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EPIC Case Will Define Government Records

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The Freedom of Information Act  (FOIA) allows individuals to request government records and to seek recourse from a federal court whenever a government agency improperly refuses to release those records. However, when a court begins to craft new arguments not presented by either the requester or the government and that argument favors the government, we should begin asking if this “safety valve” is working as originally intended—with a presumption of openness. Unfortunately, this is exactly what has happened.

In 2008, President George W. Bush issued National Security Policy Directive 54, a document establishing a Comprehensive National Cybersecurity Initiative for executive agencies. The Directive was sent to Cabinet-level officials, agency leaders, and a number of executive advisors. With the exception of a single paragraph, the document was not classified.

The Directive remains in effect today, and the Obama Administration has asked Congress for millions of dollars to support implementation of the Directive. In fact, in 2013 alone, the Office of Management and Budget asked for $769 million to support the division within the Department of Homeland Security responsible “for protecting Federal computer systems and sustain[ing] efforts under the Comprehensive National Cybersecurity Initiative.” The government has also referenced the Directive in a number of press releases and public documents.

Despite the fact that the Directive remains unclassified, the government has refused to release it to the American public. The Electronic Privacy Information Center (EPIC), a public-interest research organization that focuses on civil liberties and the protection of privacy, submitted a FOIA request to the National Security Agency (NSA) in an attempt to obtain the Directive. However, the NSA refused to release the Directive. Specifically, the NSA claimed that that the Directive was exempt from FOIA because it was a presidential communication.

Believing that this was an inappropriate denial, EPIC sued the NSA in an effort to obtain an order compelling the agency to turn over the Directive. In an unusual turn of events, Judge Beryl A. Howell chose to not address the arguments presented by either EPIC or the NSA; instead, the court took it upon itself to decide that the Directive is not an “agency record” for purposes of FOIA. NSA, however, never argued that the document was not an agency record.

Despite the NSA’s decision to not raise this argument, the court ruled that the document was not an agency record and dismissed the case. EPIC has appealed this decision, and the case is currently before the Court of Appeals for the District of Columbia.

Public Citizen has filed an amicus curiae brief in support of EPIC’s appeal, and a number of organizations, including the Project On Government Oversight, Center for Effective Government, Citizens for Responsibility and Ethics in Government,, and the Sunlight Foundation have joined it. The amicus brief argues that the district court improperly decided that the National Security Policy Directive 54 should be withheld, arguing that the court’s finding that the Directive was not an agency record was in error on jurisdictional grounds as well as on the merits.

The Court of Appeals should reverse the order of the district court and send this case back to decide the FOIA exemptions raised by the NSA. The National Security Policy Directive 54 establishes our national security and cybersecurity policies and directs agencies to implement those policies, and therefore it is an agency record and subject to FOIA. If the government wins this case, the public will be stripped of its right to access all White House executive orders, directives, proclamations, memos, or other correspondence provided to federal agencies—products that often have the force of law.

Image from The White House.

By: Joshua Christensen
Legal Intern, POGO

Joshua Christensen is a legal intern at the Project On Government Oversight.

Topics: Open Government

Related Content: Government Secrecy, Freedom of Information Act (FOIA), Information Access, Department of Defense (DOD), Overclassification

Authors: Joshua Christensen

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