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Judge refuses expedited review in FOI case

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    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Judge refuses expedited review in FOI case

  • A federal district court in Washington, D.C., in December refused to order the government to expedite its review of a Freedom of Information Act request made in September for information on orders that U.S. attorneys lobby for federal legislation to curb their powers under the USA Patriot Act.

Jan. 16, 2004 — Judge James Robertson of the U.S. district court in Washington, D.C., in December refused to rule that a Freedom of Information Act requester was entitled to expedited review. The requester had sought Justice Department instructions to U.S. attorneys to meet with congressional representatives on the need for broader law enforcement powers under the USA Patriot Act.

Robertson’s decision is among first to address the “expedited review” language in the 1996 Electronic FOI Act. That act gives requesters a procedure to seek faster treatment of requests when there is a “compelling urgency” for the public to understand what is going on.

In July, the House of Representatives passed the Otter Amendment, a measure drafted by Rep. C.L. (Butch) Otter (R-Idaho) to prohibit funds to carry out the provision of the Patriot Act that delays notification of search warrants. It was before the Senate for a vote there.

In August, The Washington Post reported that the director of the Executive Office for U.S.Attorneys had instructed federal prosecutors nationwide to lobby against the Otter Amendment.

In September, the Electronic Privacy Information Center filed an FOI request for records concerning the August directive and asked the agency to grant expedited review status to its request. The agency refused the expedited review and EPIC asked the court to issue an injunction forcing the agency to give it such review.

EPIC told the court that time was “of the essence” in its need for the information, citing 31 newspaper articles on the prosecutors’ efforts, including editorials critical of the department for lobbying Congress. It told the court that the public needed information about the government’s directive in order to participate in the debate in the matter.

Robertson rejected those arguments, saying that the articles did not establish a “current exigency” and that the request did not merit expedited review.

Robertson did rule however that, despite government arguments to the contrary, EPIC had appropriately brought the case to court. The government had argued that because EPIC had not appealed the denial of expedited review administratively, the case was not ready for court review. But the judge noted that the statute does not set out or require an administrative appeal of expedited review.

(EPIC v. Department of Justice; attorney for EPIC: David Sobel, Washington, D.C.) RD

© 2004 The Reporters Committee for Freedom of the Press

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