Judge Rules Against "Secret Law" in Center for Effective Government Lawsuit

by Gavin Baker, 12/18/2013

A federal judge ruled yesterday in favor of the Center for Effective Government, ordering the federal government to release documents we requested under the Freedom of Information Act (FOIA). Specifically, the court ordered the government to disclose the Presidential Policy Directive on Global Development, a 2010 document also known as PPD-6.

Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia rejected government arguments that the document was exempt from FOIA under the presidential communications privilege. The decision is the first of its kind to consider whether a presidential policy directive can be withheld from the public under that privilege, which is part of FOIA's Exemption 5.

The directive ordered reforms of U.S. global development policy – including, ironically, increased transparency of foreign aid. President Obama announced the directive in 2010, but the administration refused requests to release the directive's text. A presidential policy directive is an order issued by the president – similar to an executive order but typically not published. Traditionally, presidential policy directives deal mostly with national security decisions, though not always, as in this case.

In 2011, we filed FOIA requests for the document with the State Department and the U.S. Agency for International Development, both of which were denied. The agencies also denied our appeals, and efforts to mediate the case through the Office of Government Information Services were unproductive. We filed suit in April, represented by lawyers from Public Citizen Litigation Group.

The case has important implications for public access to government policies and decisions. Huvelle was decisive in rejecting the government's argument that any communication originating with the president could be kept secret under the presidential communications privilege, even if the communication has legal effect and is implemented broadly throughout the executive branch. To accept that argument, Judge Huvelle wrote, would be to permit "what is in effect governance by 'secret law.'"

In fact, as Huvelle noted, a key purpose of FOIA was specifically to prohibit secret law. As we wrote in March, "rules and laws inaccessible to the public are inherently antithetical to democracy." As citizens, we have a right to know about government decisions – so that we can debate those decisions, try to improve them, and hold our officials accountable for them.

As Huvelle pointed out, previous cases with disputes about "secret law" have dealt with the deliberative process privilege, rather than the presidential communications privilege claimed in our case, making it a novel issue. But the same principles apply, Judge Huvelle wrote – otherwise, "there would be no effective limitation on a President's ability to engage in 'secret law.'"

We're gratified by Huvelle's strong decision in our favor, and we look forward to the release of the directive. We also hope the administration will reevaluate its approach to secret law. As we discussed in our March report, the administration's record on the issue has been mixed, with a few positive steps but no coherent position overall. The administration now has an opportunity to take a firm stance against secret law, which would befit the legacy of transparency to which President Obama aspires.

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Currently there is another "secret law" case pending before the D.C. District Court, 1:09-cv-01911, Tereshchuk v. B.O.P., wherein the FOIA requester has requested access to inspect all of the agency's Administrative Remedy Indexes and Responses. They are FOIA Section (a)(2) records because they are final agency decisions and opinions made in the adjudication of cases, but the agency in wrongfully withholding them, claiming they are too voluminous, but the Plaintiff doesn't know how to narrow the request because the indexes are kept secret. The agency doesn't even have a real FOIA reading room, but merely sets one up repeatedly, after a requester specifically identifies records wishing to be viewed. Although the reading room does not contain the adjudicative decisions of the agency, as rebuired by the FOIA, it is a room that someone would sit down in to read something like the PPD-6.

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