WASHINGTON – When the government processes a public records request and discloses information, the person or group asking for the documents is generally free to share them with the world. Documents are posted online. News releases are distributed. People talk.
But that might not happen in a pending case in Washington’s federal trial court. The U.S. Justice Department is advocating for a protective order and a “claw back” agreement that would block an advocacy group, at least temporarily, from revealing any information the Department of Homeland Security hands over.
The claw-back component would permit the government to take back a document previously disclosed to the Electronic Privacy Information Center (EPIC), the plaintiff in the case.
At a hearing Jan. 7 in Washington, Justice Department lawyer Lisa Marcus described the provisions—rare if not unprecedented in the context of Freedom of Information Act litigation—as a “safety net” for the government in the event that classified information is unintentionally disclosed to the privacy center.
EPIC in March 2012 sued Homeland Security for information about a cybersecurity program set up to help minimize attacks against defense contractors. The Washington Post published an article about the program in 2011.
Specifically, the advocacy group asked for, among other things, contracts and communication between the department and major defense contractors; analysis and legal memos about the pilot program; and any privacy assessment performed in the development of the program.
EPIC said its goal is to determine “whether a particular cybersecurity strategy may run afoul” of communications privacy laws.
“The timely release of information responsive to EPIC’s FOIA request is vital to inform the public about a timely matter of profound national concern that is pending” in Congress and the White House, the challengers said in November.
The Justice Department said last month that the government has reviewed more than 2,000 pages of documents. Some of the information is classified. Other documents are not. Thousands of more potentially responsive documents must still be reviewed. As of today, the government hasn’t turned over a single page to the challengers.
Marcus, a lawyer in the federal programs branch of the Justice Department’s Civil Division, in court Jan. 7 called the case “extraordinarily difficult” based on the number of federal agencies that must review documents, the number of pages themselves and the sensitivity of the information.
The Justice Department, in fairness, did not first raise the idea of a protective order. U.S. District Judge Gladys Kessler, presiding over the dispute, floated the idea. But the government is fighting for it now.
In October, Kessler, noting that some of the responsive information in the case is classified, ordered the lawyers to develop a protective order and a “claw back” agreement. EPIC lawyers in November asked the judge to reconsider. That request was the centerpiece of the Jan. 7 hearing.
“Pulling down classified information from the Internet is like trying to put Humpty Dumpty back together,” Marcus told Kessler during one exchange. The Department of Homeland Security, Marcus said, “takes very seriously” its obligation to protect classified information.
Ginger McCall, director of EPIC’s open government program, argued that the government should not be allowed to block the organization from releasing any information it receives—even if the protective order is only temporary.
“We can’t see a basis for a protective order where no document has been produced,” McCall said in court. She noted that, while rare, federal agencies from time to time do ask a public records recipient to return a document that’s been inadvertently disclosed.
At the court hearing, Kessler seemed sympathetic, at times, to the challengers. Just having the requested information, the judge noted, doesn’t do the plaintiffs any good if they can’t freely share the documents at large.
The judge also seemed concerned about one part of the document review process that’s chewing up time—transporting documents among federal agencies. A Homeland Security official, James Holzer, said in a declaration in September, that “the actual time it takes to physically deliver the documents to those agencies and receive them back is tripled.”
Kessler was dumbfounded.
“I don’t understand why it takes triple the ordinary amount of time to transport these documents back and forth between federal agencies,” she said at one point. She urged the government to get an “appropriate credentialed currier.”
Marcus didn’t have an answer why it takes “triple” the time to transport the documents. She tried to keep the judge focused on the fact that the review of the information, and not the movement of documents from one agency to another, is the most time-consuming part of the process.
“All I can say is the government’s going to have to get faster curriers,” Kessler said. “That’s ridiculous—triple the amount of time.”
Kessler didn’t immediately rule after the hearing. But the judge said she’d get out an order in the next day or two.
@|Mike Scarcella, a reporter at The National Law Journal, an affiliate, can be contacted at firstname.lastname@example.org.