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Justice must disclose legal document after public references

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    News Media Update         NEW YORK         Freedom of Information    

Justice must disclose legal document after public references

  • A federal judge ordered the Department of Justice last week to release an internal legal memorandum, holding that the FOI Act’s exemption for privileged records did not apply after officials publicly cited the memo.

Oct. 5, 2004 — An internal legal opinion on local law enforcement agencies’ ability to arrest immigrants for civil deportation is not exempt from the Freedom of Information Act because federal officials had discussed it publicly three times, a federal district court in Manhattan ruled last week.

An FOI Act exemption protecting internal and privileged memoranda was voided, the court ruled, when officials talked publicly about an April 2002 memo from the Office of Legal Counsel, a Department of Justice office charged with legally advising the executive branch. The memo analyzed the legality of a Justice Department proposal to involve state and local law officers in enforcing civil provisions of federal immigration law. In June 2002, Attorney General John Ashcroft adopted the policy, authorizing state and local law enforcement officers to arrest individuals for civil deportation.

The policy replaced one authorizing state and local law officers to enforce only criminal provisions of federal immigration law. A 1996 Office of Legal Counsel opinion had explicitly concluded that state and local law officers lack recognized legal authority to stop an illegal immigrant solely on suspicion of whether he can be subject to civil deportation.

In an attempt to address the disparity between its previous position and its new policy, Justice Department officials publicly referenced the April 2002 Office of Legal Counsel memo as support for the new policy’s legality. The Justice Department never published the April 2002 memo. The 1996 Office of Legal Counsel opinion remains on the Office of Legal Counsel Web site.

A group of public interest organizations, including the National Council of La Raza and the American Civil Liberties Union, filed FOI Act requests in August 2002 and March 2003 for the unpublished memorandum. The groups sued after the department, citing the deliberative process privilege exemption, refused to release the memo.

Federal district Judge Lewis A. Kaplan of Manhattan agreed with the plaintiffs that the department waived the deliberative process privilege — and simultaneously, the corresponding FOI Act exemption — when it repeatedly publicly discussed the memorandum’s existence in order to assuage concerns over whether the new policy is legal.

“[T]he April 2002 memorandum must be produced,” Kaplan ruled. “The Attorney General and his representatives repeatedly and deliberately have invoked the April 2002 memorandum to justify their decision to seek cooperation from state and local police in enforcing civil deportation laws,” thereby inviting public scrutiny of the new agency law’s “analytical backup.”

(National Council of La Raza v. Dep’t of Justice, Media Counsel: Christopher Dunn, New York Civil Liberties Union, New York, New York) RL

© 2004 The Reporters Committee for Freedom of the Press

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