that one reason the information should not be covered by expedited review is that it is now “historical,” not current.

Al Fayed filed 21 FOI requests beginning in1998, the year he was victimized by an extortion attempt which, he said in court briefs, involved former or current intelligence agents, military personnel, an attorney and journalists. He asked for expedited review of several requests, pointing out that the public has a strong and immediate interest in the deaths, in the subsequent attempts to fix with certainty the facts and circumstances surrounding the deaths, in the subsequent extortion plot against him, and in what the government did or did not do to bring about effective prosecution of those who plotted for financial gain for false evidence of conspiracy.

Agencies either denied his requests for expedited review or, more frequently, simply ignored them. In September 2000, Al Fayed asked the federal district court in Washington, D.C., to enjoin agencies from refusing to grant him expedited review. The court refused Al Fayed’s initial request, and rejected a renewed request in December 2000.

At the time he began making the FOI requests in 1998, Al Fayed reported to the CIA and FBI that someone had contacted him in an attempt to sell him what were allegedly CIA papers detailing a British government plot to murder the Princess of Wales. He said in court papers that, at the urging of these agencies, he wired $25,000 to the perpetrators in a sting operation masterminded by the U.S. government that it said would lead to prosecution of the individual recipients.

As a result of the operation, suspect Oswald LeWinter was arrested in Austria carrying forged CIA papers and spent two years there in prison, but no other individuals were prosecuted anywhere and none of the money was recovered, the court papers said. Al Fayed said the government lost interest in prosecuting LeWinter because he has long-time ties to the CIA.

The appeals court will decide whether Al Fayed and his magazine are entitled to have their request expedited. Agencies are required to process normal requests within 20 working days, except in certain circumstances. However, the FBI and the CIA, two of the agencies Al Fayed sued, told him he could expect a response from them in 2002.

If a request merits expedited review, the requester is told within 10 working days and the request is given priority for processing.

By late 2000, most federal agencies had adopted rules requiring that they grant expedited review to matters of compelling urgency, but few requests are actually granted, according to a General Accounting Office study of EFOIA released in March.

The appeals panel deciding the Mohamed Al-Fayed case will determine how diligently expedited review will be enforced.

The court will decide whether federal district courts will review expedited review cases de novo — taking a fresh look at the request. Other FOI matters are decided de novo by courts reviewing agency decisions. In its opinion, the district court said courts should give broad deference to agency determinations, rather than reviewing all the facts in the case de novo, overturning denials of expedited review only when they find an abuse of discretion.

The appeals panel will also decide whether Al Fayed’s request meets the criteria for actually getting expedited review — whether he and his magazine are considered disseminators of information and whether a compelling need exists for the public to have the information he seeks.

The Reporters Committee filed a friend-of-the-court brief with the court, joined by other public interest groups in Washington, D.C., including the Electronic Privacy Information Center, the American Civil Liberties Union of the National Capital Area, the Center for National Security Studies and the National Security Archive. The brief argued that Congress intended courts to apply a de novo standard to a review of an agency denial of expedited processing. This de novo standard ensures that requesters can fully enforce the expedited processing rights granted them under the 1996 amendments.