Amicus Curiae Brief — Justice Justice v. Department of Defense (No. 08-125)

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No. 08-125

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

NATIONAL INSTITUTE OF MILITARY JUSTICE,

Petitioner,

Vv.

UNITED STATES DEPARTMENT OF DEFENSE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE NATIONAL SECURITY

ARCHIVE AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

MEREDITH FUCHS THOMAS B. WILNER

General Counsel Counsel of Record

THE NATIONAL SECURITY NEIL H. KOSLOWE

ARCHIVE ASHLEY W. WALKER

Suite 701, Gelman Library SHEARMAN & STERLING LLP

The George Washington 801 Pennsylvania Avenue, N.W.

University Washington, D.C. 20004

2130 H Street, N.W. (202) 508-8000

Washington, D.C. 20037

(202) 994-7000

Counsel for Amicus Curiae

the National Security Archive

WiLSON-EPES PrRinTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE THE

NATIONAL SECURITY ARCHIVE ............... 1

SUMMAh. OF ARGUMENT.......0...0.............008- 4

EER AIRE Rr a SO 6

I. The D.C. Circuit’s Holding Frustrates

the Objectives of FOIA and Other

Open Government Laws by Permitting

Federal Agencies to Receive Secret

Advice from Private Parties..................... 6

II. Any Potential Benefit to Be Gained from

Keeping Communication with Private

Citizen Advisors in Confidence Does Not

Justify the Court of Appeals’ Rewriting

of FOIA Exemption 5...........................0004. 8

III. By Granting Exemption 5 Protection to

Advice from Private Individuals, the

D.C. Circuit Encourages Avoidance of

Government Ethics Laws, Reducing

Recourse for Seeking Public Account-

SEIT sckspueiiiaveiabetinicetbankensbedaaebulieiueviesen 9

(i)

TABLE OF AUTHORITIES

CASES Page

Animal Legal Defense Fund Ine. uv.

Shalala, 104 F.3d 424 (D.C. Cir. 1997)... 7

Dep’t of the Air Force v. Rose, 425 U.S. 352

I ia ataeh pik caacccebaichlinal nied nsielienineticnouiisesion 4,6

Dep't of the Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001).......... 2,3, 8,9

EPA v. Mink, 410 U.S. 73 (1973)................. 4

John Doe Agency v. John Doe Corp., 493

U.S. 146 (1989) ............ aibisindddiubtlenaiaptiniains 9

NLRB v. Wyman-Gordon Co., 394 U.S. 759

ich dlidink tiie tdiieiiidiindisitaseriosbnden. accoiunupavence 7

Nat! Anti-Hunger Coal. v. President’s

Private Sector Survey on Cost Control,

711 F.2d 1071 (D.C. Cir 1983).................. 8

Nat Sec. Archive v. Dep’t of the Air Force,

No. 05-571 (RMG), 2006 US. Dist.

LEXIS 21037 (D.D.C. Apr. 19, 2006)....... 2

Nat Sec. Archive v. FBI, 759 F. Supp. 872

ED eicictiicaiincepsedibiostninidcdninsinetcponceee 2

Pub. Citizen v. U.S. Dep’t of Justice, 491

IEE si iacis islets iuktniicsiinnedsnbeasvivtinsnese 7

Renegotiation Bd. v. Bannercraft Clothing

i SE, Se TED cpiciccccisosabsnnsiieccinsvesess

Taylor v. Sturgell, 128 S. Ct. 2161 (2008)...

U.S. Dep't of Justice v. Julian, 486 U.S. 1

Saat otslaiciitaitan hha tsitdlicetbaheciiiiaebdanidinnese

U.S. Dep’t of Justice v. Reporters Comm.

for Freedom of Press, 489 U.S. 749

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STATUTES

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TABLE OF AUTHORITIES—Continued

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REGULATIONS

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OTHER AUTHORITIES

Detention, Treatment, and Trial of Certain

Non-Citizens in the War Against Terror-

ism, 6 Fed. Reg. 57,833 (Nov. 13, 2001)... 3

Coalition of Journalists for Open Govern-

ment, An Opportunity Lost, Part 1, An

In-depth Analysis of FOIA Performance

from 1998 to 2007 (July 3, 2008).............. 4

S. Rep. No. 813, 89th Cong., Ist Sess.

I aia cithckeedaddtbstcviesdhasdbyildiiasbeudeksidtincededia 4,6

IN THE

Supreme Court of the Gnited States

No. 08-125

NATIONAL INSTITUTE OF MILITARY JUSTICE,

Petitioner,

Vv.

UNITED STATES DEPARTMENT OF DEFENSE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

INTEREST OF THE AMICUS CURIAE

THE NATIONAL SECURITY ARCHIVE '

The National Security Archive (“the Archive”), a

non-profit independent research institute and library,

has a significant interest in the appropriate applica-

tion of statutory exemptions from the policy of broad

disclosure of government information embodied in the

Freedom of Information Act, 5 U.S.C. § 552 (“FOLIA”).

'The parties have consented to the filing of this brief.

Counsel of record for all parties received notice at least 10 days

prior to the due date of the amicus curiae’s intention to file this

brief. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

Established in 1985, the Archive collects and pub-

lishes documents on topics pertaining to the national

security, foreign, intelligence, and economic policies

and decision making of the United States. The

Archive obtains materials through a variety of meth-

ods, including requests for government disclosure

pursuant to FOIA. In 2007 alone, the Archive filed

1,813 FOIA requests with 91 agencies and pursued

363 agency administrative appeals. The Archive has

litigated over 20 cases challenging agency record

denials based on FOIA exemptions.” Amicus briefs of

the Archive have been considered in FOIA cases

before this Court, including most recently in Taylor v.

Sturgell, 128 S. Ct. 2161, 2177 (2008).

The efforts undertaken by the Archive to seek the

disclosure of, and make available to the public,

records detailing government decision making are

instrumental to realizing FOIA’s purpose of providing

citizens with knowledge of the operations of their

government and to enable public scrutiny essential

to the functioning of democracy. See Dep’t of the

Interior v. Klamath Water Users Protective Ass’n, 532

U.S. 1, 16 (2001) (“Congress believed [FOIA] . . .

would help ‘ensure an informed citizenry vital to the

functioning of a democratic society”) (citation omitted);

U.S. Dep’t of Justice v. Reporters Comm. for Freedom

of Press, 489 U.S. 749, 772-73 (1989) (FOIA’s “basic

policy of ‘full agency disclosure unless information is

exempted under clearly delineated statutory lan-

guage,’ indeed focuses on the citizens’ right to be

informed about ‘what their government is up to”)

(citation omitted). In its extensive FOIA activities,

2 See, e.g., Nat'l Sec. Archive v. Dep’t of the Air Force, No. 05-

571 (RMG), 2006 U.S. Dist. LEXIS 21037 (D.D.C. Apr. 19,

2006); Nat'l Sec. Archive v. FBI, 759 F. Supp. 872 (D.D.C. 1991).

the Archive relies on the view this Court articulated

in Klamath, specifically, the Court’s guidance that

the intra-agency memoranda or letters exemption,

5 U.S.C. § 552(b)(5) (“Exemption 5”), does not allow a

federal agency to refuse disclosure of documents

reflecting communication between the agency and a

private, non-governmental party with whom it has no

formal employment relationship. Klamath, 532 U.S.

at 10-11 (limiting the “consultant corollary” of Ex-

emption 5 to “communications between Government

agencies and outside consultants hired by them”)

(emphasis added).

The 19 records sought by Petitioner containing

opinions solicited by the Department of Defense

(“DoD”) from non-governmental lawyers to promul-

gate regulations under President Bush’s November

2001 military order, Detention, Treatment, and Trial

of Certain Non-Citizens in the War Against Terror-

ism, 6 Fed. Reg. 57,833 (Nov. 13, 2001), are highly

relevant to understanding national security decision

making. Therefore, the Archive, on behalf of the

public, has a strong interest in the disclosure of these

particular documents as well as in the implications

of the lower court’s ruling for future FOIA requests

concerning national security decision making.

In the decision below, the D.C. Circuit upheld

DoD’s denial of Petitioner’s request for these 19

records by expanding the retained consultant corol-

lary discussed in Klamath to include documents

reflecting opinions from anyone from whom an

agency chooses to solicit advice, even if there is no

formal employment relationship between the advisor

and a federal agency. (Pet. for Writ of Cert. App. A at

13a.) This overbroad interpretation of Exemption 5

breaks the limits set by this Court for what types of

documents will be considered intra-agency memo-

randa and letters. A review of FOIA request han-

dling by 25 agencies and departments found a 95%

increase in reliance on Exemption 5 as a basis for

refusing disclosure of government records in the past

decade. See Coalition of Journalists for Open Gov-

ernment, An Opportunity Lost, Part 1, An In-depth

Analysis of FOIA Performance from 1998 to 2007 10

(July 3, 2008) (reporting 34,587 denials based on

Exemption 5 in 1998 and 67,561 denials in 2007).

The D.C. Circuit’s decision in the case below, if left

standing, threatens to encourage agencies to further

expand their reliance on Exemption 5 and improperly

refuse disclosure of documents the Archive will re-

quest in the future. It is strongly in the interest of

the Archive, as a frequent FOIA requestor that seeks

records concerning policy and decision making, for

the Court to review the decision below and clarify the

limits of Exemption 5.

SUMMARY OF ARGUMENT

By allowing federal agencies such as DoD to keep

secret communications with selected private indi-

viduals, the D.C. Circuit has thwarted Congress’s

dominant policy objective behind FOIA that advances

broad disclosure of government information, limited

only by specifically stated and narrowly construed

statutory exceptions, so as to facilitate maximum

public scrutiny of government decision making. See

Dep't of the Air Force v. Rose, 425 U.S. 352, 360-62

(1976) (reviewing legislative history in S. Rep. No.

813, 89th Cong., 1st Sess., 3 (1965) and citing EPA uv.

Mink, 410 U.S. 73, 79-80 (1973)). The D.C. Circuit

effectively has rewritten the FOIA intra-agency

memoranda and letters exception to make documents

reflecting the advice of selected non-governmental

private attorneys commenting on draft regulations

protected from disclosure. This departure from the

plain and apparent meaning of the statutory text

defies the precept that FOIA exemptions be con-

strued narrowly in favor of disclosure.

Should an agency require input from private

citizens, it should follow the myriad procedures

permitted under the law, including soliciting public

comment or establishing a federal advisory commit-

tee. To obtain secrecy in its deliberative commu-

nications with an advisor, however, Exemption 5

protection can be attained only by entering a for-

mal employment relationship, which would provide

accountability and conflicts of interest protections.

The decision below improperly allows Exemption 5 to

protect the very type of closed door and special

interest decision making that the transparency laws

were designed to open up to public scrutiny. Thus, it

creates a gaping hole in the law Congress enacted to

protect the public’s interest in accountable govern-

ment decision making and will have a significant

impact on future FOIA requests to government agen-

cies. The Court should grant certiorari to clarify that

communications with private persons, who owe none

of the safeguarding duties of public servants, are not

exempt from FOIA disclosure as intra-agency memo-

randa and letters.

ARGUMENT

I. The D.C. Circuit’s Holding Frustrates the

Objectives of FOIA and Other Open

Government Laws by Permitting Federal

Agencies to Receive Secret Advice from

Private Parties

Public access to information concerning govern-

ment activities, including the advice and views pri-

vate individuals contribute to agencies, is a funda-

mental principle advanced by federal statutes. In

refusing to disclose the comments it elicited from

select private individuals, DoD drew its decision

making behind closed doors in contravention of the

objectives of the body of federal law promoting open

and publicly accountable government.

FOIA mandates complete openness, with only care-

fully delineated exemptions from that general rule.

See Rose, 425 °U.S. at 360-61. In enacting the law,

Congress sought to “enable the public to have suffi-

cient information in order to be able, through the

electoral process, to make intelligent, informed

choices with respect to the nature, scope, and procedure

of federal governmental activities,” Renegotiation Bd.

v. Bannercraft Clothing Co., 415 U.S. 1, 17 (1974)

(citation omitted), and to prevent the damage that

pervasive secrecy in government agencies does to

public confidence. See S. Rep. No. 813, 89th Cong.,

1st Sess., 10 (1965) (“A government by secrecy benefits

no one. It injures the people it seeks to serve; it

injures its own integrity and operation. It breeds

mistrust, dampens the fervor of its citizens, and

mocks their loyalty.”).

Similarly, under the Administrative Procedure Act

(“APA”), either through informal notice-and-comment

proceedings, 5 U.S.C. § 553, or formal on-the-record

rulemaking, 5 U.S.C. §§ 556, 557, agencies are di-

rected to avail themselves of the views of interested

persons and the public with transparency. See NLRB

v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969). The

purpose of these procedures is “to assure fairness and

mature consideration of rules of general application.”

Id.

Likewise, under the Federal Advisory Committee

Act (“FACA”), Congress recognized that seeking

advice from private citizens can be a “useful and

beneficial means of furnishing expert advice, ideas,

and diverse opinions to the Federal Government.”

5 U.S.C. App. 2 §2. In seeking private input, how-

ever, Congress sought to protect public decision

making from any inappropriate influences by legis-

lating safeguards to ensure public scrutiny of advi-

sory committee activities. These measures include

public notice of and access to meetings, unless the

President or relevant agency head determines that

the meeting may be closed under exceptions set forth

in the Government in the Sunshine Act, 5 U.S.C. §

§52b(c). 5 U.S.C. App. 2 § 10(a)(1)-(3); (d). Also, FACA

requires public availability of meeting minutes as

well as documents prepared for or by advisory com-

mittees, subject to exemptions available under FOIA.

5 U.S.C. App. 2 §§ 10(b)-(c); 11; see generally Pub.

Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 446,

459 (1989) (FACA’s principal purpose is to enhance

accountability by allowing the public to monitor

the existence, activities, and cost of advisory commit-

tees); Animal Legal Defense Fund Inc. v. Shalala,

104 F.3d 424, 426-27 (D.C. Cir. 1997) (FACA de-

mands public access to documents concerning private

experts selected by the National Academy of Sciences

to serve on a committee advising on laboratory

standards); Natl Anti-Hunger Coal. v. President’s

Private Sector Survey on Cost Control, 711 F.2d 1071,

1072 (D.C. Cir 1983) (FACA is intended “to open to

public scrutiny the manner in which government

agencies obtain advice from private individuals”)

(citations omitted).

In the present case, where DoD did not engage in

APA rulemaking or establish an advisory committee

under FACA when it elicited the views of non-

governmental lawyers on draft regulations for mili-

tary tribunals, FOIA functions to ensure public ac-

countability for decisions based on priwate comments.

By stretching the meaning of the term “intra-agency”

in Exemption 5 past its breaking point, the D.C.

Circuit effectively has nullified this safeguard. It has

given a green light to agencies to shroud their com-

munications with selected private individuals in

secrecy, creating a hole in the framework of federal

open government laws which Congress did not intend.

II. Any Potential Benefit to Be Gained from

Keeping Communication with Private

Citizen Advisors in Confidence Does Not

Justify the Court of Appeals’ Rewriting of

FOIA Exemption 5

Although, as the D.C. Circuit noted, “the expecta-

tion that communications will remain confidential is

crucial to eliciting candid and honest advice from

outside consultants” (Pet. For Writ of Cert. App. A at

18a), the benefit presumably derived from keeping

communications secret is no license to obliterate all

meaning of the term “intra-agency” from the statute.

See Klamath, 532 U.S. at 11-12 (promotion of “frank

communication” does not justify reducing intra-

agency to “a purely conclusory term”). This Court

has emphasized that FOIA exemptions are intended

to have a “meaningful reach and application” while

achieving a “workable balance” between the public

right to know and the legitimate needs of agencies to

keep certain information in confidence. See John Doe

Agency v. John Doe Corp., 493 U.S. 146, 152-53

(1989). In balancing the interests at stake, courts

should follow “the clear provisions” of FOIA and

narrowly construe any ambiguities “in favor of disclo-

sure.” Id. at 164 (Scalia, J., dissenting) (stating

adherence to this approach will “reducle] the volume

of litigation and mak[e] it inescapably clear to Con-

gress what changes need to be made”).

To prevent an impermissible judicial expansion of

Exemption 5, the Court should grant review and

articulate clear guidance on the breadth of that

exemption. A requirement that agencies enter formal

employment relationships with non-governmental

advisors before earning Exemption 5 coverage, as

posited in Klamath, would reduce, if not eliminate,

the present uncertainty among agencies and FOIA

requestors and claimants regarding the reach of

Exemption 5. See U.S. Dep’t of Justice v. Julian, 486

U.S. 1, 14 (1988) (stressing that Congress intended

workable rules for determining whether particular

material may be withheld or must be disclosed).

Ill. By Granting Exemption 5 Protection to

Advice from Private Individuals, the

D.C. Circuit Encourages Avoidance of

Government Ethics Laws, Reducing

Recourse for Seeking Public Account-

ability

If an agency believes it must assure confidentiality

to obtain candid advice from private individuals, the

agency may hire them, with or without pay, and

bring them within the agency to achieve Exemption 5

protection from disclosure of related documents.

Under current federal regulations, an individual

“retained, designated, appointed, or employed to per-

form temporary duties either on a full-time or

intermittent basis, with or without compensation, for

a period not to exceed 130days during any

consecutive 365-day period” is considered a “special

Government employee.” Standards for Ethical Con-

duct for Employees of the Executive Branch, 5 C.F.R.

2635.102(1) (following the definition codified at 18

U.S.C. § 202(a)). Once engaged in a formal employ-

ment relationship with a federal agency, special

government employees are obliged to act in service of

the public by adhering to the principles of ethical

conduct set forth in 5 C.F.R. 2635, including conflict

of interest and disqualification provisions, as well

as fulfill financial disclosure obligations depending

on level of pay and expected time commitment of

position in accordance with 5 C.F.R. 2634.202 and

2634.204. Furthermore, special government employ-

ees fall under the jurisdiction of federal bribery and

conflict of interest criminal statutes. See, e.g.,

18 U.S.C. §§ 201, 203, 205, 207, 208, 209. Thus,

when agencies establish formal employment relation-

ships with advisors, despite the possible unavailabil-

ity of information to the public through FOIA, Con-

gress has put in place other mechanisms to ensure

that individuals who advise the government act with

commitment to the public interest.

Here, however, the private individuals from whom

DoD solicited and obtained advice owed none of the

obligations owed by government employees. In this

circumstance, disclosure of that advice is mandated

under FOIA to enable government accountability to

the public for the decisions it mad based on that

advice. By obviating formal engagement of an out-

side advisor to ensure Exemption 5 protection, the

decision of the D.C. Circuit simultaneously under-

mines the objectives of both open government laws

and government ethics laws. Review should be

granted to eliminate this undesirable ethical conse-

quence of overextending the scope of Exemption 5.

CONCLUSION

For the reasons stated above, the petition for writ

of certiorari in the above captioned case should be

granted.

Respectfully submitted,