Judge Sides With Government Regarding Advocacy Groups FOIA Patriot Act Request

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On Monday, May 19, a federal judge in U.S. District Court in Washington ruled that the government had adequately replied to four advocacy groups' Freedom of Information Act request and was not required to submit any further information regarding its use of new surveillance powers granted under Section 215 of the USA Patriot Act. The groups -- the American Civil Liberties Union (ACLU), American Booksellers Foundation for Free Expression (ABFFE), Electronic Privacy Information Center (EPIC), and Freedom to Read Foundation (FTRF) -- sought to determine how many subpoenas had been issued to bookstores, libraries, and newspapers.

The groups feared that blacked-out documents released by the government under their FOIA request indicated that the government is aggressively using its new spying powers granted by the USA Patriot Act. They argued that the government was improperly classifying this material, while the government claimed that withholding the information was in the interest of national security.

"Although we are disappointed, we were not surprised," said Chris Finan, president of ABFFE. "The FOIA provides for a national security exemption, and, at a time like the present, when national security seems threatened, judges are likely to err on the side of the government."

The judge's decision was the latest chapter in a litigation process that began last year. The plaintiffs first filed an FOIA Request on August 21, 2002. When the Department of Justice failed to respond to the FOIA, the groups eventually filed a preliminary injunction asking that a federal court order the Justice Department to respond immediately to the FOIA lawsuit. The government provided some materials in early March.

However, the FBI documents that were disclosed through FOIA were, for the most part, blacked out, but the sheer length of the documents indicated that the Bureau is "aggressively wielding a disturbing power" provided by the Patriot Act, according to an ACLU press release. (For a previous article on this topic, click here).

In mid-March, the groups filed a motion for summary judgment, challenging the government's "refusal to disclose aggregate, statistical data concerning implementation of controversial new surveillance powers authorized by Congress…. While the DOJ has now released a number of records in response to Plaintiffs' request, it has asserted that certain responsive records are exempt from disclosure."

Though Judge Ellen Segal Huvelle's May 19 opinion was sympathetic to the groups, in her ruling, she wrote, "While plaintiffs' arguments in favor of disclosure are not without force, they are ultimately insufficient to overcome the agency's expert judgment that withholding the disputed information is authorized by the Executive Order because it is reasonably connected to the protection of national security."

"Once [the government] evokes the national security exemption … the court is required to defer to the government's argument unless the requesting party can show bad faith or reasons to doubt the government's assertion," said Jameel Jaffer, a staff attorney for the ACLU. "It's a presumption that favors the government…. We knew it was difficult to overcome."

Jaffer said that the government contends that were it to disclose the requested data, it would let terrorists know which provisions in the USA Patriot Act to be most concerned about. However, he did stress that the groups' FOIA request should not be considered a failure. "We've received useful information about the government's use of surveillance powers [through the blacked-out documents]," he explained.

Additionally, this has shown that "you cannot count only on the FOIA to keep the government in check," Jaffer said. "Congress needs to be much more aggressive to make sure these new surveillance powers are being used as they should be used." The bottom line, he stressed, is that, at present, "there is really minimal scrutiny of the FBI…. Just the fact that these laws are on the books has a chilling effect -- people will be less likely to take [certain books] from the library."

The groups have not decided whether they will appeal the judge's decision. -- David Grogan