Implicitly recognizing that "the value of information is partly a function of time," a federal district court judge has ordered the US Department of Justice and Department of Defense to expedite release of records relating to the murder of Washington Post columnist and Saudi dissident Jamal Khashoggi.
In doing so, Judge Paul A. Engelmayer reasoned that it is of "paramount importance" to uncover the truth about Khashoggi's disappearance.
In December 2018, the Open Society Justice Initiative — the legal team for the Open Society Foundation — requested records relating to Khashoggi's murder.
Agency representatives estimate the total number of records responsive to the Open Society request at approximately 288,000 (Justice) and 22,637 (Defense). They maintain that compliance with Judge Engelmayer's order to release 5000 pages monthly impedes their ability to fulfill other records requests submitted to their agencies.
The federal judge rejected this claim, questioning their level of commitment to fulfilling the December request which they first responded to in April.
He suggested that a greater commitment of resources to the task of sifting through the records was warranted, given the request's "obvious and unusual time-sensitivity," and noted that the agencies' "seemingly antiquated review capacities" would not be permitted to delay release.
Judge Engelmayer's language echoes that of the Kentucky Supreme Court in Commonwealth v. Chestnut, a 2008 opinion whose humble origins bely its immense importance.
https://caselaw.findlaw.com/ky-supreme-court/1387319.html
Chestnut began with the Corrections Cabinet's denial of an inmate request for the nonexempt portions of his inmate file. It culminated in an opinion recognizing, among many other things, that an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request" and suggesting that Kentucky's agencies should "reorganize [their records] in such a manner as to more easily facilitate open records review."
"The winnowing process" of separating exempt and nonexempt information from public records, and the "obvious fact that complying with an open records request will consume both time and manpower," the Court continued, cannot impede the public's rights of access under the open records law.
And the potential for "inadvertent disclosure" of protected records, the Court concluded, constitutes no basis for delaying or denying access. "The prospect of a public agency's potentially negligent disclosure is simply an insufficient reason to thwart the openness the General Assembly sought to achieve when it enacted the Open Records Act."
In both the little known state case and widely known federal case, the courts rejected agency obfuscation/ delay as a basis for impeding rights of access secured by law.
