The Ninth Circuit Court of Appeals ruled that the government must reveal name of lobbyists who working for retroactive liability protection for telecom companies who participated in warrantless surveillance of U.S. citizens after 9/11. -db
February 10, 2010
By Sherri M. Okamoto
The Ninth U.S. Circuit Court of Appeals yesterday ruled that the government was required to disclose the names of individuals who lobbied in favor of retroactive liability protection for telecommunications carriers who participated in a warrantless, electronic surveillance program on millions of American telephones after the terrorist attacks on Sept. 11, 2001.
However, the panel said the e-mail addresses of those lobbyists could not be disclosed unless there was no other way to identify the individual agent and partially reversed the district court’s order for the release of the names and e-mail addresses for all the agents.
Efforts to provide liability protection for the telecommunications carriers who participated in the government’s wiretap program began in 2007. In April of that year, the Department of Justice sent a legislative proposal to Congress which included a provision creating immunity for telecommunications providers alleged to have participated in the government’s surveillance activities.
In July 2008, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 was passed, which included a liability shield for the carriers. But before it was enacted, the Electronic Frontier Foundation made a Freedom of Information Act request to the Director of National Intelligence and Department of Justice seeking all records concerning “briefing, discussions, or other exchanges” agency officials had with members of Congress and representatives or agents of telecommunications companies concerning amendments to FISA, “including any discussion of immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities.”
Based in San Francisco, the EFF describes itself on its website as a donor-supported membership organization founded in 1990 to defend free speech, privacy, innovation, and consumer rights.
About four months after making its initial FOIA request, EFF made a second request for seeking “all agency records” concerning briefings, discussions, or other exchanges between the agencies and “representatives or agents of telecommunications companies concerning amendments to FISA” or shielding the companies from liability as a result of their cooperation with government surveillance activities, including information regarding communications from the agencies to members of Congress or their staffs, as well as agency communications with a number of named, high-profile telecommunications industry employees and lobbyists.
When the agencies failed to timely respond, EFF filed two separate actions, which were consolidated and heard by U.S. District Judge Jeffrey S. White of the Northern District of California.
White issued a preliminary injunction requiring the government to expedite processing of EFF’s FOIA requests. The government released some of the information, but withheld e-mail messages and other information exchanged between the agencies and Congress, the telecommunications carriers and other parts of the Executive Branch, including the White House, claiming the FOIA exemption for “inter-agency or intra-agency” documents.
The government also declined to provide the identities of telecommunications company representatives, relying on the exemption allowing withholding of information “specifically exempted from disclosure by statute,” and another which protects “personnel, medical, and similar files” for which disclosure “would constitute a clearly unwarranted invasion of personal privacy.”
Each party moved for summary judgment. White denied the government’s motion, granted EFF’s cross-motion, and ordered the government to disclose the contested documents.
The government did not appeal the district court order as it pertained to information exchanged with Congress and the telecommunications firms. It later disclosed the content of all communications between them, although it redacted the identities of telecommunications firms and their agents or representatives and continued to withhold materials which it claimed had been circulated solely within the Executive Branch.
Writing for the appellate court, Judge Michael Daly Hawkins said that there was a privacy interest in the withheld documents indicating the identities of the private individuals and entities who communicated with the government in connection with the FISA amendments at stake, assuming that the documents at issue would qualify as “similar files” for purposes of the FOIA, but this privacy interest was outweighed by the public interest in obtaining information about the effects of lobbying on government decision.
“With knowledge of the lobbyists’ identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions,” Hawkins explained. “Such information will allow the public to draw inferences comparing the various agents’ influence in relation to each other and compared to the agents’ or their corporate sponsors’ political activity and contributions to either the President or key members of Congress.”
Hawkins insisted that there is “clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence,” but not a corresponding interest in disclosure of those agents’ e-mail addresses.
Since disclosure of e-mail addresses “may add to the risk of privacy invasion with little additional benefit to the public interest,” he concluded that such information could be properly withheld if it is not needed to identify the party communicating with the government.
With Hawkins joined by Senior Circuit Judge Myron H. Bright of the Eighth Circuit and Judge Milan D. Smith Jr., the panel ordered remand of the government’s claims as to two other FOIA exemptions.
Hawkins noted that the district judge had not addressed the factual or legal basis for the government’s argument that it could withhold information “specifically exempted from disclosure by statute” due to apparent confusion in the summary judgment motions as to whether EFF had abandoned its objection to this claim.
The district court also had to conduct a fact-specific inquiry into whether any of the documents that the government declined to produce were “inter-agency or intra-agency memorandums,” exempt form disclosure under the FOIA.
The case is Electronic Frontier Foundation v. Office of the Director of National Intelligence, 09-17235.
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