Public Communications Law Kimberly Law
Assignment #5

The President has requested Congress to authorize military force in Xanadu (he believes they are developing nuclear weapons and making assassination plots on national leaders) based on secret intelligence he has received. He presented Congress with 500+ documents to prove the reliability and credibility of this intelligence he received.

Before voting, Senator Felicia would like to view several of the documents that the President did not present to Congress so that she may decide how credible this intelligence really is. The Senator submits a request to the CIA and the Department of Homeland Security to produce these documents for review. All requests from both organizations are denied.

The Freedom of Information Act (FOIA) requires federal agencies to provide any person access to records, both paper and electronic, that are not included in any of the nine “exempt” categories. The first, among the nine exemptions, is National Security. Exemption 1 is the only exemption that allows the executive branch, not Congress, to determine the criteria for release of documents. It protects from disclosure of information, that an executive order declares, that could damage the national defense. It allows for the President and his attorney general to determine how national security records will be classified. In addition, the FOIA authorizes Judges to review classification decisions, but the courts will rarely order release any information that the executive branch has determined to be classified.

In the case, Students Against Genocide v. Dep't of State, 50 F. Supp. 2d 20 (D.D.C. 1999), the plaintiff citizens’ organizations, congressmen, and individuals filed a Freedom of information Act (FOIA) action to acquire information from the defendant (government agencies) regarding human rights violations in Bosnia. The defendant (government agencies) then filed a motion for summary judgment stating that their withholding of information was proper based on exemption 1 of the FOIA.

The court held that in order to meet their burden of proof, defendants had to provide affidavits that would provide specific explanations as to why the requested information fell into the exemption. The court found that the affidavits were afforded substantial weight because the case was a national security case. Finally, defendants' affidavits were specific, and there was no evidence defendants acted in bad faith. Summary judgment was granted.

In addition, the following case, Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007), is additional case law based on exemption 1 of the Freedom of Information Act. The plaintiff journalist filed a motion based on the FOIA for documents pertaining to a CIA officer that had connections with the accused assassin of a US President. The CIA disclosed some records but claimed that some were exempt under FOIA and the Central Intelligence Agency Information Act of 1984.

Upon appeal, the court affirmed in part and reversed in part. It affirmed the CIA's use of the correct standard for FOIA requests, and its reasons for withholding under FOIA Exemptions 1, 3, and 7.

The above referenced case law is applicable to our case based on both Appellate courts upholding the defendant’s request for exemption 1 of the Freedom of Information Act. The release of documents that the executive branch has declared to be a breach of national security is prohibited.

This case clearly falls under exemption 1 of the FOIA, therefore, Senator Felicia’s request should not be granted.