What follows is a great Twitter thread from Adam A. Marshall, a Reporters Committee for Freedom of the Press staff attorney, on today's oral argument in the United States Supreme Court (and Justice Barrett's first).
The case focuses on the deliberative processes exception to the federal Freedom of Information Act, widely perceived as the most frequently abused exception. Or, as Marshall writes, the "withhold it because you want to" exception.
Kentucky's equivalent exceptions, the preliminary documents exceptions, are equally abused and misused to create, as Adams writes, "a huge obstacle to the public's right to understand what the government is up to." In 2019, he notes, the exception was invoked "more than 74,000 times to withhold records in part or in full" at the federal level.
With thanks to Mr. Marshall:
https://www.rcfp.org/author/adam-marshall/
#FOIA Monday special #SCOTUS edition thread! At 10am eastern today, the Supreme Court will hear oral arguments in a case about the deliberative process privilege. A brief thread about what's going on.
First of all, you can listen to the oral arguments this morning LIVE on C-SPAN; link should be available here: c-span.org/supremeCourt/c⦠That's pretty cool. The public should always be able to listen to oral arguments, as @rcfp has argued.
Ok, second, what is this case about? Well, it concerns the deliberative process privilege, one of the privileges incorporated into #FOIA's Exemption 5. You can learn more about it in the FOIA Wiki here:
https://foia.wiki/wiki/Deliberative_Process_Privilege
The deliberative process privilege is one of the most overused and abused #FOIA exemptions. It's used to conceal embarrassing and inconvenient information. It's widely known as the "withhold it because you want to" exemption.
The #FOIA case the #SCOTUS is hearing today comes from the 9th Circuit. It concerns an interagency consultation process under Section 7 of the Endangered Species Act of 1973. Here's a writeup from @SCOTUSblog:
https://www.scotusblog.com/2020/10/case-preview-court-will-consider-the…
The facts of the case, Fish and Wildlife Service v. @SierraClub, are pretty detailed and complex. I'd read the @SCOTUSblog summary instead of trying to get a summary here.
Interestingly (or frustratingly), this case does not involve #FOIA's foreseeable harm standard, because the request was submitted before the 2016 amendments came into effect. It's the second case in two years the #SCOTUS has taken that doesn't involve foreseeable harm.
.@rcfp and a coalition of newsmedia organizations filed an amicus brief in support of @SierraClub, addressing the overuse and abuse of the deliberative process privilege, which undermines the purpose of #FOIA. You can read it here (pdf warning):
https://www.rcfp.org/wp-content/uploads/2020/08/2020-08-03-RCFP-amicus-…
For example, the DPP has been
cited by the FCC to withhold drafts of the script for a skit presented at the Federal Communications Bar Association annual dinner, as @dellcam has written.
https://gizmodo.com/fcc-says-releasing-jokes-it-wrote-about-ajit-pai-co…
In 2014, the VA cited the privilege to withhold the names of hospitals where 19 veterans died because of delays in medical screenings, claiming the information was "preliminary." @cjciaramella's story on that is here:
The DOJ cited the privilege to withhold a report about the United States government's Nazi-hunting operations, as well as its role in creating a "safe haven" for Nazis and their collaborators after WWII. Read @EricLichtblau's story on that here:
https://www.nytimes.com/2010/11/14/us/14nazis.html
Suffice to say, the deliberative process privilege is a huge obstacle to the public's right to understand what the government is up to. In 2019, it was cited more than 74,000 times to withhold records in part or in full under #FOIA.
What will today's case hold? Of course, we don't know. But the #SCOTUS's last #FOIA case, FMI v. Argus Leader, did not turn out well for the public's right to know:
https://foia.wiki/wiki/Exemption_4#Confidential
The Court overturned decades of precedent, expanding the scope of Exemption 4.
I think it's fair to say many people were surprised the #SCOTUS took the case being argued today. Tune in at 10am eastern to hear what the justices think! Direct link:
https://www.c-span.org/video/?475850-1/us-fish-game-service-v-sierra-cl…
