Friday, January 2, 2009

Silliest FOIA Ruling of the Year?

It's award season, so I'd like to offer a nominee for silliest Freedom of Information Act decision of the year. At the agency level, there are too many contenders, so they are automatically excluded. But in the waning days of 2008 we had a real sleeper from the good ol' federal court in the nation's capital.

On December 19, Judge Colleen Kollar-Kotelly threw out a FOIA lawsuit brought by SAE Productions, Inc., a television production company run by Steven Emerson, a veteran journalist who has become a polarizing figure for his early and unabashed warnings about the perils of Islamic extremism and terrorism. Emerson was asking the FBI for information about himself and about the agency's dealings with camps for Muslim youths.

Judge Kollar-Kotelly nixed the suit for the hyper-technical reason that the case was brought in the name of Emerson's company and not by Emerson himself. "The Corporation was not adequately identified as the FOIA requester," she wrote.

Oh, so Emerson just jotted off letters to the FBI from his home address, never mentioning his production company and suddenly popped up in court suing from some media entity the FBI never had an inkling about? Nope. Copies of the letters filed in court show Emerson wrote in on SAE letterhead, describing himself as "Steven Emerson of SAE Productions," and identifying himself as a representative of the news media.

Justice Department lawyers argued Emerson never made clear he was seeking the records "on behalf of" the company. Judge Kollar-Kotelly took the argument hook, line and sinker. "Plaintiff cites to no authority
supporting its argument that the use of corporate letterhead, without more, is a sufficient indication that a FOIA request is being made on behalf of the corporation, nor is the Court so persuaded," she wrote. The court and Justice Department cite a bunch of cases not particularly analogous in my view, such as companies which tried to sue over requests made by outside lawyers and a wife who tried to sue over her husband's request.

This decision is absurd. Frankly, I find it hard to believe DOJ would make the argument and even harder to believe a judge would accept it. As a journalist, I've written dozens of FOIA requests and seen probably hundreds more from other reporters. I've not seen one yet that says "I've obtained a resolution from the board of the Washington Post company authorizing this FOIA request" or "The president of CBS Inc. has instructed me to proceed." Nor should they have to.

FOIA requests should not have to be drafted with legal precision. The whole purpose of the well-intended but poorly-executed law is to give the public ready access to government information, not to bury requesters in technicalities and roadblocks. The notion that a request has to include the magic words, "on behalf of," to allow one's employer to pursue it in court is entirely at odds with what FOIA was trying to do.

If a reporter makes a FOIA request on a news outlet's letterhead or even identifies the entity he or she works for, that ought to be enough to give both the individual reporter and the entity the right to file suit. The judge sees some Constitutional problem here, but I don't. Reporters excluded from court proceedings and secret agency meetings often object without stating explicitly that they are acting "on behalf of" their outlet. They may not even be empowered to do so. But this shouldn't eviscerate the outlet's right to take up the fight later--in its own name.

This wayward decision can probably be worked around by savvy requesters simply adding to their boilerplate the phrase: "on my own behalf and on behalf of XXX Inc." And the rare news outlet willing to pay legal fees in this environment could still sue under its reporter's name. For those reasons, I can't say this is the worst FOIA ruling of the year, because it's more about procedure than substance. But it definitely qualifies as one of the decisions most starkly at odds with the spirit of FOIA.


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