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FOIA Update: FOIA Focus: Kenneth S. Geller

FOIA Update
Vol. VI, No. 2

FOIA Focus: Kenneth S. Geller

The Office of the Solicitor General in the Department of Justice plays two key roles in federal government litigation. First, it represents all federal departments and agencies before the Supreme Court of the United States. The Solicitor General and his staff of twenty-two attorneys prepare Supreme Court briefs and present oral arguments before the Court. Additionally, the Office of the Solicitor General review every adverse appellate court decision received by the government and decides which cases the government will petition the Supreme Court to review and exactly what positions will be taken. The Solicitor General's staff also reviews adverse decisions received by government agencies at the district court level and decides which of these should be appealed.

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Kenneth S. Geller, one of five deputies to the Solicitor General, holds particular responsibility for general civil litigation, including cases arising under the Freedom of Information Act. As such, he personally handles all of the FOIA cases to reach the Supreme Court and he also oversees the development of FOIA case law at the appellate level.

"We try to bring balance and perspective to the enforcement of the Act," says Geller. "We appreciate the fact that Congress wanted documents released, that the public has a right to know about the inner workings of its government. However, sometimes our adversaries refuse to acknowledge the fact that in enacting nine exemptions to the FOIA, Congress also recognized the government's need to keep certain matters confidential."

As much as he is concerned with the development of case law in the FOIA area, FOIA cases are not a large percentage of Geller's total workload. "It's remarkable how few FOIA cases have gone up to the Supreme Court," he observes. "Each year many thousands of FOIA requests are denied, hundreds of suits are filed, and only one or perhaps two of these will be reviewed by the Supreme Court."

As Geller sees it, this is because "the Department of Justice does a good job of promulgating and publicizing rational governmentwide responses to FOIA problems" and because all adverse decisions are carefully screened in the Department's Civil Division and the Solicitor General's Office. "We are very selective," he points out. "We have not gone up to the Supreme Court unless we were pretty confident that our position was consistent with the Act and unless there was a substantial government interest at stake."

Indeed, Geller has enjoyed an impressive success rate in his Supreme Court appearances, but his achievements in the FOIA area have been especially notable. He has not only won each of the six FOIA cases he has argued, but most of these wins were clear victories with the justices ruling decisively in the government's favor.

"But it's unfair for our adversaries to suggest that the Supreme Court is hostile to the enforcement of the FOIA," insists Geller. "Our success rate reflects the selectivity we exercise in deciding which cases to petition the Court to review -- we haven't overreached.

"It is my perception," Geller continues, "that the Act is not working the way it should. A small percentage of requests are from the news media or other individuals whose purpose is to further the public's right to know. It has been my experience that most requesters have private, usually commercial, motives or want the information for use in litigation. It is a fallacy to suggest that whenever a FOIA request is denied, the government is subverting the public's right to know."

Geller believes that the number of unresolved FOIA issues requiring Supreme Court attention is getting smaller as time goes by. "The area we may hear more about in the future is Exemption 4," he predicts. We've had reverse FOIA cases, but the courts have not really focused on what Exemption 4 means. Many businesses supply information to the federal government and then their competitors use the FOIA to try to obtain this information from the government. This is a major structural issue and we can anticipate some significant developments on it."

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A native New Yorker, Geller graduated magna cum laude from Harvard Law School, where he served as a law review editor. Then, after clerking for Second Circuit Court of Appeals Judge Walter Mansfield, he spent a year with a corporate law firm in New York City.

In 1973, Geller began his career as a government attorney when he joined the Watergate Special Prosecution Force headed by Archibald Cox. For two years there, he concentrated mostly on criminal matters in a job which he remembers as both interesting and quite exciting.

As an Assistant to the Solicitor General, a position that he moved to in 1975, Geller continued to work primarily on criminal matters. In 1979, Solicitor General Wade McCree selected Geller to fill the prestigious position of Deputy Solicitor General overseeing general civil litigation. "This job is fascinating," he says. "It's probably the best job I'll ever have."

Geller also often serves as a faculty member for appellate advocacy courses sponsored by the American Bar Association and by the National Association of Attorneys General.

In December 1983, President Reagan presented him with the "Distinguished Executive in the Senior Executive Service" award.

Geller enjoys his work in the FOIA area. "It is still a relatively new statute," he notes. "Some significant questions remain to be answered. And it is extremely important that the law be applied correctly. If it develops incorrectly, that will have a severe adverse impact on government operations, or on the public's legitimate interest in reviewing government activity, or on personal privacy. What I'm trying to do is make certain that the courts fix the right balance."

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Updated August 13, 2014