Judge Advances PFAW Foundation's FOIA Request on Secret Trials

In the wake of the 9/11 terrorist attacks the United States government detained hundreds of foreign nationals from Middle Eastern and Muslim nations, frequently for long periods of time and without ever filing charges. The court filings and proceedings concerning these detentions were in some cases sealed at the behest of the government, preventing the very existence of such cases from becoming public knowledge, and creating the potential for people to disappear into government custody without a public trace.

After a clerical error at the 11th Circuit Court of Appeals briefly exposed a secret federal habeas corpus case, People For the American Way Foundation filed a request under the Freedom of Information Act to the Department of Justice to ascertain how often the government had sought to seal cases involving post-9/11 detainees. The November, 2003 request was stonewalled from the outset by the government.

In August, 2004 PFAWF filed suit, with the law firm of Arnold & Porter LLP serving as pro bono co-counsel, in the U.S. District Court for the District of Columbia to compel the DOJ to provide responsive records. The DOJ infamously responded by requesting nearly $400,000 to perform the search and then, after a fee waiver was sought, rejected the request as unreasonably burdensome.

Negotiations continued haltingly and the DOJ was able to identify 44,000 cases that could contain responsive records, which could be easily analyzed using a court database to help determine whether or not they are sealed cases. But in March, 2006 the DOJ cut off discussions and asked the court to dismiss the request as unreasonably burdensome. The DOJ argued that the search would have to be done by hand and that it could not be compelled to use the court database “no matter how quickly and easily” it could be done. PFAWF filed a cross motion.

On Tuesday, District Court Judge John D. Bates rejected the DOJ’s argument about the court database and ordered the government to use it as a tool to help identify documents responsive to PFAWF’s FOIA request. The court opinion is available here and the court order is available here.

“This ruling affirms the right of Americans to know what their government is doing,” said Elliot Mincberg, PFAWF legal director. “Excessive government secrecy puts our liberties at risk, and this ruling will send a clear message to the administration that they can’t stonewall legitimate FOIA requests forever.”

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