In two extraordinary Freedom of Information Act cases this summer, the United States Supreme Court took emergency action to prevent court-ordered disclosure of agency records under the Act. Both cases involved district court orders that would have required immediate record disclosure in the absence of a stay pending appeal.
Freedom of Information Act lawsuits are exceptional in that a defendant agency loses its right to appeal an adverse order, and the case becomes entirely moot, unless a court "stays" that disclosure order pending the outcome of the agency's appeal. In each of the two cases raised before the Supreme Court this summer, a stay pending appeal had been denied at both the district and appellate court levels, necessitating the Supreme Court's intervention.
In the firstof the two cases, Rosenfeld v. Department of Justice, Civil Nos. 85-1709, 85-2247 (N.D. Cal.), United States District Court Judge Marilyn Hall Patel issued a FOIA decision adverse to the Federal Bureau of Investigation in multiple respects. The case involves a longstanding effort by journalist Seth Rosenfeld to obtain as much information as possible about the FBI's investigation, infiltration and surveillance of student political groups in the San Francisco Bay area during the 1960s -- most particularly those involved with what was known as the "Free Speech Movement" at that time.
On March 29 of this year, Judge Patel ruled that the FBI's investigation of such groups ceased to have a legitimate law enforcement purpose as of a certain date in 1965, thereby precluding any Exemption 7 protection for all individuals and confidential sources appearing in such FBI records generated after that date. Additionally, she disagreed with the propriety of protecting certain portions of the FBI's files on national security grounds, because in her view such information was "likely to have been public knowledge" back then.
Judge Patel ordered the FBI to "reprocess" many of the requested files in a way that would disclose much sensitive information -- including information pertaining to exceptionally sensitive national security sources. See Rosenfeld v. Department of Justice, 761 F. Supp. 1440 (N.D. Cal. 1991). At the same time, Judge Patel flatly refused to issue a stay of her disclosure order pending its appeal through the ordinary appellate process.
The FBI therefore sought an emergency stay from the Ninth Circuit Court of Appeals but that court surprisingly declined even to consider issuing a stay, due to a procedural technicality which it thought left it without jurisdiction to grant such relief at that juncture. See Rosenfeld v. Department of Justice, No. 91-15854 (9th Cir. June 12, 1991).
So the Solicitor General had to file an emergency stay application with the Supreme Court, as a last resort before disclosure would be required. That application was considered first by Associate Supreme Court Justice Sandra Day O'Connor, as Circuit Justice for the Ninth Circuit, who took the unusual step of referring the matter for consideration by the full Supreme Court. Also unusual was that the Solicitor General submitted a classified affidavit directly to the Supreme Courtin support of the stay application.
On June 24, after a great deal of procedural activity, the Supreme Court granted the stay application unanimously. See Department of Justice v. Rosenfeld, 111 S. Ct. 2846 (1991). Most significantly, the Court chose not merely to grant a temporary stay until such time as the Ninth Circuit's perceived jurisdictional problem could be resolved. Rather, it took the extraordinary further step of granting a full stay of disclosure pending final disposition of all appeals, effectively bypassing the court of appeals on that critical procedural issue.
Consequently, the Rosenfeld case now proceeds through the appellate process with the assurance that none of the information at issue in the case will be required to be disclosed before its proper exemption status has been determined conclusively by the courts on appeal.
Only a few weeks later, the same sort of procedural situation arose in another FOIA lawsuit. That case, Assembly of California v. Department of Commerce, Civil No. 91-0090 (E.D. Cal.), involved a FOIA request filed by a body of the California state legislature as part of a political controversy surrounding the 1990 census.
Through its FOIA request, the California Assembly sought to obtain a copy of certain "draft" census data that had been prepared by the Department of Commerce as alternate census statistics for the State of California in case the Secretary of Commerce decided to make census "adjustments" in July. After the Secretary of Commerce decided to make no such adjustments, the California Assembly claimed an immediate entitlement to the alternate data anyway, in order to accommodate its development of a legislative apportionment plan by a mid-September deadline.
The Secretary of Commerce denied the Assembly's FOIA request, arguing that the alternate statistics were predecisional data protected by the deliberative process privilege under Exemption 5. That position was rejected by District Court Judge William B. Shubb, who ordered immediate disclosure on August 20, without permitting even an expedited appeal. See Assembly of California v. Department of Commerce, Civil No. 91-0090 (E.D. Cal. Aug.20, 1991). This time around, the Ninth Circuit agreed to hold a hearing on the propriety of a stay pending appeal, which it held on August 30 -- but it then denied a stay, by a divided panel vote, on that date.
So once again the Solicitor General looked to the Supreme Court to preserve the status quo in a FOIA case pending appeal. An emergency stay application again was filed with Associate Justice O'Connor, as Circuit Justice for the Ninth Circuit, and again Justice O'Connor (upon issuing a temporary stay after a flurry of activity over the Labor Day Weekend) referred the matter to the attention of the full Supreme Court.
Although the Assembly argued to the Supreme Court that it had an "urgent need" for the data, the Court issued a stay pending appeal, by a 6-3 vote, on September 10. See 112 S. Ct. 19 (1991).
Only twice before in the 25-year history of the Freedom of Information Act has the Solicitor General had to seek such emergency relief from the Supreme Court. Two years ago, such a step became necessary before the Exemption 7 case of John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989), could be decided by the Supreme Court. In that case, the Second Circuit Court of Appeals inexplicably denied a stay pending possible Supreme Court review. See FOIA Update, Winter 1989, at 2. Former Associate Supreme Court Justice Thurgood Marshall, as Circuit Justice for the Second Circuit, issued an emergency stay in order to allow the Supreme Court to consider the merits of the government's appeal. See 488 U.S. 1306 (Marshall, Circuit Justice 1989). Consequently, the Supreme Court reversed the Second Circuit's ruling on the merits of the case. See FOIA Update, Fall 1989, at 1. And in one earlier case that arose under exceptional procedural circumstances within the Ninth Circuit, an emergency stay pending appeal ultimately was not issued when necessary to prevent disclosure. See Powell v. Department of Justice, No. A-84 (U.S. July 31, 1985) (Rehnquist, Circuit Justice) (undocketed order).
According to Leonard Schaitman, an Assistant Director of the Appellate Staff of the Justice Department's Civil Division, this aspect of FOIA litigation has become "a matter of increasing concern" to federal agencies in recent years. Schaitman, a veteran FOIA litigator who oversees most FOIA cases to reach the appellate level, suggests that "there ought to be a better way of preserving the government's right to appeal adverse FOIA decisions than by handling such matters on an emergency basis before the United States Supreme Court."
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