- Ladies and gentlemen, welcome. And thank you for joining 2021 Sunshine Week at NARA.
00:07 - Before we begin, please ensure that you have opened the WebEx participant in chat panel by using the associated icon located at the bottom of your screen.
00:15 - Please know all audio connections are muted and this conference is being recorded.
00:20 - You’re welcome to submit written questions throughout the session, which will be addressed at the Q&A session of the meeting.
00:26 - To submit a written question select all panelists from the dropdown menu in the chat panel then enter your question in the message box provided and send.
00:34 - If you require technical assistance please then chat to the event producer.
00:38 - With that I’ll turn the webinar over to David Ferriero, Archivist of the United States, please go ahead.
00:45 - - Or Alina Semo. - Yes, good morning everyone.
00:49 - Good afternoon, everyone rather. Sorry, this is Alina Semo.
00:52 - I am the director of the office of government information services.
00:55 - I wanna welcome everyone this afternoon. Thank you all for joining us virtually at the National Archives today as we kick off our celebration of Sunshine Week 2021 whether you’re joining us by WebEx or the NARA YouTube channel, we welcome you.
01:09 - I hope everyone has been staying healthy, safe and well.
01:14 - As some of you may know, OGIS resolve disputes by identifying methods to improve compliance with the statute and educate our stakeholders about the FOIA process.
01:24 - And we’re very excited once again, to help David Ferriero the Archivist of the United States post Sunshine Week at the Archives.
01:31 - It is hard to believe that one year ago we had to cancel our Sunshine Week events due to the global pandemic.
01:37 - But if this past year has taught us anything it is that we can adapt to changing circumstances.
01:43 - And we have been successful in hosting numerous virtual events since March, 2020.
01:48 - Each year, we honor Sunshine Week by promoting dialogue about the importance of open government and access to information, values that are central to the mission of the National Archives and Records Administration.
02:01 - We have put together an exciting program this afternoon and I’m particularly pleased that we will be bringing viewpoints from both the judicial and legislative branches.
02:10 - Please visit our website archives. gov/ogis there you will find more information regarding today’s program, including speaker biographies.
02:20 - This will help maximize the time we hear from all of our speakers today.
02:24 - A few brief housekeeping items before we launch into today’s program.
02:29 - Members of the OGIS staff will be monitoring the chat function both in WebEx and the NARA YouTube channels throughout this afternoon.
02:37 - We will leave a few minutes at the end of each segment for audience questions that you may type directly into the chat function of either platform.
02:45 - If you’ve experienced any technical difficulties while participating via WebEx, please feel free to chat our event producer for assistance.
02:53 - On the YouTube channel our OGIS staff will do their best to assist you with any technical issues.
02:58 - Unlike other public events OGIS has hosted in the past, we will not be accepting questions via telephone and we will not take a break.
03:06 - Now it is my honor and pleasure to introduce the Archivist of the United States, David Ferriero who will officially kick off our program today.
03:15 - David Ferriero was confirmed as the 10th Archivist of the United States on December 6, 2009.
03:21 - Prior to his confirmation as Archivist David served as the Andrew W. Mellon Director of the New York Public Libraries and held top positions at Choose the major Nation’s academic libraries, MIT and Cambridge, Massachusetts and Duke university in Durham, North Carolina.
03:38 - He earned his Bachelor of Arts and Master of Arts degrees in English literature from Northeastern University in Boston and a Master of Arts degree from the Simmons College of Library and Information Science also in Boston.
03:50 - Since early in his tenure David has committed the National Archives to the principles of open government; transparency, participation and collaboration which is the very values we are also celebrating today.
04:03 - David has also been a constant supporter of OGIS and the work that we do, and we are extremely grateful for his sustained support and leadership.
04:12 - Please join me now in welcoming your Archivist of the United States, David Ferriero to kick off today’s program.
04:18 - - Thank you Alina and greetings from my office at the National Archives building authentic Virginia Avenue here in Washington.
04:27 - A year after the COVID-19 pandemic forced cancellation of Sunshine Week events across the country including here at the National Archives I recognize the difficult times we’ve all faced over the past year as we’ve distanced ourselves from one another juggling professional and personal obligations and grappled with national and international unrest and uncertainty.
04:49 - Sunshine Week is an annual nationwide celebration of access to public information, mid-March that coincides with the birthday of the fourth president of the United States James Madison.
05:01 - Tomorrow, March 16th, marks 270 years since his birth.
05:06 - And it’s particularly fitting that we at the National Archives celebrate Mr. Madison.
05:11 - Among the many treasures of America’s past and the holdings of the National Archives and to documents that Mr. Madison played a pivotal role in drafting and promoting the US constitution and the bill of rights.
05:24 - Mr. Madison was largely responsible for the proposals guaranteeing freedom of the press and ensuring jury trials matters that are near and dear to today’s program guests, as well as to our democracy.
05:36 - In a letter penned in 1825, Mr. Madison said the advancement and diffusion of knowledge is the only guardian of true Liberty.
05:46 - 141 years later in 1966, the 34th president of the United States, Lyndon Baines Johnson echo that sentiment in signing the freedom of information act into law.
05:59 - In his bill signing statement, president Johnson noted, “I have always believed that freedom of information is so vital that only the National Security not the desire of public officials of private citizens should determine when it must be restricted. ” Today, government transparency remains as important as ever both within and beyond the FOIA framework.
06:22 - Our National Archives staff works to make access happen not just during Sunshine Week, but each and every day even during a global pandemic.
06:31 - Despite teleworking full time staff members from our office of research services are responding to reference requests preparing and submitting digitized files and metadata for upload into the National Archives catalog among many other tasks.
06:47 - Mission essential staff members in our national personal records center in St. Louis have regularly reported to work throughout the pandemic to access paper records often needed to support veterans and their families with urgent matters such as medical emergencies homeless veterans seeking shelter and funeral services for deceased veterans.
07:10 - These exceptional National Archive staff pioneered alternate work processes incorporating physical distancing and other protective measures to ensure a safe work environment while providing this critical service.
07:25 - As we work to cultivate access to important government records the National Archives also continues to set the pace in the government wide effort to modernize federal agency record keeping and transform to a fully electronic government.
07:41 - Since the pandemic started one year ago NARA’s Office of Government Information Services, the federal FOIA Ombudsman has responded to more than 4,000 inquiries from requesters and agencies seeking assistance for the FOIA process.
07:57 - OGIS has published seven compliance assessments on topics as wide ranging as agency communication with requesters during the pandemic in proactive posting of documents on agency FOIA websites.
08:10 - OGIS connects with customers in many other ways, including through the FOIA advisory committee and in public events such as this one.
08:19 - It’s a special treat to welcome the honorable judge Royce Lamberth of the US District Court here in Washington, DC.
08:26 - Judge Lamberth is a time friend of the National Archives and in pre-pandemic times, frequently presided over naturalization ceremonies as immigrants have taken their oath of US citizenship in front of the declaration, the constitution and the bill of rights, our nation’s cherish charters of freedom.
08:46 - Today, he is joined by his biographer and former law clerk, Adam Pearlman, to discuss Open Government and the Legal Landscape.
08:55 - Following the conversation, another friend of the National Archives Senator Patrick Leahy of Vermont will join us in a recorded message.
09:03 - Senator Leahy, who chairs the Senate Appropriations Committee was elected to the Senate in 1974 the same year that Congress amended FOIA in the wake of the Watergate scandal and several other court decisions.
09:18 - In his four plus decades since, he’s led every congressional effort to reform FOIA and is a true champion of the statute and of government transparency overall.
09:30 - Finally, we’ll close our celebration with a panel of open government experts, continuing the discussion about US transparency I’m pleased to welcome Michael Bekesha of Judicial Watch Katie Townsend of the Reporters Committee for Freedom of the Press and Alexander Perloff-Giles of Gibson Dunn & Crutcher’s media entertainment and technology practice and a member of the FOIA Advisory Committee.
09:56 - The discussion will be moderated by Kirsten Mitchell of OGIS.
10:00 - So happy Sunshine Week, I hope you enjoy today’s program.
10:04 - And I turn the microphone back to Alina. - David, thanks very much for that enthusiastic introduction and we’re right on schedule.
10:15 - So I’m going to continue our celebration of open governance introducing our first agenda on our agenda.
10:22 - I know you all share my excitement and hearing from senior United States District Court Judge Royce C. Lamberth today.
10:29 - Judge Lamberth has served on the United States District Court for the District of Columbia since 1987, including as the Presiding Judge of the United States Foreign Intelligence Surveillance Court from 1995 to 2002.
10:42 - As Chief Judge from 2008, 2013 and since 2013 as a Senior Judge.
10:48 - Most recently Judge Lamberth has been assigned as the visiting judge for the US District Court for the Western District of Texas, which makes sense since Judge Lamberth is a San Antonio native having earned his BA from the University of Texas and an LLB from the University of Texas School of Law.
11:05 - We owe our gratitude today to Adam Pearlman, Judge Lamberth’s former law clerk before we put together the segment today.
11:11 - Adam himself has a distinguished resume. He has a National Security Law expert with many years of experience, both in the executive and judicial branches of government.
11:21 - He has a JD from GW Law School and a BA from UCLA.
11:25 - I was particularly intrigued to learn that Adam speaks and reads Portuguese, but we hope the conversation with Judge Lamberth today will be in English.
11:34 - Please join me in welcoming Senior Judge Royce Lamberth and his former law clerk, Adam Pearlman for what is sure to be a fascinating conversation regarding Judge Lamberth judicial legacy.
11:45 - Over to you gentlemen, thank you. - Thank you Alina and I can promise it will be in English today, there are clips of main Portuguese out there, but we’ll spare everybody that suffering.
11:59 - But thanks again, Alina. Thank you, Mr. Ferriero thank you, National Archives.
12:05 - And Alina your whole team at OGIS. You know, on behalf of me and Judge Lamberth I think it’s fair to say we are both honored to be here.
12:16 - As recently as last week, the Washington Post called Judge Lamberth of firing presence on the bench.
12:22 - And I think we’ll probably see a bit of that today.
12:26 - As his biographer, I might have certain biases but one of the questions I’ve been asking people who I’ve interviewed is not some sycophantic exercise if he’s the best trial judge on the bench or is he the nicest judge, you know or is he the most eloquent.
12:44 - What I have asked is, is he one of the most consequential trial jurors in the United States in the last 50 years and not a single person that I’ve spoken to so far has quarreled with that proposition.
12:59 - His take is touching on government transparency are both one reason why.
13:03 - Mr. Ferriero himself once mentioned to me that at least some point he had more published FOIA cases than any other judge.
13:10 - He’s in Freedom Forum Institute’s National Freedom of Information hall of fame.
13:16 - And of course there’s more from the law that he’s created and in national security cases with respect to the handling of classified information or to his defense of or adjudication of some of the biggest civil suits brought against the United States to some key rulings, with respect to the very secret of grand jury process.
13:37 - Today we get to publicly talk about some of these issues and perhaps preview some of the stories and perspective that may ultimately appear in the book.
13:46 - A couple of quick ground rules. We have about an hour and plan to save some time for Q&A but obviously won’t be discussing any matter that’s currently in any stage of litigation.
13:56 - Nothing said should be construed as suggesting how Judge Lamberth might rule in any particular case in the future, nor does any opinion that I might offer today necessarily represent the policy or position of any department or agency that I’ve happened to work for.
14:12 - And I figured we’ll just kick this off but because of Sunshine Week, let’s begin with a case that implicated at least in a small way, the Sunshine Act.
14:21 - Judge, can you talk to us about your 1993 case of Association of American physicians and Surgeons (indistinct) Clinton? - Well, maybe it was one of the first cases I had involving Sunshine Act, the advisory committee act was intended to be open.
14:44 - And if you did not have all government employees the meetings tend to be open and instead we’re not open the minute said to be public.
14:54 - And when president Clinton first came to office he decided to set up a task force to decide healthcare should be reformed.
15:04 - Something that all probably happened under president Obama years later, but when president Clinton first took office, he set up a healthcare task force and he made the First Lady the chairman of the task force.
15:18 - She was not a government employee so it was clear to me when the case was brought by this Association of Physicians and Surgeons that she had to have the meeting open to the public.
15:30 - And the minutes of the meeting had already been held and had to be made public.
15:36 - And the statute was crystal clear. And so I ordered that the meeting to be open to the public and the meeting minutes be made public, and it was like a huge upsetting of the Appellate Court for the Clinton administration.
15:59 - They took off January 20th I had ruled by early March that all this had to be done.
16:05 - They took an emergency appeal and the appeal was decided by May so it was along a very fast track.
16:13 - Interestingly enough, the Court of Appeals reversed me.
16:17 - It was an interesting experience for a district judge I had been on some time by then, and I was quite confident that on the law I was right, 20 years later I still think on the law I was right.
16:33 - The law was crystal clear if you’re not a government employee this is the way it works.
16:40 - The Court of Appeals found that she was the functional equivalent, whatever that means of a government employee.
16:48 - Obviously the first lady was unique but she was not a government employee.
16:53 - The conflict of interest laws did not apply all the normal things that go along with government employment like conflict of interest laws and statutory requirements that would apply to who could make what and who couldn’t and all those sorts of things did not apply.
17:11 - The groups did not have to make disclosures since she was not a government employee, all those sorts of things, but the Court of Appeals actually ruled that she was the functional equivalent, whatever that means, of government employee.
17:23 - So they reversed me and said that this could all be done in secret.
17:27 - Well, you can imagine that there was quite a consternation and ultimately I was blind when the healthcare task force went down in flames.
17:37 - It was one of the major failures of the new Clinton administration.
17:41 - And it was a complete disaster in public relations for the new Clinton administration but whole healthcare task force foundered on their lack of transparency on their reviews of the business out in the open and the way they went about trying to secretly develop a plan to (indistinct) an order the whole health care system.
18:07 - It was done when the Obama administration came in and they then did a new plan.
18:16 - They did it all in the open. They then ran into some trouble ‘cause they couldn’t get a single Republican to vote for it.
18:23 - So it was also a controversial plan. It became known as Obamacare because they didn’t get a single Republican vote but they got it through late.
18:32 - It was voted through, contrary to the Clinton plan.
18:36 - But in any of them, it was a major setback for the Clinton administration because they tried to do it in secret and it didn’t succeed.
18:46 - I was never in doubt about what the law was.
18:54 - I was always in doubt about why the Supreme Court refused to take the case but obviously it was a very political case in terms of what is the role of the First Lady and what does that mean about this rewriting the law to take care of the First Lady’s position which the Court of Appeals did very conveniently and said she’s the functional equivalent of government employee.
19:22 - That was one of the most significant early on cases I had about openness in government, but I’ve certainly had my share over the years.
19:32 - - Indeed you have. - One thing while we’re here and that is, it’s a great honor for me to be invited by David Ferriero to give this thought today, the Archives under his leadership has done a terrific job of responding and being transparent and helping with government transparency.
19:54 - And I very much appreciate Mr. Ferriero’s efforts in keeping this going.
20:01 - Some agencies have done better than others during the pandemic, the Archives is one of those that it’s really tried to keep the effort ongoing.
20:11 - Many agencies have really just stopped processing FOIA and it’s been a real hardship in many agencies to get documents out at all, but they’ve given such a back seat to FOIA during this year of the pandemic.
20:28 - The Archives has really led the way in not letting that happen.
20:32 - And I commend the archives that Mr. Ferriero’s leadership of the Archives of how he has really not let that happen with the archives.
20:41 - The archives is under his leadership a leading part of the government.
20:47 - Always had transparency and openness, and I’m delighted to be able to have the opportunity to talk about that subject today.
20:57 - - Indeed, and I guess that’s a good way to get immediately to what is really the workhorse law, I guess of government transparency and that would be the Freedom of Information Act that’s very familiar to everyone.
21:13 - There are certainly more, we’ll talk about more but let’s talk about FOIA for a couple of minutes.
21:17 - Evidently you’re nearing about 200 published FOIA opinion.
21:23 - And in one from a few years ago called the Labow, the Department of Justice, you did note that and I’ll quote, “For anyone skeptical of the truth behind the cliché that freedom is not free, FOIA litigation is perhaps one of the best examples of the costs of open government.
21:42 - In this area of law, fights over similar words in individual sentences routinely last several rounds of administrative review and litigation including volleying between the district and appellate courts.
21:54 - This opinion alone will dedicate several hundred words to examining whether the FBI may withhold a single sentence. “ That’s of course, just one opinion.
22:03 - One passage in one opinion of many, many years of FOIA I’m sure it’s proven, but it is certainly a resource intensive process.
22:14 - And can you briefly talk about how you handle FOIA cases as a judge versus how you litigated them when you were an assistant US attorney? - Well, most FOIA cases will go with some process of getting the documents processed first and then going by way of motion for summary judgment opposition reply, and a presumption of regularity.
22:48 - Sometimes you will have cases; I had a case called Judicial Watch, I had many cases with Judicial Watch you’re gonna hear one of their representatives on the panel.
22:57 - Today I’m gonna stay on the line and hear that panel because I like to hear practitioners in this area and Judicial Watch certainly is one of the leading practitioners that appears before me a lot.
23:12 - One of their early cases that I had with them back in ‘98 was they were alleging that the Department of Commerce had records that were proved their thesis that if you made a certain contribution to the Democratic National Committee of a hundred thousand dollars, you would get on a trade mission and could fly overseas with secretary Brown, the secretary of commerce.
23:40 - And if you made that amount of contribution DNC then you would get to go on a trade mission Secretary of Commerce overseas.
23:48 - They were trying to get records to demonstrate that from the Commerce Department under FOIA.
23:54 - They came up with a method information that I was allowing discovery.
23:57 - So they had shown some inconsistency conversations affidavit that I had opened up discovery.
24:05 - And I said to Mr. Klayman, who was in representing Judicial Watch, that every time he got some discovery, he turned over a rock and I would have to offer us some more discovery.
24:19 - You’re doing it step by step in FOIA because normally you don’t allow discovery in FOIA but he kept overturning rocks and finding other stuff.
24:28 - And it finally got to the point where he overturned from information that demonstrated that this deputy undersecretary had taken a box of documents home and then they denied they had these documents but he had them all agree they didn’t have them in their possession.
24:47 - He had the documents at his house and he had pretty good evidence of this.
24:51 - So he had a whistle blower that actually had given him a statement that he filed with me in camera.
24:57 - So I actually got the marshals, gave him a subpoena and they went over and they got the documents at this deputy undersecretary’s house.
25:06 - And it was the documents that were the smoking gun.
25:10 - And I got them by subpoena from the deputy undersecretary of house.
25:13 - So it was obviously an unusual Freedom of Information Act case.
25:19 - So it goes that way, but it proved the truth of what they were trying to prove in the first place.
25:23 - So that is what we call open government. The documents were there but they were at his house so they denied him on the Freedom of Information Act.
25:32 - They didn’t have the government possession ‘cause the secretary took them home. (laughing) And a first for me, I’ve had some other interesting FOIA cases.
25:44 - Well, I have a couple if you wanna talk about.
25:49 - (indistinct) the play Mark legal foundation (indistinct) that one where the deputy undersecretary took them home.
25:58 - - Yeah, no, you’ve got a couple of different ones with landmark legal against EPA involving a couple of different administrators.
26:09 - I think from both parties, I wanna emphasize that– - A Republican EPA head and a Democratic EPA head were both miscreants.
26:23 - The first one, the Republican head of EPA, I had information just before the I guess this would’ve been in…
26:33 - I forget what election. Anyway, he was the Republican head of EPA and the landmark legal foundation had information that she was going to leave office on January 20th and they were trying to get records of all the regulations that she was trying to repeal and other regulations she was trying to hurry up right before she left office.
26:59 - And they’re trying to get all these records just before she was leaving office.
27:04 - So once she was doing those slides, few days she was leaving.
27:08 - And I came in like two days before she was leaving office and they had some information that showed some things had been going on in the administrators fast that led me to agree that I would give an order that she could not destroy her hard drive on the day she was leaving office and could not destroy any other records in our office, things like that.
27:35 - So I had a hearing two days before she left office.
27:39 - We entered an order that her hard drive be preserved by the government and her other records and so on.
27:47 - I issued the order. On the morning of the inauguration she went to her office and physically destroyed the hard drive on her computer and destroyed all the records that would have been they would have been sinking.
28:05 - And I ended up with an order to show cause why she should not be held in contempt and the agency should not be held in contempt as well.
28:16 - And it turned out at the trial that no one told her about my order.
28:23 - So she actually honestly did not know of my order.
28:28 - The agency lawyers did not tell her, no one told her.
28:32 - So she actually had no personal knowledge of my order.
28:36 - So I held the agency in contempt but she was never told.
28:43 - No one ever told her that I had entered that order and she could not be held personally in contempt of my order.
28:50 - I could have held her and did not hold her personally in contempt.
28:54 - You can’t hold someone in contempt if they don’t know the order.
29:01 - But I did hold the agency in contempt that they did get stopped with attorney sees and a lot of bad publicity for having destroyed the records that would have shown more fine despondent, perhaps.
29:14 - But of course it had been destroyed at that point.
29:17 - There were other records that then demonstrates some of what the fines wanted, but the key was gone.
29:25 - Obviously that’s not openness in government when you’re destroying your hard drive on the day you leave an office probably other actions could have been taken them.
29:35 - The federal records act, maybe other statutes that maybe were being violated that day as well.
29:41 - That was tough but for me, the contempt motion but in any of them just to show that it’s not always just one party four years later, I have another FOIA case they send me.
29:58 - A different administrator, not even the one that replaced that one, but it’s another one and in the discovery, there begins to be some suspicious things that nothing that ever goes to the administrator and no policies are ever acted on by the administrator herself.
30:18 - It begins to look a little suspicious that how is this agency ever run and the administrator herself she never has a fingerprint for anything.
30:29 - And how do they actually decide anything before the administrator has never actually done anything? And so I began to wonder if maybe something is going on.
30:41 - And somewhere in there, based on some discovery I allowed which is unusual, but I did allow some discovery they find out she had created a FOIA account in her dog’s name.
30:57 - And if you wanted to go to the administrator for her approval of anything you sent it to her dog.
31:07 - And all of the FOIA staff went in her dogs named to her and she did everything in her dog’s name, not in her name.
31:14 - And then when you make a FOIA request, it was processed in her name and no one ever processed any FOIA documents in her dog’s name.
31:22 - So they had been denying and deploy all of these requests because they never processed in the dog’s name, no one had ever requested these things in dog’s name.
31:34 - They didn’t know it was in her dog’s name. Actually that one created such a scandal that she was ended up being forced to resign.
31:44 - So I never actually had the rule on 15th or any of that stuff from that one ‘cause she was forced to resign by public explanation I guess, after a landmark resilience suffered.
31:58 - So I’ve had my share of unusual FOIA cases as well.
32:03 - By and large, you know those are the exceptions of the rules, luckily but sometimes you do uncover unusual circumstances.
32:16 - - Right, it’s easy and it’s admittedly a little bit fun in a dark way to poke fun at the foibles of government and the speeds of some people over the years.
32:31 - It’s just a matter of statistics when you’re dealing with an organization of literally millions of people you’re going to find some people who behave badly sometimes.
32:41 - Of course, it’s just (indistinct) at the agency.
32:45 - Well yes, it is, very much though. And that brings up other questions of leadership and standards and ethics as well.
32:54 - But, you know, as you mentioned, you know despite having these numerous high profile intentional cases where it’s clear that somebody in the government behaving badly and that’s to be generous, sometimes.
33:10 - We still in FOIA cases start off with a presumption of good faith.
33:15 - Can you explain a bit about that for us and what a plaintiff really has to show to pierce that veil and get discovery? - Well, there has to be something unusual.
33:28 - I mean, we dated they we expect the government to act in good faith and they did, that’s what we see the government doing and (indistinct) the FOIA people in most instances have no ax to grind and, you know, they’re just processing the documents and screening them.
33:48 - The FOIA lawyers have no ax to grind. The justice lawyers that typically are in the case has not been involved in the underlying dispute and have no special reason to cover up or be a participant in covering up things.
34:06 - Obviously there is an overall temptation in the government to not want to come forward and make clear that they screwed this up.
34:20 - That’s a human tendency to not want to admit your mistakes or broadcast your mistakes.
34:26 - But we find across the board that in most instances, the government tries to make arguments that are facially valid, and we can look at them and analyze whether they’re facially valid or not.
34:46 - There’s got to be something more than just speculation to get you into discovery.
34:52 - There’s gotta be some factual basis. What I was finding in those cases we’ve been talking about was the something more that led to getting you discovered.
35:05 - We’re not gonna give discovery and let you open the coffers to the government files in every case, it was just bogged down the government so they could not function if we did that in every case.
35:17 - So you’ve got to have the something more something suspicious, something that points to being able to put the burden on the government.
35:29 - And there’s gotta be something that would lead a judge to think that it’s doing something suspicious before we’re going to put that burden on the government of going through all that.
35:41 - And many plaintiffs will try to do that, but almost always I see what they’re doing is just speculating that, “Well, there must be something there,” and they really have nothing more than speculation.
35:57 - They’ve got to have some basis for the speculation before I’m gonna authorize the discovery.
36:03 - But I understand in the back of our minds that it’s possible there’s something there.
36:08 - So plaintiffs frequently then will say, “Well, look at it in the camera. ” Looking at it in camera is not a really great basis ‘cause that’s really just substituting my judgment for the government’s judgment.
36:22 - It’s looking at the documents themselves that they’re choosing to give me.
36:26 - That’s not any really answer to whether or not the government is hiding things or not disclose things that they should be disclosing.
36:34 - I’m looking at things in a vacuum when I’m looking at them in-camera and the plaintiff is getting to see what I’m seeing but the public isn’t getting to see it either.
36:45 - And it’s an uncomfortable situation that I’m in to just think that’s a way some magic wand and look at it in camera.
36:53 - I don’t think that’s a great way to do FOIA cases.
36:56 - I very rarely want to look at things in camera ‘cause I think that’s just cutting the plaintiff out of a process, totally, for me to look at it in camera.
37:07 - That’s not a great answer either. - And I’ve seen you get pretty frustrated with plaintiffs to come into court, citing nothing but anonymous source news reports as well.
37:19 - I think that’s (indistinct) speculation and– - Well, I try to resist when people tell me well, based on some stories in the Washington Post that I try to not just knock the post, but I don’t credit news accounts, you know these accounts are not evidence.
37:36 - So, you know, I try to resist saying I don’t believe what I read in the Washington Post I’d just say, I don’t believe news accounts although I read the post every day, so I couldn’t say that I don’t read news accounts as evidence.
37:53 - You need something as evidence not just a Washington Post story to say that you have evidence.
38:03 - - What is the respective role as you see it both from your experience of being civil chief in DC and from the bench, what do you think and what might you recommend in terms of the respectable of the responsive office and Agency Council and the Justice Department in these cases? - Well, hopefully they work together.
38:33 - Agency Council are closer to the agency people that are working in the documents that know about the documents that understand the document for understanding the record keeping system.
38:47 - And hopefully they can educate the justice lawyers.
38:50 - The justice lawyers hopefully understand the judicial process better, know the judges better.
38:58 - If they practice at our court, they probably have an inkling about the judges and how the judges have ruined another FOIA cases to know the kinds of things that appeal and don’t appeal to the judges may even know some of the case law the judges rely on, know that there are certain judges that you might as well not make that argument to (laughing) and other judges you might wanna, you know look at what you’re arguing and certain approaches I wanna take.
39:31 - I mean, having written as many FOIA opinions that I have now, you know when I first came on the court, I think my first five years with lawyers started exciting me to myself.
39:45 - I was quite alarmed. I said, “Don’t you have something better than that?” ‘Cause I really pointed, you know, some real judge that decided so the case, you know, and decided this and it was just me and some lawyers were very delighted.
40:01 - So I found something I had said before that they thought I’d wanna do that again.
40:06 - But I was hoping they had something better than just citing me, but I find lawyers really like it when they find something I’ve said before.
40:13 - They think I ought to say the same thing again, you know well, lawyers do that and lawyers find where I grew in this FOIA extension before I guarantee it I got the same invention.
40:25 - They’re gonna cite where I’ve said that before you know, and I had some pretty smart lawyer actually ‘cause I don’t wanna contradict myself.
40:34 - So, you know, the agency lawyers really don’t have that kind of depth of knowledge of how to present the case that the justice lawyers, the US Attorneys do.
40:43 - Even the US Attorneys have a more in-depth knowledge of the judges here.
40:49 - Sometimes the justice always do if they give a lot of FOIA cases here, they’ll know very well which ones are gonna appeal to me and which ones like it.
40:59 - (indistinct) to myself and I do try over the years to not contradict myself.
41:06 - I think many judges try to do it that way. So it’s smart for a lawyer to decide to judge themselves ‘cause I don’t wanna be inconsistent with my own prior cases.
41:16 - Agency lawyers don’t know if the judges have that mindset.
41:26 - I’ve just shot myself more (indistinct) in revealing that little tactic.
41:31 - - Well, you know, sometimes you’ve been overturned too and it would be a bad idea that it’s like you on a principle (laughing) every so often.
41:43 - But you’re known as an expert in having developed a lot of different areas of national security law as well, both on the District Court and on the Foreign Intelligence Surveillance Court.
41:57 - So between fights and the Classified Information Procedures Act the Foreign Sovereign Immunity’s Act and other areas of national security law Guantanamo but one former very senior national security lawyer once posited to me that he thought that FOIA in some ways was what really gave rise to important elements of national security law across the spectrum especially when it came to request to the national security agency during the Vietnam era.
42:37 - I mean, what do you think of that instance? - Well, I think it’s true.
42:42 - I mean, I think that for the longest time, you know (indistinct) was never thought to be subject at all to any open records, production or to any kind of production of any records to the public.
43:01 - And when it became subject to FOIA was a rude awakening.
43:08 - The NSA and CIA are extremely conscientious about their duty to protect national security secrets.
43:21 - And I find both of them to be extremely helpful to the Court in trying to marshal the arguments that are very helpful to the court so that we can understand the issues.
43:39 - I sometimes get several briefing on those kinds of issues.
43:48 - I find that across the board, they are excellent lawyers.
43:53 - They provide excellent help. I think when I do seminars for judges for the Federal Judicial Center, and otherwise my concern is that many judges think that you just give blind deference to the security agencies.
44:12 - And I did not think that’s what Congress ever intended and I don’t think that’s what the constitution envisions that we have to give deference to mention security concerns, but it’s not blind deference.
44:27 - We have to look at the issues, we have to study what the arguments are and we have to decide ourselves under Article 3 we’re judges, we make independent decisions and some of these issues are tough.
44:44 - I think that we have to make sure we know that what they’re doing is right and that it’s not for some nefarious or political reason but it’s for some valid national security reasons.
44:58 - And I have never found that when I got to the bottom line that I could not get to the right result with the concurrence of the national security agencies sometimes with having them reconsider where they were with my thoughts in mind, as well as their own.
45:22 - But I don’t think that we’ve ever gotten the loggerheads that could not ultimately reach a result that we could both live with.
45:35 - But it takes some effort and some work, some of those cases are criminal cases where and particularly in some of the terrorist’s cases, the judge has a very tough task in criminal cases in particular where you have to follow the Classified Information Procedure Act and those are very tough issues about national security.
46:06 - In FOIA, it’s not as detailed or as tough to do because the statute is more deferential but not totally deferential to the clip, the classified information that’s the security agencies want to protect.
46:26 - But these are difficult issues and I find that across the board that they are conscientiously trying to do the right thing.
46:39 - I know that the ACMU and the national security practitioners on the other side are very useful in helping them keep on the right track.
46:55 - The fines, the court, for example, has found these advocates lawyers that are participating in the process now to actually be helpful to the process, not a hindrance to the process.
47:08 - And I think that is ultimately going to turn out to be an improvement to the public perception of the fines of court and to the public perception that the fines of court is not just a rubber stamp for the government, but it is part of a judicial process.
47:25 - That will be more fair and perceived to be more fair, ultimately.
47:29 - And transparency in government is important.
47:34 - And it’s important it’s fines of court is going to be (indistinct).
47:41 - It has to be partly look like it’s a court and a court can’t be everything; can’t be secret.
47:50 - If it’s a court. - Right, and circling back to Mr. Ferriero’s introductory remarks where President Johnson had sighted national security concerns, you know when FOIA was passed too, and as I mentioned these other bodies of law, and of course in addition to those, of course these aren’t the only ways to shed light on government conduct.
48:19 - One of your first cases as an assistant United States attorney was a case called Berlin Democratic Club which has brought up some difference too, can you quickly explain what a Bivins case is and what happened in BDC? - Well, in the Berlin Democratic Club case, the Army was accused of spying on anti-war dissidents in Germany and other activities that were, during the Vietnam war and engaging in other improper surveillance activities overseas and one of the first principles that was litigated in the case was, “Does the constitution follow the flag?” And the Chief Judge of this Court clearly ruled that the constitution followed the flag and if the United States government is doing something overseas against the United States citizen the constitution is right there with that US citizen.
49:23 - If the US government is doing it, the constitution follows the flag and that US citizen rights against US government in that overseas setting.
49:33 - And we went from there and we started looking then at what the US government had been doing to US citizens in Germany.
49:42 - And it turned out contrary to what I told the court in the first instance, I found affidavits from generals and others that turned out to be false.
49:56 - And I learned a huge lesson from that case.
50:01 - And it ended up taking 13 trips to Germany was my own investigation ordered by the Secretary of Defense, ended up quite a Donnybrook that lasted for several years before we finally came to a settlement between the ECLU and these (indistinct) out of that case with the settlement satisfactory (indistinct) as the government that ultimately settled that case some years later.
50:31 - With the total reform of what the Army had been doing in surveillance activities in the Vietnam era.
50:41 - - Another Seminole example, but from when you were on the bench I think all I have to say, the case name, tell us about Cobell.
50:50 - - Well (laughing) Cobell was a case where…
50:59 - It’s one of those cases where, it was filed shortly after I joined the bench.
51:03 - And I knew from the beginning, it was going to be a major case; the 500,000 class action case and 500,000 individual Indians, the money was the Indian sold money that the government was holding in trust for the individual Indians.
51:21 - It was land and timber and oil (indistinct) that the Indians loaned and the money was held the Indians money, it was their money held in trust for them by the Department of Interior.
51:34 - The department of Interior had records, but had (indistinct) the records, could not account for the records could not account for who they were paying and what to and from the outset I was dumbfounded ‘cause I had spent my career really after the Army in the Justice Department.
51:52 - And just for two years, was constantly lied to by Justice Department, Interior Department lawyers and did not believe they were lying.
52:02 - I was being told by the Indian employers they were lying and did not believe it until finally I figured out they handed.
52:08 - Like I was just dumbfounded. When I finally figured out that I had been told all these lies you don’t wanna lie to me for two years and think you’re not gonna pay a price. (laughing) so, the price ended up being the first Secretary of Interior, Secretary Treasure held in contempt.
52:30 - It was the first time I think we have shown that it was the first cabinet member held in contempt by a member of judiciary.
52:39 - I think in history, it was so egregious that the administration could not even appeal my contempt finding.
52:50 - The administration changed and I felt that the new administration was coming (indistinct) they didn’t.
52:56 - So I held the Secretary of Interior in contempt.
52:59 - But the result of that was although I was confident what I did, the Court of Appeal decided it’s better to just remove me from the case ‘cause I was too pro-Indian.
53:13 - And the final result was the case settled on Appeal and the Indians got $3. 4 billion which I thought to me proved that I had been right all along.
53:28 - The Indians were screwed out of more than 3. 4 billion, but the government cost them 3. 4 billion to make the case go away.
53:38 - The Indians wouldn’t have the 3. 4 billion if I hadn’t forced the government to produce all the documents they did produce.
53:46 - I will say that. - And for perspective, that 3. 4 billion as the largest settlement the US government has ever entered into, at least certainly at that time, I’m not sure if it’s been– - I think it’s still the largest settlement ever by the government; 3. 4 billion.
54:04 - - Yeah. - And what the government was so scared of it was the money, obviously.
54:12 - - Right, that’s a chunk of change. For everybody watching there is a documentary on the Cobell case called the 100 Years that chip cycled off Netflix after two years.
54:25 - But I’m told that you can still stream it on PBS until March 21st, it’s a fascinating case.
54:31 - But judge, as we get closer to the end, we’ve talked a lot about executive branch and obviously the Congress and the courts are subject to some different rules, you know should Congress or the courts be subject to greater transparency law? - I’m doubtful.
54:58 - The courts are very open, most of our proceedings are open, we really have to justify closing anything.
55:06 - And I think, you know we really did very little in camera and we have to justify anything we’re gonna do in camera or ex parte.
55:21 - I think that in Congress mostly it’s open. They have very few hearings that are not open.
55:31 - But you know, I’m pretty satisfied with how the courts and Congress are doing.
55:37 - I mean, there always gonna be backroom deals but I mean, you can’t.
55:46 - I don’t perceive that to be anything that would be cured by legislation.
55:53 - I may be wrong, I don’t know if there’s (indistinct) I haven’t seen it in legislation but I thought would actually cure anything.
56:01 - I didn’t think in terms of, there’s a lot of talk about whether the Supreme court should televise their proceedings.
56:09 - I have been privileged to talk about that with some of the members of the court.
56:14 - And I will tell you upfront, I think that the members, some members of the court, I’ll put it that way have a valid concern that it would impact the way they use arguments now.
56:30 - They have a small bar that they use the arguments with that small, very insular bar.
56:44 - As I use the arguments as a way to talk about themselves with the amendments to their bar.
56:50 - And they really it’s the first discussion I have among themselves of the case.
56:56 - They don’t talk among themselves and so they have the over argument.
57:01 - They don’t go lobby each other about how they’re gonna do the case until they hear the lawyers.
57:06 - And they have a session after the oral argument where they vote and they assign out the opinion.
57:15 - And the opinions, majority or minority and that’s right, if the oral arguments probably that Friday of the following week.
57:23 - And so that’s the key time; that’s all key to their argument and they use the argument about themselves and having these down to the lawyers some of the questions traditionally have been to bring up points they wanna make to their colleagues.
57:40 - And they’re using the argument to make sure they’re getting those points across to their colleagues.
57:46 - So the argument is in a way that they use it as part of how they’re gonna take positions in conference with their colleagues, if that’s part of how they use the argument.
57:58 - And the experienced members of the bar know that’s how the argument is being used and they’re practicing their arguments (indistinct).
58:09 - Now, if you’re Ford motor company and you have an argument there and millions of people are gonna be watching that argument, are you worried about those few people that care about how the case comes out or are you worried about the 20 million people that are gonna be watching it on TV? And I tell you Ford really care more about that 20 million people to this little case.
58:40 - And the Supreme court justice is, I think they’re worried to death about what’s gonna happen to their argument.
58:50 - So I really understand why they’re reluctant.
58:54 - I understand the argument on why they’re reluctant, some of it.
59:00 - I think that from what is it that is happening from the pandemic and having these arguments on tape or arguments on audio tape is kind of interesting.
59:18 - I think that there’s been some speculation that the gender justices it kind of liked it because they get some automatic times that otherwise it was time to squeeze in, hard to squeeze in your questions.
59:32 - Not everybody gets some limited amount of time.
59:35 - It seems to have loosened up, thanks to our Justice Thomas now I had some more questions, if he ever has.
59:44 - It sort of demonstrates the fallacy of the old school idea that justice Thomas was just a clone of justice and many more people now realize Justice Thomas is actually brilliant and has a mind of insolvent and thanks for himself and demonstrate ‘cause it’s a question you’re asking if people now realize that he’s a leader in his own right and thinks it’s a pretty deep thoughts for itself then he demonstrated to Carson (indistinct) which surprises some people big enough to me.
60:24 - I think that this whole debate is pretty interesting question.
60:30 - I can’t see if the Supreme Court agreed to ever television one or they would agree to delay the audio.
60:39 - I don’t know, maybe progressions I would do it I’m not so sure if the court is ready for that yet either, frankly.
60:50 - From the public point of view, I sorta think the public has a better understanding of the Supreme Court from this experience ‘cause they understand better that these are serious minded people that looked at the issues (indistinct) don’t look at it as politicians that look at it as serious legal questions that are looking at serious legal issues and five to four votes don’t really mean what the public perception is of what five to four votes mean.
61:27 - These are tough questions that they’re dealing with, it’s pretty vulnerable.
61:35 - - Sticking with the courts, but shifting both in the level of the court and from civil to criminal looking at the traditionally very secret grand jury process numerous cases, including several of years quote the adage that there’s a tradition in the United States, older than the nation itself that proceedings before a grand jury should remain secret.
61:58 - Last year was a big deal when Attorney General Barr wrote a letter to Congress citing the rule of criminal procedure Rule 6E about grand jury secrecy for saying why parts of the Mueller report couldn’t even be turned over to Congress.
62:15 - But you would held in the case in 2011 in Gold Cutler that a district court has inherent powers with respect to grand juries and its special circumstances can justify the release of grand jury materials outside the balance of Rule 6E.
62:32 - In that case you ordered president Nixon’s grand jury testimony and some other materials to be released.
62:38 - How did you come to that conclusion? - Well, I thought that traditionally there is an inherent power in the court that should allow historical records to overcome the 6E justification for keeping sealed.
63:05 - It was so unusual to have a president actually testify in a grand jury, Nixon had testified in the grand jury and it was almost all of the participants were dead by the time that the case came to me as Chief Judge of the court.
63:22 - And it seemed to me that I should have the inherent power to release historical records like that to the public.
63:30 - And that the public should have the right to see what had happened in the criminal case of Nixon.
63:37 - And the Watergate people that were… All of the basic participants from them (indistinct) and the public was still very interested in what had happened in Watergate and whether Nixon was guilty or not guilty and all the issues many in the public were still very interested in.
63:55 - So it seemed to me as the Chief Judge of the court overseeing the grand jury should still have the power to do it.
64:02 - And so I relied on that inherent power of the court and ultimately I did release the transcript of Nixon’s testimony and it was released.
64:15 - In subsequent litigation by others who then sought other material for grand jury.
64:23 - He had another case that I issued three opinions in 2011 then on the same day, and in one of those called the– - 2017.
64:32 - - 2017, whenever it was. And one of those in McKeever, I did not release (indistinct) and he appealed and ultimately the Court of Appeals found that this special circumstance that I used in the Nixon case was not valid.
64:53 - That courts have no power to ever violate 6E.
64:59 - So although my theory had been adopted by the second circuit, the seventh circuit and I think the 11th circuit, had all gone with what I did the DC circuit had gone contrary to me.
65:14 - So my own circuit abandoned me and three other circuits affirmed me but the Supreme Court went the other way.
65:23 - And luckily for me, Justice Briar involved people, wrote a separate opinion and in well, you can quote what Briar said, ‘cause I’ve gone off.
65:36 - I think you have the quote unquote Briar said in (indistinct) the separate concurrence.
65:43 - - Yeah, he issued a statement regarding (indistinct).
65:50 - I wanna quote you first then I’ll quote Briar and then I think we have to turn it over for a question or two.
65:57 - Because McKeever West decided I think because we released three of these opinions in the same day West only published one of them.
66:07 - McKeever was not at which all pontificate I think McKeever was the most important both because he went to the Supreme Court but also because of the content of the actual case there was a non-Watergate case.
66:20 - There was a fascinating fact pattern and you dropped in a footnote, I’ll quote.
66:25 - “It is antithetical to our system of government to say that some class of public records is forever and always off limits, even from consideration for public release even after the underlying practical needs for secrecy in the records has long since left.
66:42 - In a constitutional democracy that values openness and transparency in government records no matter how sensitive it is imperative that the court look to the underlying purpose of any rule calling from nearly unqualified secrecy of a class of records for perpetuity. “ Now justify (laughing) it’s beautifully written.
67:06 - Justice Briar seems to have agreed that Rule 6E deserves another look.
67:12 - He said; whether the District Court retains authority to release grand jury materials outside the situation specifically enumerated in the rules or in situations like this, is an important question.
67:24 - He says, it’s one that I think the rules committee both can and should revisit.
67:31 - - Well, as a result of that invitation I got my current Chief Judge Beryl Howell and I have sent a letter to the rules committee of the judicial conference, the US and they have agreed in April to take up this issue of whether 6E should be amended and we signed a justice prior as our justification for why we think and using the language that Adam wrote for me that I signed, without intending (laughing) (indistinct) in the letter that Beryl and I sent to the rules committee saying we should have been (indistinct) authorities that I sold to the three circuits but could not fill (indistinct).
68:18 - - I wasn’t gonna take credit for it, that was your opinion.
68:24 - But thank you, sir. I know that we’ve run time, we can talk about this for hours and syllabus, if you will.
68:36 - Judge Lamberth, you’ve been a fiery presence here as well and I guess to circle back to another Washington Post article recently talking about the debates in the white house about whether to release (indistinct) and (indistinct) reminded us of the 2016 statement by Josh Earnest who has been President Obama’s Press Secretary who posited that there’s really no constituency for government transparency except the press.
69:08 - I think we’ll leave it to the next panel to debate that proposition.
69:14 - I think we both would take issue with that.
69:17 - If anybody has questions and if there’s time I’m sure you’ll take them, but our hour is running.
69:23 - Thank you, Judge. Thank you everybody for allowing us to be with you today.
69:32 - (indistinct) - Martha, go ahead please.
69:35 - I think we have a couple of questions for the judge.
69:39 - - We’ve been keeping track of the chat. We have one question; does the judge think the 25 year limit is being enforced for records in reference to B5? (indistinct) - It should be, and I have a template cases now where I’m trying to force it.
70:07 - - Thanks and there is a follow-up to the question about congressional records.
70:15 - How about Capitol police, should they be separate to FOIA? - I don’t know.
70:27 - I don’t think I’ve ever ruled on the issue and I probably will get it now. (laughing) I have the first one, you know I have the (indistinct).
70:40 - Just before I came on this call I ordered the government to show me why I couldn’t release a tape that they put the evidence last week in my sermon case and they (indistinct) by Friday their response was that they can release it but we don’t have a way to put it in the record.
71:01 - And I just signed an order to make it public.
71:05 - And there’s a big issue about Capitol police tapes has to be under protective order and want to be public.
71:14 - I better not get into all that but I just made things public.
71:19 - They didn’t think they made public so I better not get into that instance.
71:24 - Stuff that I used in evidence to hold the Sherman in jail I made public and I didn’t care what they said.
71:35 - (indistinct) in evidence to the criminal case I didn’t really care where it came from.
71:41 - They put it in a criminal case that I was gonna use it.
71:44 - So I’ve (indistinct) to make it public. - Okay, I think our last question has to do about the consequences for agencies that simply stopped processing FOIA requests and ignore statutory deadlines whether during the pandemic or otherwise.
72:03 - - Well, it’s a problem because you have to figure out I mean, some of the agencies where they have people that would do processing of particular classified FOIA that were only older employees who really were most subjected to the pandemic and most at risk and did not have vaccine.
72:31 - And really we’re not coming to work at all and to not work from home with classified information.
72:37 - So it’s hard for me to say that the agency had to make some tough (indistinct) in conditions that they were really putting their lives at risk.
72:48 - So, I mean, you really have to go agency by agency and what personnel they have.
72:53 - It’s a very intensive inquiry to what you should.
72:57 - You certainly can’t do it across the board but what you can do with the particular agency you’ve really (indistinct) inquiries as to how they can cope with the pandemic.
73:09 - It’s not an easy answer. I mean, I have cases where the agency convinced me that the people they would need to actually work on it.
73:20 - There was no one that had familiarity or could have familiarity with the documents that you know, would know about that kind of classified information that was put safely actually (indistinct) come in and do the work in the classified settings that they need to do it again because they weren’t gonna take all those classified documents to their house.
73:44 - There was no way it was gonna get done. I could understand that.
73:50 - But they didn’t have to show that, I wanted them to say you can just stop.
73:58 - - Martha, we started with a quote from judge’s opinion in limbo a few years ago and I suppose we can close with it too on exactly that point.
74:09 - A judge said at one point, “Courts go to great lengths to protect the rights of FOIA plaintiffs.
74:15 - Individual citizens who seek to shine the light of transparency upon the operations of their government. “ Sometimes they prompt the revealing of government misconduct.
74:27 - Oftentimes they endeavored to research a topic of personal interest to fulfill a historical curiosity and they may not be satisfied by what it’s for me versus what it could help.
74:37 - In the process, a numerable resources are poured into the balancing of interests of justice that apply in each case.
74:44 - And I’ll wrap up selfishly with a controversial statement that, you know it’s certainly true that democracy and accountability are not necessarily efficient but I’m being marginally sarcastic when I say, “Show me an efficient government and I’ll show you a society that you probably don’t wanna live in. ” There’s a take from that, which you will it’s a whole other conversation that we’ll be happy to come back for but that’s my last word.
75:19 - And thank you all again. - All right, terrific.
75:24 - Thank you, Adam, and please (indistinct) everyone to thank the judge for his time today.
75:31 - It was a very robust discussion of Open Government and the Judicial Landscape, given us a lot to think about.
75:37 - I wish we had another hour because I think he would fill it very quickly, judge.
75:41 - So thank you again. All right, we’re gonna move to the next step of our program.
75:48 - Judge Lamberth has promised to stay on and observe.
75:51 - So we welcome your continued participation.
75:55 - Next on program, this afternoon we are honored to share a prerecorded video from Senator Patrick Leahy.
76:02 - As many of you know, Senator Leahy is a long-time leader in promoting government transparency and strengthening the Freedom of Information Act.
76:11 - Senator Leahy has worked with members on both sides of the aisle to enhance and expand American’s access to information about what the government is doing.
76:20 - He has authored several important pieces of open government legislation and chaired several hearings in the Senate Judiciary Committee.
76:28 - Of particular significance for my office, OGIS generally he is the author of the Open Government Act which in 2007 made the first significant reforms to FOIA more than a decade, the Open Government Act to force which became law in 2007 created our office, OGIS.
76:47 - So without further ado, we look forward to hearing Senator Leahy’s remarks today.
76:53 - - [Moderator] And as a quick reminder for the speakers please mute your phones and your audio will come through your computer speakers.
77:02 - Just a reminder, please turn on your computer speakers.
77:08 - - (indistinct) My friend David Ferriero, you know he’s the Archivist of the United States.
77:13 - He’s hosting this important Sunshine Week event.
77:18 - We both know David and I and everybody else that it’s the American people’s right to know what the government is doing.
77:24 - As in our FOIA, our nation is premier transparency law.
77:29 - That’s essential to protecting against abuses by the powerful.
77:34 - It’s in transparency tool, it empowers the American people as a role in serving as a checker against government wrongdoing.
77:44 - It’s the defining feature of American democracy.
77:50 - It reflects a simple principle that a government of, by and for the people cannot be one of those actions are hidden from them.
78:00 - Now, the COVID-19 pandemic has posed serious and unique challenges to government transparency.
78:07 - We see employer processing across agencies being dramatically affected.
78:14 - Now I’m gonna work with both Democrats, Republicans supporting understand how FOIA compliance has been affected during the pandemic.
78:22 - What lessons will be learned and what additional resources are required to improve FOIA processing? I’m increasingly concerned about another problem.
78:35 - This is one not caused by the pandemic. It’s the growing blind spot we have regarding private contractors engaged in government functions.
78:48 - I find a lot of Americans don’t realize that nearly 40% of our federal government operations are run by private contractors.
78:57 - And they’re not subject to FOIA. Think what this includes; private prisons, immigrant detention facilities that are right for the abuses of misconduct.
79:11 - And Americans have virtually no way of understanding nearly 40% of the federal government’s operations or where their money is going.
79:21 - So we have to eliminate this artificial blind spot (indistinct) transparency laws.
79:26 - We’ve got to apply FOIA to private contractors when they’re doing government work.
79:33 - And that’s not a radical idea. States across the country including Iowa, Texas, Kentucky, South Carolina and many others already apply their public records laws on private contractors doing government work.
79:50 - Think of it, it’s just common sense. If you’re being paid with taxpayer dollars to do government work well, you ought to be accountable to the taxpayers and the federal government needs to catch up to the States.
80:08 - So I’m gonna work hard at this Congress and legislation to expand FOIA’s application to private contractors.
80:17 - Without it, I’m afraid that America is gonna be faced with an expanding cloud over the federal government’s operations.
80:25 - So I wanna thank everyone who is attending this conference.
80:28 - Your important efforts to ensure we keep bringing more sunshine into the halls of power.
80:35 - That’s something we all want to do. - All right, thanks very much to Senator Leahy for those remarks brought to (indistinct) in that segment as well.
80:49 - So I’m very excited to introduce our next set of participants who will be discussing the current Transparency Landscape, a fitting topic during (indistinct).
80:59 - Full credit for pulling together this distinguished panel goes to our very own Kirsten Mitchell who not only is our compliance team lead for OGIS but is a former journalist herself who used state and federal records access laws to shine a light on how the government operates.
81:16 - She has an MA in Journalism and Public Affairs from American University and a BA in English from Mary Washington college.
81:24 - I cannot think of a more appropriate moderator for this panel than Kirsten.
81:28 - Kirsten (indistinct) is joined by Michael Bekesha Alexandra Perloff-Giles and Katie Townsend.
81:34 - Michael is the Senior Attorney for Judicial Watch a conservative non-profit activist group that uses freedom of information laws to obtain records related to activities of government officials.
81:45 - For over 11 years, Michael has litigated over 100 public records cases in both state and federal courts.
81:52 - He has a JD from the University of Missouri Columbia School of Law and a BA in Political Science from Northwestern University.
82:00 - Alexandra is currently an attorney with Gibson Dunn & Crutcher, media entertainment and technology group.
82:07 - And between 2019 and 2020 she was the first amendment fellow at the New York Times where she was the Principal Attorney in charge of public records requests.
82:16 - She has a JD from Yale Law School, an MA from the University of Paris (indistinct) and a BA in History of Art and Architecture and Government from the Harvard University.
82:27 - Katie has served as the Legal Director at the Reporters Committee for Freedom of the Press since 2014, where she leads litigation efforts and public records, court access and legal defense cases.
82:40 - Prior to joining reporters committee, Katie like Alexandra, was an Attorney at Gibson Dunn & Crutcher specializing in media and entertainment litigation.
82:49 - She has a JD from the University of Virginia and a BA in English and a BS in Broadcast Journalism from the university of Florida.
82:58 - Kirsten, over to you. I leave you in the hands of three attorneys, good luck.
83:04 - - Thank you Alina and thank you, Alexandra Katie and Michael for joining us today and thank you to Judge Lamberth and Adam Pearlman, that was a great discussion.
83:18 - And these types of conversations really do contribute to a shared understanding of government transparency.
83:26 - And as we know so well that it was just that shared understanding is so important to presenting and resolve any dispute.
83:36 - So I’d like to talk about a few things that Judge Lamberth said but first I’d like to jump into something that Senator Leahy said.
83:45 - He noted that federal government contractors make up an artificial blind spot in our government transparency laws.
83:56 - Alexandra, Katie, and Michael do you agree how big of a problem is this? And are there other areas besides private prisons and immigrant detention facilities that this affects? - Sure, I’m happy to start with that one.
84:15 - Certainly I think there are many, many agencies including the Department of Defense, Department of Energy all kinds of agencies use outside contractors and the ninth circuit just went on bonk to reverse an earlier decision regarding the consultant corollary.
84:33 - So that’s the question of whether the deliberative process privilege under exemption five would protect outside consultants and on bulk court ultimately recognized the consultant corollary, joining most other circuits who have considered the question.
84:52 - The sixth circuit is now the outlier in questioning whether outside consultants are covered by the privilege but there was an interesting split in the decisions including Judge (indistinct) Trump’s appointee and three democratic appointees, all in separate opinions coming out saying, “No, the plain text of the statute says inter and intra agency doesn’t say anything about outside contractors, independent contractors. ” And so it does allow for a kind of end run around FOIA given the vast amount of, you know, the quantity of government operations that are now outsourced to contractors at different times.
85:35 - - Katie, do you have anything to add to that? - Sure Kirsten, I would say a couple of things.
85:43 - I think particularly we’ve seen this become a problem in the context that we’re flagged.
85:48 - So then the private prison contracts and immigration detention facilities context.
85:53 - So it is a hole in FOIA and I think that we would certainly welcome steps on the part of the Senator Leahy and his colleagues to kind of plug that hole in conjunction with, I think, other FOIA reforms that we in the sort of requester community but certainly love to be the Congress tackle including things like public interest balancing and other recommendations that have been made to this (indistinct).
86:22 - - Michael? - Yeah, I mean, from my perspective, I didn’t really think about it as being that big of an issue.
86:31 - I guess I haven’t done enough FOIA work when it comes to contractors, but I always assumed a lot of those records were public.
86:40 - (indistinct) requests I’ve sent I’ve never seemed to have issues getting records that may be in the possession of a contractor.
86:47 - You know, I think there’s a definition of agency record or record at least in FOIA that may encompass those records.
86:58 - I’m not sure about this being fully litigated so, I mean, we always welcome improvements in the legislation, but I guess it wouldn’t be on the top of my priority list at this point.
87:10 - - Okay great, thank you. So let’s turn to Judge Lamberth and Adam Pearlman’s conversation.
87:20 - I wanted to ask specifically about one thing and then sort of open it up to your reaction.
87:26 - But one of the things that the judge said was he rarely wants to look at documents in camera, in FOIA litigation.
87:37 - And I think some people might be surprised by that.
87:40 - I wonder if you could talk about that. Do you think judges should be looking at documents in camera? And let’s go around the same way we did at the beginning.
87:54 - So over to you Alexandra. - Sure, yeah.
87:59 - As a FOIA litigants we think that the wind to get in camera review because it’s the only check on the otherwise unbridled discretion of the agency.
88:10 - I mean, it might be that their position is legitimate but we as the requester simply have no way of knowing.
88:16 - And so from our point of view I think in camera review helps ensure that the system works the way it does.
88:23 - And if it is done enough times to make the agency think that there’s a real risk that their assertions will be questioned and subject to scrutiny, I think that’s important.
88:38 - - Katie? - Yeah, I can just add to that.
88:40 - I mean, I think, you know the FOIA makes intima review an available tool at the discretion of the district court judge for a reason because it’s intended to be an aid to the court to exercise the courts de novo review of agency withholding.
88:58 - You know, I think we’re all mindful that judges have a lot of cases and they see a lot of FOIA cases and they probably don’t work FOIA and I don’t think we would take the position that in-camera review is appropriate in every single case.
89:12 - I think in many cases, I think however, in many cases I do think it’s appropriate and I think courts would benefit from it.
89:20 - You know, we tend in our practice to request (indistinct) review infrequently because we recognize that there’s an additional burden on a court on summary judgment.
89:31 - But at the same time, I think there’s certainly an appropriate case for it.
89:34 - And I would welcome for us to use, utilize it more frequently.
89:38 - I think that would be probably beneficial for the entire process, because you may be able to cut out perhaps one round of summary judgment briefing if you have an isolated set of documents subject to in-camera review.
89:53 - - Okay, Michael? - Let me follow up a little bit to some of what Alexandra and Katie said.
90:00 - Going back to something that Judge Lamberth said, and that is that he feels when he’s doing this in camera review that is he’s looking at things from a vacuum.
90:14 - So he sort of, I think he said something to the effect of substitute my judgment for the government judgment.
90:21 - And he is just looking at what the government is letting him look at and he’s looking at things in a vacuum.
90:29 - How do you refund to that? - Yeah, I guess I disagree with the other two panelists and agree with Judge Lamberth.
90:36 - My biggest concern with in-camera review is it really cuts the plaintiff out, the requester out of the process.
90:42 - I did see a process and I think it was the Eastern District of Pennsylvania where the judge allowed the requester to submit questions that the judge should be thinking about when looking at the records.
90:53 - But without that, the judges looking at it in the vacuum and the plaintiff really loses the opportunity to advocate for their position.
91:01 - I still will occasionally, as Katie said we try to do it infrequently as well.
91:06 - There are instances, especially when it comes to attorney client privilege or attorney work product where we think, you know, we’re down to one or two records and we’ll ask for an in-camera review, but you know the bigger problem I see and one that Katie also flagged was maybe we’ll cut out another round of summary judgment briefing.
91:26 - For us, my biggest frustration is the fact that we have numerous rounds of summary judgment briefing.
91:33 - You know, the government if they fail to satisfy their burden the first time around, we think that should be it; that the government shouldn’t get two, three, four or five bites of the apple, because the lie is clear the government’s burden.
91:46 - If they can’t satisfy it, release the records and let’s move on.
91:50 - And I think that would be a much better process than numerous summary judgment briefings or in-camera review.
91:57 - - Okay, Katie and Alexandra do you want to respond to that at all? - I guess the only thing I’ll add is I agree that it only makes sense when you have a narrow set of documents or single documents.
92:10 - So in some ways that, you know it’s a reminder to the requesters to submit good FOIA requests that are specific.
92:19 - And a judge is never going to order in-camera review if you have a kitchen sink FOIA request or, you know all email communications from 2010 to 2020 or something like that.
92:29 - So if you have a very narrow FOIA requests then I think it’s an inappropriate tool.
92:36 - - And I think I would just add to that that there’s always an asymmetry of information and litigation.
92:41 - I mean, the requester is always at a disadvantage in terms of what they know, they don’t have the records they don’t have the documents themselves.
92:46 - And so we’re doing the same thing that the court is doing in terms of relying on the agency declarations that were submitted by the agency.
92:54 - And so I do think that, I take Michael’s point that, you know, you’ve done lots of requests out of the process, but to some extent the requester is already pretty limited in terms of what the requester knows about the record anyway about the contents of the records are limited to what the agency does publicly in our filings.
93:12 - And so in that sense I do think it can be valuable to have, for purposes of the fourth exercise that’s a no go review over the folding to utilize that in-camera reviewing the tool.
93:24 - - Great, thank you. So I’m going to turn and talk a little bit about the new administration.
93:33 - The new administration is just more than 70 days old and we have a new Attorney General.
93:41 - And this morning at the Department of Justice Sunshine Week event, Attorney General Merrick Garland said, quote, “Open government and democratic accountability are the heart of (indistinct) and he thanks FOIA professionals across the government for close keeping the faith. ” There was a headline on the Reporter’s Committee website earlier this month that noted a quiet confirmation hearing with some positive engagements on media law.
94:15 - So I’m gonna start this question with Katie and then allow the others to join.
94:21 - Katie, can you tell us a bit more about the positive engagement on media law.
94:27 - And for all three of you, what would you like to see come from Merrick Garland as Attorney General? - Sure and I said, I’ll just take those both at the same time.
94:40 - I think in 2016, when then Judge Garland was and she said Garland actually was nominated for the Supreme Court.
94:48 - The reporter’s committee did what it does for every Supreme court nominee, which is kind of a ground up summary of their decisions that have affected that affects (indistinct) rights and particular video media law issues including FOIA and transparency.
95:02 - And one of the things that we saw and I think this is consistent that the Reporters Committee experience a little litigant, quite frankly was in his record Judge Garland had his decisions were in many cases very indicative of a judge that recognizes and strongly believes in the value of open government and transparency.
95:26 - I tend to think of his record on the DC circuit in terms of transparency as involving really key access to court records decisions, including that light’s decision.
95:39 - And more recently in 2020 about the Leopold against the United States decision the report have to do with the party in that case and its attorneys litigated it from maybe a little bit biased but it’s a really groundbreaking case in terms of the Commonwealth right of access and application of the common right of access to electronic surveillance materials Store Communications Act and Penry distract materials.
96:01 - And I think that opinion really talks about in really powerful terms that the importance of court transparency, public access (indistinct) the judicial process.
96:11 - On the FOIA front, I think there are a number of decisions that I’d be interested to hear Michael’s view on this but I think there are a number of decisions that I think of Judge Garland of record on FOIA issues like the (indistinct) against CIA case back in 2013 or ‘14, that dealt with Glomar response to records requested related to CIA program that the DC circuit reversed to District Court affirmance of that Glomar response in an opinion written by Judge Garland.
96:45 - I also think of the other case, these were the two FOIA cases that judge Garland actually pointed to in his questionnaire for the Supreme Court in 2016 will cause an action against FTC case which was the first case to incorporate who is a representative of the new video for FOIA (indistinct) data.
97:05 - A really important decision that I think was very pro refactor because it interpreted I think consistently with a statutory intent representative of the views needed to be brought appropriately brought (indistinct).
97:21 - So I think we were, you know, I do think that these are issues that based on his judicial records that these are issues that Judge Garland cares about, the Reporter Committee, along with our colleagues at the Knight First Amendment Institute at Columbia University, we see no time.
97:35 - Sent Judge Garland a letter just last, oh now it’s Attorney General Garland I don’t have to get used to that, Attorney General Garland, a letter just last week urging him to do what he indicated he was going to do.
97:49 - In his confirmation hearings where he mentioned the importance of FOIA and transparency just to take some steps I mean really pointed to three broad categories and steps, we would love to see the Department of Justice take under his leadership which includes adopting more stringent standards for DOJ defending agency positions on litigation particularly in areas with civil harm provision encouraging additional proactive disclosure things like visitor logs, agency, head calendar things that get requested really frequently that agencies can just proactively disclose and in improving other FOIA procedures and processes we all know that the Department of Justice and the office and NOIG carries a lot of sway in terms of what other agencies are doing.
98:36 - And so doing things like encouraging agencies to work more with OGIS in the mediation process is something that we included as a recommendation.
98:45 - So there are a number of things that we flagged.
98:47 - I think we would love to see the Department of Justice do under Attorney General Garland.
98:56 - - Great, Alexandra, anything to add? - I haven’t litigated in front of Judge Garland so I can’t speak as well as Katie to his record in that area more broadly, I would say, you know there are a small class of kind of political requests where you would expect the administration to matter for the outcome or for the position that the agency takes.
99:24 - So I’ll give an example. I just represented Senator Wyden and Representative Malinowski in an Amicus brief in a case brought by the open Society Justice Initiative against the CIA and ODNI, Office of the Director of National Intelligence for the ODNI Khashoggi report.
99:42 - Obviously that came outside of the FOIA proceedings and that is sort of about as political FOIA requests as you are going to get.
99:50 - I think that is the exception. I think the issues that we see most often in FOIA in terms of delay are not the result of sort of deliberate top down agency decisions to gum up the process.
00:08 - And so I am perhaps less optimistic that we’re going to see dramatic changes as a result of the new infiltration, whatever their sort of stated positions on transparency issues may be.
00:21 - - Right, okay. Before jumping over to Michael, I just wanted to jump in and say that the Khashoggi report is the report on the killing of journalists Khashoggi who was a Washington Post reporter.
00:37 - And the report is the CIA ODNI reports. Just wanted to put some context there for people who aren’t immersed in these issues as we are.
00:48 - So, Michael, what would you like to see with the new Merrick Garland as Attorney General? - Yeah, I’m optimistic that the Attorney General is going to take transparency and open government seriously.
01:05 - I do have some concerns from his time on bench on the DC circuit, there was in particular one opinion on deliberate process.
01:15 - He was part of the panel. He didn’t offer the opinion, but, you know I guess the good news is it’s kind of because of that opinion that the foreseeable harm provision made its way to Congress and passed, but you know the opinion there wasn’t all that favorable to the requester community.
01:37 - And so I liked to see… A lot of the things that Katie said I’d like to see from Attorney General Garland.
01:44 - I think other issues that hopefully he can address and have some guidance for agencies and control over the agencies that he has control over.
01:53 - You know, one issue is text messages. That’s an issue that we’ve really started to see a lot of, that some agencies don’t believe text messages are agency records.
02:06 - And so we think Attorney General Garland could, you know make it clear that all communications, regardless if they’re emails, letters, text messages and now because of the pandemic teams, WebEx, zoom and any other type of instant chat, instant messaging platform that those records are really being captured and preserved in response to Federal Records Act but also in then processing responding to in FOIA.
02:37 - - Okay great, yeah. Text messages are big things these days.
02:44 - So I wanted to, you mentioned foreseeable harm let’s talk about that a little bit.
02:50 - Of course, that’s the exercise in this FOIA processes consider the reasonably expected consequences of disclosure in each particular case.
03:00 - And I believe that something that all three of you have litigated.
03:05 - I’m wondering what’s the state of that is these days and I’m gonna jump this one over to Katie ‘cause I know it was one that she was eager to answer.
03:15 - So over to you, Katie - I love talking about foreseeable harm. (laughing) Yeah, so I think it’s important to point out and I know we’re gonna talk probably about the two most recent Supreme court decision involving the construction and interpretation of FOIA exemption, one exemption four the (indistinct) case and then more recently the US Fish and Wildlife Services case that dropped the scope of exemption five.
03:44 - I think it’s important to point out that both of those cases involved free 2016 amendment FOIA requests.
03:51 - So neither of them dealt with the interplay between (indistinct) the requirements of the foreseeable harm provision alongside these inventions.
04:02 - So I would like pointing that out because I think it’s important to know.
04:07 - The foreseeable harm provision was added to the act in 2016 and it places an additional requirement on agencies in terms of their showings to the district court.
04:15 - But I think more critically important is that it shouldn’t be affecting agency conduct at the processing stage.
04:23 - So what the foreseeable harm provision does it prohibit actually, prohibit agencies from withholding records that fall within the scope of an exemption, unless the agency reasonably foresees that disclosure will harm the interests that it intended to be protected by that exemption.
04:41 - And we know from a legislative history of the 2016 amendments that Congress particularly had in mind exempted by and the deliberative process privilege when it was thinking about a minute in that for the foreseeable harm provisions.
04:56 - There have been a number of district court decisions that…
05:01 - There are a number of District Court decisions in DDC and at CMY as well, and I think do a pretty good job actually kind of interpreting and applying the foreseeable harm provision.
05:12 - There was a case in 2019 or 2018 or 2019, Machado Amadist the Machado Amadist decision which has been a DC circuit which address foreseeable harm in the context of exemption five expect to a narrow set of documents.
05:28 - There’s another case pending before the DC circuit now that I argued on behalf of the Reporter City and the Associated Press just a month ago or so that deals pretty squarely with the application of foreseeable harm to different types of documents that will be held related to impersonation of members of the news media under assumption five or pursuant to assumption five.
05:50 - And so I think we’ll get more guidance. That’s a very long-winded way of saying that there are some cases that have been percolating and developments in cases at the district court level.
06:00 - We’re starting to see those at the appellate court level and I think we should, or I anticipate we’ll be getting some additional guidance, both from the DC circuit and most likely from the second circuit as well since there are some decisions coming out of the District Courts in New York as to how that provision should be interpreted and applied.
06:23 - - Michael, what do you think with regard to foreseeable harm? - Yeah I mean, I don’t have much to add to what Katie said.
06:32 - I think we’ve seen some good opinions out of the District Court and the DC circuit hasn’t really addressed the issue and, you know they should be addressing it soon enough in Katie’s case.
06:42 - And Judicial Watch has a case also where briefing recently began.
06:47 - So I think it stay tuned we’ll have a lot more to talk about next year on the topic.
06:53 - - Okay, well thinking about court ruling, let’s talk Supreme Court for a bit.
07:04 - We’ve had back to back FOIA cases of the Supreme Court earlier this month US Fish and Wildlife Service versus the Sierra club.
07:12 - The high court ruled that exemption five deliberative process privilege protects from disclosure in house drafts biological opinions that are both pre-decisional and deliberative.
07:25 - Even if the draft reflect the (indistinct) about the proposal.
07:30 - I’m wondering, how do you see this ruling affecting agency disclosure? And in fairness, the ruling just came out about a week and a half ago, maybe not even.
07:43 - So I may be asking this question prematurely but I’m asking it nevertheless.
07:51 - Alexandra? - I should say this was the case that was before my judge when I was clerking.
07:58 - So I’m probably somewhat limited in what I should say about it, but I think it’s a fairly idiosyncratic case.
08:06 - I mean, it’s interesting to me that the Supreme Court took it.
08:09 - I don’t think it gives us a lot of guidance on the issues that more frequently played requesters when it comes to exemption five.
08:19 - In other words, everyone agrees, but the standard is pre decisional and deliberative; there’s no dispute about that.
08:24 - And in that case, it was this sort of peculiar posture of where one agency’s job ends and the other begins, what is final.
08:35 - So I think in some ways our district or media that we can get to has more broad implications and we’ve had time to see that decision bear out in terms of sort of what it has done to exemption four.
08:52 - But I think it remains to be seen what impacts the [U. S. ] Fish and Wildlife Service case will have on exemption five but I don’t see it as sort of some game-changing.
08:59 - I don’t know if others do agree. - Yeah, I think (indistinct) was idiosyncratic.
09:09 - And I think during oral arguments there was some chatter going on whether the case was really a FOIA case or whether it was an Endangered Species Act case because it dealt with records that were required as part of the administration of the Endangered Species Act.
09:33 - Katie, I think I cut you off, I’m sorry. - No, I think I accidentally cut you off.
09:39 - I was just going to say that I agree, actually I think, it doesn’t seem to be a huge departure from the way that (indistinct) was going, it has been going for quite some time in terms of the interpretation of exemption five in the scope of the deliberative process privilege.
10:00 - And so I agree completely with (indistinct) that it’s the (indistinct) leader decision is far more impactful in terms of its practical ramifications on request.
10:11 - And again, I’ll just reiterate that both of them were pre-foreseeable harm.
10:16 - And I think the foreseeable harm provision has the most work to do in exemption five.
10:21 - So even, you know, how impactful the Fish and Wildlife Services and the interpretation of the scope of the exemption, how that will play out post foreseeable harm, I think it may end up not being particularly practically impactful for practitioners of FOIA process.
10:42 - - We’re about to talk about exemption for the Food Marketing Institute versus artists leader, which the Supreme Court in 2019 redefined the word confidential in FOIA’s exemption four which as you know protect both trade secrets and commercial or financial information obtained from a wide range of entities that is privileged and confidential.
11:10 - And the Supreme Court ruled that confidential means anything, quote, customarily and actually treated as private by its owners.
11:21 - And then a question that came up during oral arguments in that case, but I’m going to ask the three of you and that is, what is the stop an agency…
11:32 - I mean, not an agency, interview from customarily and actually treating as private everything that’s submitted to the government? - I mean, anyone who’s worked on a sort of regulatory matter in private practice, you know, responding to an inquiry from a state Attorney General or something knows that companies do treat everything as private.
11:58 - So that doesn’t entirely answer the question and that’s where I think to go to Katie’s point.
12:05 - I mean, in many ways, if we come back to what the foreseeable harm standard means and we ask what is the interest that is being protected by the exemption, we come back to the interest is in some sort of competitive department.
12:18 - So I think in a lot of ways, and obviously this remains to be tested, but the impact of the Supreme Court’s decision should be very minimal and we should end up back at something that looks like the competitive harm standard that we had before.
12:33 - But I think this comes up a lot in a variety of cases and you know, the real question, what is the government doing with these records, if it’s relying on them to regulate in some way then it doesn’t matter what the position of the company is in a certain way whether, I mean, that’s, you know it becomes part of the government regulatory process.
13:01 - - Michael? - Yeah I mean, I think it’s just a big concern and I think it’s what the court’s question was about but I mean, if anybody has ever seen, you know companies like to put on, you know we’ll use emails as an example, you know.
13:18 - Companies they usually automatically stamp all their emails confidential or privileged.
13:26 - Most people know that just because you have a stamp on it it doesn’t really mean anything.
13:31 - Now that may mean something and, you know there will be problems when it comes to transparency.
13:37 - But I think as Alexandra said, we kind of have to wait and see what the interplay is between the decision and how foreseeable harm, the new provision, you know how the courts look at it and just go from there.
13:51 - I think it’s too early to tell. - Katie, did you have the main thing you’d like to add? - No, (indistinct) either reporters, somebody filed an Amicus brief and the Oregon’s later case effectively sort of making this point that, you know, that was a pre-2016 amendment case that foreseeable harm basically does the work of the national parks task which is what the DC circuit has been both fined for quite some time, which is speeding and this requirement of competitive that they’re showing a competitive firm.
14:25 - And basically it’s saying that, you know maybe the court should desist and (indistinct) was reportedly acquainted don’t take the case, it didn’t quite work out that way.
14:35 - It would have been nice maybe if it did, I do think as a practical matter we’re seeing some problematic but I would say it’s problematic assumption four cases.
14:44 - There’s a case pending in the ninth circuit it was brought, or the request was made by Center for Investigative Reporting.
14:51 - It was mitigated by the Department of Labor right after the court issued a favorable opinion on the exemption for withholding in that case.
15:00 - The private companies, one of the private companies whose information was purportedly an issue intervened for purposes of appealing decision the Department of Labor wasn’t going to.
15:12 - And I do question whether pre Argus leader that would have been a step that they would’ve taken.
15:18 - I think it has broadened the scope of the application of the initial exemption, which is the question that courts are looking at first.
15:25 - And so I do think it is, I agree completely with Alexia and Michael, that foreseeable harm it obviously applies to the exemption four, it’s gonna be a problem.
15:35 - It applies to exemption four I think how that’s gonna play out, we’ll just have to wait and see.
15:43 - - Okay, let’s jump to the COVID-19 pandemic.
15:50 - Can you talk a little bit and not just through the FOIA lens, but sort of broadening out how the COVID-19 pandemic has affected government transparency.
16:03 - - Yeah, I can start with that. I mean, on the plus side, you’ve had a lot more especially at local levels, public meetings over zoom which means they’re a lot more accessible to the public.
16:17 - People are able to be eating dinner at home helping their kids with homework and able to check out what’s going on in a public meeting and even participate in some circumstances.
16:28 - So I think part of the pandemic has been helpful same with some courts around the country now their proceedings are more accessible online than they were before.
16:39 - So from that perspective I think the pandemic has helped further or advanced use of technology to make government more available to people.
16:53 - I’d say that’s the plus, the negative is FOIA processing is at a snail’s pace and it probably was beforehand but you know, where I would have 500 pages reviewed by an agency every month I now have 300 pages being reviewed every month.
17:13 - And if you have a couple thousand pages that need to be processed, you know these cases are gonna go on for two, three, four, five years.
17:22 - And by the time you get to the end of it you’re gonna forget what you even asked for and why you were interested in it.
17:28 - So, I mean, I think that’s problematic that being at the federal level.
17:32 - At the local level, you had places like DC where they essentially suspended the time limits that the agency had to respond to FOIA requests which means you couldn’t sue over the requests which means practically speaking FOIA was shut down.
17:49 - Montgomery County, Maryland has the same and other Counties around the country also.
17:55 - So I think the pandemic has been problematic I mean, on a lot of reasons but just talking about open government when it comes to FOIA, it’s really slowed down and made records less available to the public.
18:11 - - And so it sounds like good on the open meetings front but not so good on the open records front.
18:21 - Katie and Alexandra, what are you all seeing? - Yeah, I think (indistinct). (laughing) - Go ahead.
18:36 - - Okay, I’ll go. I think I did ask the question a lot and my response is sort of how has the pandemic not affected access and transparency? I think it’s really affected every aspect of it.
18:49 - And I appreciate Michael pointing out that it’s a bit of a mixed bag, actually.
18:53 - There are some positives, I think the live streaming of appellate proceedings not just the live stream audio of the Supreme court the live stream audio and among the federal courts of appeals, consistently.
19:07 - We’re seeing telephonic access to district court federal district court proceedings and civil cases which, you know, I will say as a member of the public and as an attorney, it’s great for me to be able to listen to a hearing that’s going on I don’t know, in the Southern District of California or the Central District of California which I would have never been able to hear before.
19:27 - So I think those are all good positive things for the public.
19:30 - Even on the court access side there are some areas where the pandemic has been pretty devastating though for public access I would say, particularly among state trial courts particularly in the criminal context it’s made very difficult for reporters to report on issues arising out of requests to be let out of prison while (indistinct) pending because of COVID.
19:59 - So a lot of those that have created some problems I would say on the meeting side, again it’s a bit of a mixed bag.
20:04 - You do have some local agencies that are using zoom really effectively and actually broadening participation.
20:10 - You have other communities that don’t have those kinds of resources that don’t even have broadband in some cases.
20:15 - So it’s a real mixed bag. I would say on the FOIA front, there are still shining lights, perhaps I think in terms of FOIA and state public records it’s been difficult.
20:27 - I think FOIA there was already a backlog. I think if you look back at the backlog from the 2016 shutdown, which was about a month long (indistinct) backlog that we’re still seeing the impacts from, currently.
20:41 - And so you think about FOIA processing being delayed in some cases there are some agencies that are still operating, or we’ll say that they’re operating their FOIA processing at 50% of what they were a year ago, I spent a year.
20:54 - And so you think of the delays and the backlog that’s just being built up it’s really terrifying to think about.
21:00 - I will note that as Judge Lamberth said during his talk with Adam that there is agency by agency.
21:09 - So, you know, we certainly saw as litigants there were agencies that operated on classified servers that had to shut down their FOIA processing that wasn’t screw with respect to all agencies.
21:21 - So it isn’t the kind of across the board but you’ve certainly seen things slow down I would say, pretty significantly everywhere.
21:27 - And that was also, Michael pointed out, that that’s the case the state public records level as well it has been it’s not just, you know, the Counties and States that have stopped sort of through emergency action, stop FOIA processing or stop compliance with the act which we have seen.
21:46 - But it’s also just sort of across the board the same kind of issues might be at the federal level people aren’t going into the office.
21:51 - They don’t have access to the record and it’s really flipping down.
21:57 - - Alexandra? - I agree with everything they both said I don’t have a lot to add.
22:01 - I think what Katie said at the very end about classified records is where I’ve seen the biggest impact at the federal level.
22:10 - So national security related cases, you know even if they’re already in litigation and there have been commitments to produce a certain amount the CIA will say they can’t go into the, you know security facility to review the documents then you’re at an impasse.
22:25 - And that might be one thing if, you know COVID lasted three months, but it’s now a year later and there has to be some other measure in place.
22:35 - - Okay, so I think one thing we need to turn it over to questions soon, but I wanted to ask you one more question before Martha pops on with questions.
22:46 - And that is various studies show both an increase in the number of FOIA cases filed in the last several years and also increased numbers of FOIA requests from businesses and first party seeking their own records.
23:03 - So people seeking records about themselves.
23:08 - That brings me to the question; is FOIA becoming less of a disclosure statute? And we’ll go Katie, Michael, Alexandra.
23:25 - - I mean, I don’t think so. I mean, we’ve certainly seen an uptick and I think it’s been pretty steady and consistent sharp uptick in the number of FOIA requests and in FOIA litigation under the Obama administration that went up during the Trump administration.
23:41 - I think, I suspect that will go up with the Biden administration.
23:44 - I think it’s sort of a trend that we will see increase.
23:48 - I don’t necessarily think that makes the statute or the act, you know, used by commercial requesters, for example.
23:58 - I don’t think that that makes it any less of a tool for public access to public transparency.
24:04 - I know my constituency as a lawyer or like Legal Director for the Reporters Committee as news organization journalist and we’ve only seen an increase in the interest of reporters in using the app.
24:19 - And I’d love to hear Alexi’s thoughts on that and heard from her time at the New York Times but I think that they’re really fantastic.
24:26 - And again, I might be biased but I think there’s really fantastic reporting that is coming, notwithstanding that the (indistinct) and the other problems that we see with just the processing and the procedures and the delay, the backlog and all of that notwithstanding all of that.
24:43 - There are reporters and news rooms out there that use FOIA incredibly effectively and do really excellent reporting based on that.
24:51 - So I think that it is still and will remain still a vital tool really for journalists moving forward.
25:00 - I think that with this influx of requests I think to keep it effective, make sure that it is effective and it’s serving its goal that the fact that there’s an increase in commercial work busters.
25:12 - I think there are other things that can be done with respect to processing, including increased resources towards processing that can help make the system more effective and more efficient.
25:22 - But I don’t think that means, you know, that just because others are using the act nutshell journalist, not just members of the public that it’s any less of an important tool.
25:33 - - Yeah, I think FOIA is a great tool that’s an imperfect tool.
25:37 - You know, I think we’ve done a lot of patchwork over the past 30, 40 years to improve the statute but no one’s really taken a step back to look at the statute as a whole and see if it’s still working.
25:49 - So I always encourage members of Congress and their staff to take a step back and figure out if we rewrote FOIA today, could we make it so much better make it more of a disclosure statute than withholding statue? I’m not quite sure there’s an appetite for that in the request of community as a whole.
26:09 - There’s definitely not an appetite for that within Congress but I mean, I think as Katie said it’s a great tool, it’s successful at times.
26:19 - I just think it could be so much more with some revisions if not a full rewriting, but also as Katie said additional resources not only, you know human capital but also the use of technology could really have the agencies really be able to respond more frequently and more quickly.
26:43 - I mean, the other thing I’ll just say is, there are a lot more records being created today than were being created when FOIA passed even 10 years ago.
26:52 - I mean, as I said, with email, text messages all other types of electronic communications you just have tons of records being created, new agencies aren’t equipped to handle that.
27:04 - And then I think a lot of the delays you’re seeing is because you don’t just have one letter being sent per day or a hundred letters being sent per day.
27:13 - You’re having thousands of emails being sent each day and the agency needs to figure out how to deal with it.
27:19 - Then Congress hasn’t given them the resources needed to deal with it.
27:27 - (indistinct) - I certainly agree that it’s a technology problem that the number of reference is vast, but also the capacity to search should be, you know also dramatically more efficient.
27:42 - I think the question you raised about sort of all these other people using FOIA other than journalists is that a problem? And I think there could be some you could imagine some solutions shy of reforming the statute that would help with the massive delay that that causes.
28:03 - So Margaret Kaka, Denver has written a lot about first she wrote an article called FOIA ink about the problem of commercial requesters.
28:10 - And then she followed that up with an article first and FOIA about the problem.
28:13 - The first person requesters and their different agencies for which those are different problems.
28:17 - So regulatory agencies like FDA have the commercial requests to problems.
28:21 - The immigration agencies like CDC have the first person FOIA problem.
28:28 - And you could imagine, for instance the sort of VIP access for news media requesters we already have the fee waiver system but a way to get a human being on the phone to address something, to move it through more quickly to sort of privilege what the statute is designed to do in terms of informing the public without necessarily sort of creating bright line rules about who gets to be a requester or not.
28:52 - - Well, that’s certainly an interesting idea.
28:56 - So we have one question via WebEx but I’d like to ask and this you’ve probably seen it in the chat but; does foreseeable harm play against the chilling effect in any way for open and candid (indistinct)? - I think that’s the agency argument every time, right? That it inhibits the candor of agency discussions, if all of this comes out.
29:25 - And then, I mean, I think it’s a real question for the request for community.
29:29 - We’ve talked about what’s the foreseeable harm standard means for exemption four, we think it’s easier how you show that, you know, what exactly is the showing that we expect of agencies for them to meet their burden of showing the disclosure would cause foreseeable harm, I think is a harder question.
29:45 - And, you know, when we litigate, we say all of these assertions are speculative and so forth but I think it’s hard to articulate what exactly the sufficient showing is on the part of the agency that disclosure would indeed harm the candor of deliberations, which is, you know, a valid interest protected by the exemption.
30:05 - - You know, I would just say on that deliberate process privilege in the civil discovery context and we’ve seen the DC circuit is different than it is in the FOIA context.
30:16 - You know, it’s not supposed to be that way.
30:18 - And so courts know how to handle, you know the exact issue and they do it in a civil discovery context and I would just argue that we have to get back to that when it comes to FOIA.
30:31 - I think the ninth circuit still treats deliver process privilege the same where you really look at the foreseeable harm of the decision-making process the particular decision being made and not this general idea that any decision-making process in the future may be.
30:48 - It may be detrimental to release the records because it is, it’s hard to figure out what it means to be acting in a fishbowl as one of the, you know as the agencies like to talk about, you know just watch a product case on to appeal that concerned final drafts of a statement by former Acting Attorney General, Sally Gates.
31:15 - And the question is, if her draft statement would be made public does that mean future attorney generals would be afraid to have opinions? You know, that doesn’t really seem to make sense but it may make sense when it comes to particular decisions especially for lower level employees.
31:39 - But once you’re a political appointee, you know it doesn’t make as much sense.
31:44 - So again, I think the courts know how to deal with this issue, we just need to get back to what the exemption was supposed to be.
31:59 - - Okay, Katie, do you have anything to add? - Yeah, I mean, I agree with a lot of what Michael said.
32:07 - I mean, I think that the common law is a little bit process privileged is what FOIA is supposed to incorporate.
32:12 - It’s been interpreted quite broadly in the FOIA context and really gotten away from even some initial if you look back (indistinct) DC circuit decision that really they’re intended to address the scope of the deliberative process for those like Coastal States, for example.
32:28 - Some of the factors the courts look at there, you know is the communication from someone who’s an inferior position to someone in a superior position.
32:40 - Those are things that can also go and it can be considered when you’re looking at the foreseeable harm provision you’re trying to determine whether or not it’s the harm that the agency is asserting is going to before, if disclosure is made is a harm to the decision making process because disclosure of this document is going to kill candid communication like this in the future.
33:04 - I think these are all factual factors that go into play, whether or not that firm has been reasonable whether the agency is reasonable for the agency to proceed that form.
33:15 - So I agree that there is an aspect of a foreseeable harm provision in the deliberative process context to the about bringing it back in line to what it was really intended to be, to begin with and has really just been expanded and expanded and expanded in the FOIA context, it’s what I would say, over the years.
33:34 - - Great, thank you. So we do have another question.
33:38 - Someone (indistinct) I’d be interested if the current panel has any suggestions on how to solve the processing delay issues for classified records.
33:51 - Do they seem judicial orders forcing staff to come in during the pandemic? Do they have ideas? - Well, I just wanted to clarify one thing which is to say that, just because an agency does FOIA processing or review on a classified server does not necessarily mean that those documents are classified.
34:16 - And I think State Department is a good example where they effectively shut down their FOIA processing regardless of the nature of the request in part because they were doing everything on classified servers.
34:27 - And that I think is a… I think they’re moving away from that actually.
34:31 - And I think that that’s one way you can help address this problem, you know of ensuring that not having you’re not requiring everything to be done in classified server is what’s being requested is in you know, those types of records don’t need to be stored in that way, for example that’s one way I would think to address that central problem.
34:57 - - Yeah, I mean, I’ll just say I think a judicial order is a last resort and you hope that you can work something out with the attorneys on the other side and it might not be the AUSA assigned to the case but a colleague who can go in and do some of the review.
35:13 - I mean, in the particular, you know, in the one case that I’m thinking of where this was really an issue I gather very few people are allowed at a time in the facility, anyway.
35:23 - So with what we know now with that COVID I think the risks are somewhat minimal.
35:28 - There was a sort of funny back and forth so I was told, “You don’t actually expect someone to go in. ” And I said, “Well, you do receive your paper every day, right?” I mean, someone is soaking into the printing press when we consider it an essential operation, it manages to happen.
35:43 - But I would hope that we don’t need to get to the judicial order part in most cases.
35:51 - - Michael, did you have anything to add? - I don’t have anything to add on that.
35:57 - - Okay great, thank you. So I don’t believe we have any other questions.
36:04 - Martha, do you have any others? - [Lamberth] Can I add one thing, Christian? - Of course.
36:14 - - I enjoyed this session and it’s always good to hear practitioners talking about the real nitty gritty.
36:20 - So that was a very nice discussion. I enjoyed all of that.
36:23 - - Oh, thank you so much. (indistinct) No other question? - [Martha] Yup.
36:36 - - Okay, thank you, Martha. Oh, there is.
36:44 - There is one other, so I think I will ask this and I’ll ask it about Alexandra and then I will turn it over to Alina for closing remarks.
36:54 - So this question is; then also does the contract corollary against the foreseeable harm (indistinct).
37:06 - - Yeah, I think this is a reference to the consultant corollary and I don’t think they’re in odd with one another.
37:11 - I think once the question of what is included in inter and intra agency.
37:15 - And then once the question is, even if you fall within the exemption, then have you also shown foreseeable harm that would result from disclosure? So I think there’s sort of two stages of the inquiry.
37:29 - - And not in (indistinct). - Okay, Alina, I’m going to send it over to you but I would like to thank Alexandra, Katie and Michael so much for this, I’m sorry we are not on the stage in McAllen Theater in person but perhaps the next time we will all be together.
37:52 - So over to you Alina. - Yes, totally agree Kirsten.
37:58 - I hope we can all be together next year. I hope everyone can join us in thanking our panel participants.
38:03 - It was a great discussion. I think we could also have gone another hour.
38:07 - So maybe next year we’ll schedule it for a little bit longer.
38:12 - David, do you wanna say a few parting remarks before we close up? - I just wanna add my thanks to the panel and to my favorite judge in the DC District Court and Adam we’re looking forward to being able to launch that biography here at the National Archives, Adams, so get cracking.
38:37 - Thanks to all of you who have tuned in and I hope you have learned as much as I have and enjoyed the conversation.
38:45 - Stay safe and hope to see you in person, I hope, next year.
38:54 - - Thank you David, I really appreciate it. I just wanna thank everyone who participated in today’s event.
39:00 - Thank for our virtual viewing audience for joining us for celebration of Sunshine Week at the National Archives.
39:06 - I would like to just give a special thanks to our amazing OGIS staff who was instrumental in planning and executing this great afternoon, a special thanks also to special assistant to the archivist, Maureen McDonald our Deputy Director of Congressional Affairs Sean Wharton, and to our WebEx special events and OGIS staff which is really (indistinct) for ensuring that everything ran smoothly.
39:30 - If you’d like to learn more about the work that we do at OGIS, please visit our website archives. gov/ogis.
39:37 - Read our blog, the FOIA Ombudsman and follow us on our Twitter handle @FOIA_Ombuds.
39:43 - Thank you again to everyone for joining us for Sunshine Week celebration and we hope you’ll will join us again next year.
39:49 - Stay safe, thanks everyone, bye bye. - That concludes our event.
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