CEG Joins Brief in Case Challenging Secret Presidential Orders
by Gavin Baker, 4/9/2014
The Center for Effective Government joined Public Citizen and other open government groups on April 7 in filing an amicus brief in a key lawsuit under the Freedom of Information Act (FOIA). The case, Electronic Privacy Information Center (EPIC) v. National Security Agency (NSA), could limit the public's ability to access documents that set policy for executive branch agencies.
EPIC sought the disclosure of National Security Presidential Directive 54, a presidential order setting federal cybersecurity policy. However, the U.S. District Court for the District of Columbia ruled that even though the directive had been sent to federal agencies, it was not an "agency record" subject to public requests under FOIA. EPIC is appealing that decision.
The implications of the lower court's ruling, if allowed to stand, are alarming. The White House, which is not subject to FOIA, could block the public from accessing any documents it produces, even if an agency has possession and control of a document. If the appeals court rules in favor of the NSA, it could blow a huge hole in FOIA and the public's ability to hold an administration accountable for its actions.
As U.S. District Court Judge Ellen Huvelle noted in Center for Effective Government v. Department of State, our successful challenge last year to the misuse of the executive privilege exemption, the president cannot "be permitted to convey orders throughout the Executive Branch without public oversight–to engage in what is in effect governance by 'secret law.'" Yet that is exactly what could be allowed if the circuit court affirms the ruling in EPIC v. NSA, by declaring an order that does just that to be beyond the reach of FOIA.
As Judge Huvelle noted in our case, a key purpose of FOIA is specifically to prohibit secret law. As we wrote last year, "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.