Amicus Brief of the Washington Legal Foundation in Support of the Department of Justice


STUDIES, et al. )
Plaintiffs, )
v. )
Defendant. )
Judge Kessler

Civil Action No. 01-2500



The interests of amici curiae Washington Legal Foundation and the Jewish Institute for National Security Affairs are presented in the accompanying Motion for Leave to File Memorandum as Amici Curiae.


Plaintiffs’ lawsuit challenges the Justice Department’s refusal to provide them with certain information they requested regarding the ongoing investigation of the unprecedented terrorist attack on America on September 11, 2001. In particular, the Plaintiffs have requested information regarding the apprehension and detention of several hundred aliens in connection with the investigation. Plaintiffs seek the release of the identities of those detained, the circumstances of their arrest or detention, the identities of their attorneys, and the identity of courts issuing any sealing orders as well as the orders themselves.

Those suspects who have been arrested or detained in the wake of the September 11 attack fall generally into three categories: 1) those charged with violating immigration statutes; 2) those charged with violating criminal laws; and 3) those who are material witnesses to a potential prosecution. The Department of Justice has responded to Plaintiffs’ request by releasing much of the information, particularly with respect to those who have been charged with criminal offenses. With respect to the bulk of the detainees, namely those charged with immigration law violations, the Department has also released many details about the detenees, including the detainees’ place of birth, the date they were charged, and the immigration charge itself.

The Department, however, refuses to release documents that would identify the detainees by name as well as the names of their attorneys. In support of its refusal to do so, the government relies primarily on three exemptions in the Freedom of Information Act (FOIA): Exemptions 7(A), 7(C), and 7(F). Exemption 7(A) permits the government to withhold information that “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. §§ 552(b)(7)(A). Exemption 7(C) allows the withholding of information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §§ 552(b)(7)(C). Finally, Exemption 7(F) allows the agency to withhold information that “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. §§ 552(b)(7)(F).

The Department has provided cogent and compelling reasons, supported by the Declaration of James S. Reynolds, as to why the release of the remaining information requested by the Plaintiffs could substantially undermine the continued investigation of the attack on America, as well as make it more difficult to prevent future terrorist threats or attacks.

Although this case is being litigated primarily as a Freedom of Information Act case, the Plaintiffs have raised First Amendment and common law claims as well. Indeed, Plaintiffs’ original October 29, 2001 request seeking the names of the detainees, their attorneys, and related information, first asserted that they were entitled to the documents under the Constitution and common law right of access. Amici will focus their arguments primarily on Plaintiffs’ common law claim, and will also briefly address the Exemption 7(C) issue with respect to the privacy of those who have been detained.

In short, amici submit that the Defendant’s refusal to provide the information in question is not only well justified under the law, but is also in the national and public interest. Accordingly, we urge the Court to grant the Defendant’s Motion for Summary Judgment and deny the Plaintiffs’ Cross-Motion for Summary Judgment.


Plaintiffs argue that the common law right of access to public records entitles them to obtain the identities of those aliens who have been arrested or detained. Plaintiffs’ Cross-Motion at 41. As will be demonstrated, the Plaintiffs cannot invoke the common law right of access because with respect to agencies within the Executive Branch, the law governing the release of agency documents is governed exclusively by the Freedom of Information Act.

As an initial matter, the Plaintiffs seem to have both broadened the scope of documents subject to their common law claim in some respects, and narrowed it in other respects. In their Amended Complaint, Plaintiffs invoke the common law and First Amendment, but only with respect to agency records that are “also court records.” Yet in their Cross-Motion, Plaintiffs argue and cite cases only for the proposition that the common law applies to “other public records,” that is, records other than judicial or court records “concerning judicial proceedings” and which have been “traditionally available to the public” such as police arrest records. Plaintiffs’ Cross-Motion for Summary Judgment at 41.

Thus, Plaintiffs are now expanding their common law right of access claim to agency documents that are not also court or judicial records, nor deal with any “judicial proceedings,” but have failed to amend their Complaint accordingly. At the same time, by limiting their common law argument in their cross-motion to arrest or detention records only, they have narrowed, and thus apparently abandoned, their original common law claim for all “requested agency records” that are also court records (Plaintiffs’ Amended Complaint, 59-61), including the names of attorneys representing any detainee, and court orders sealing any proceeding involving any detainee. Regardless of the scope and contour of the Plaintiffs’ common law claims, amici will demonstrate that the law governing the release of agency documents is the FOIA rather than the common law.

It is true, as the Plaintiffs state, that the Supreme Court noted in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), that “the courts of this country recognize a general right to inspect and copy public records and documents.” Id. at 597. Plaintiffs’ Cross-Motion at 41. But the courts that the Supreme Court were referring to were state courts, which in turn had recognized the common law doctrine of access to public records belonging to state courts and agencies. Accordingly, “[a]t least as it applies to the federal government, the reach of this common law right is far from clear.” Washington Legal Foundation v. U.S. Sentencing Comm’n, 89 F.3d 897, 898 (D.C. Cir. 1996) (WLF II). While both Nixon and WLF II dealt with putative public records within the federal judicial branch, the primary question raised by Plaintiffs is whether there is a federal common law right of access to federal executive agency records (regardless of whether they may also constitute a judicial record). While the Supreme Court has never directly answered this question, and while the government in its initial filing rejected the argument out of hand as “simply without merit,” without citing any authority, see Government’s Motion for Summary Judgment at 33, n.4, amici submit that a further discussion of the issue is warranted to better understand the relationship of the common law with statutory Right-to-Know laws, in order to resolve Plaintiffs’ claim.

While the common law of some states is very restrictive in defining what is a “public record” subject to public access, limiting the definition to only those records required by law to be kept, the definition of public record in other states such as New Jersey is quite broad. See, e.g., Loigman v. Kimmelman, 505 A.2d 958, 961 (N.J. 1986); City Council of Santa Monica v. Superior Court of Los Angeles County, 21 Cal. Rptr. 896, 899 (1962) (deeming a public record “[a]ny record . . . which [an officer] keeps as necessary or convenient to the discharge of his official duties”) (emphasis added). See WLF II, 89 F.3d at 904-05 (canvassing jurisdictions); see also Project: Government Information and Rights of Citizens, 73 Mich. L. Rev. 971 (1975).

Regardless of the scope of the definition of “public record,” in order to obtain a document under the common law, whether under state common law or federal common law, the courts employ a two-step process: first, the court determines whether the document in question is a “public record,” and second, whether the interests advanced by the requester for the document’s disclosure outweigh the government’s interest in keeping it secret. See Washington Legal Foundation v. U.S. Sentencing Comm’n,, 17 F.3d 1446, 1452 (D.C. Cir. 1994) (WLF I). As this Court summarized the process, “[e]ven if a document can be considered a public record . . . the public does not automatically have a right of access to it. Instead, after determining that a document is a public record, a court must then `proceed to balance the government’s interest in keeping the document secret against the public’s interest in disclosure.’” Pentagen Technologies Int’l Ltd v. Committee on Appropriations of the U.S. House of Reps., 20 F. Supp. 2d 41 (D.D.C. 1998) (quoting WLF II at 899 and WLF I at 1452). Thus, a common law “public record” is not automatically disclosable, but only can be released when the interests in its disclosure and keeping it secret are properly balanced by the court using its sound discretion.

At the same time, many states have codified their common law by enacting various Right-to-Know laws, or have even expanded the common law definition of what constitutes a “public record.” See Nixon, 435 U.S. at 598, n.7. But other states, like New Jersey, have chosen to narrow their broad common law definition of public record, but have not otherwise revoked or abrogated the common law. See, e.g., Higg-A-Rella, Inc. v. County of Essex, 647 A.2d 862, 864 (N.J. App. Div. 1994). In those states, a requester could request a document by invoking either the common law or statute, or both. See id. at 864-65 (document requested is not public record subject to New Jersey’s Right-to-Know law, but is a public record under its common law). The trade-off by invoking the statute for documents is that under a state Right-to-Know law, the requester’s interest and the nature of the statutorily defined “public record” is not relevant and need not be weighed by a court in determining whether to release the document. In other words, the identity and interest of a requester under state right-to-know laws, as well as under the federal FOIA, are essentially irrelevant.

The question remains as to whether the common law is nevertheless applicable to other branches of the federal government besides the judicial branch. In Schwartz v. Dep’t of Justice, 435 F. Supp. 1203 (D.D.C. 1977), aff’d, 595 F.2d 888 (Table) (D.C. Cir. 1979), the district court denied a motion by then-Congressman Peter Rodino, Chairman of the House Judiciary Committee, to dismiss a common law claim filed against him to inspect a document he possessed. In doing so, the court observed that “all three branches of government * * * are subject to the common law right” and that the Freedom of Information Act, which does not apply to Congress (nor to the federal courts), is not in conflict with the common law right. Id. See also Mayo v. U.S. Gov’t Printing Office, 9 F.3d 1450 (9th Cir. 1993) (GPO, while exempt from FOIA because it is an arm of Congress, is subject to common law right, but document requested is not public record); Pentagen Technologies Int’ls, Ltd. v. Committee on Appropriations of the U.S. House of Reps., 20 F. Supp. 2d 41 (D.D.C. 1998) (congressional committee subject to common law, but record sought is investigative in nature rather than a recording of official action taken, and thus, not a public record under WLF II).

Thus, while this Court in Schwartz opined that as a “general rule” the common law right of access to documents covers all three branches of government, including the executive branch, it was clearly referring to state common law rather than federal common law, and did not consider, let alone hold, that the common law applies to federal executive branch agencies. See Schwartz, 435 F.Supp. 1203 (citing state cases).

In 1966, Congress enacted the federal FOIA as a broad and comprehensive statute to govern the release of documents within the executive branch agencies. 5 U.S.C. §§ 552, et seq. To the extent that there had been a federal common law right to any such documents, FOIA can be viewed as not only codifying the common law, but going further by broadly defining an agency record subject to disclosure to include documents other than those that simply record official actions or are required by law to be made. No showing of any need for the document by the requester is required to be made. Some of the exemptions in FOIA, however, codify to some extent the balancing of interests process that exists in the common law, by either categorically exempting the document from disclosure regardless of the interest of the requester, (e.g. FOIA Exemption 4 governing disclosure of trade secrets), or by requiring that competing interests be weighed by the agency (and a reviewing court), such as those in FOIA Exemptions (b)(6) and (b)(7)(C) to determine what constitutes an “unwarranted” invasion of personal privacy.

Thus, as a practical matter, it would be wholly unnecessary to invoke the common law with respect to documents in the hands of federal agencies, assuming such a right exists, because FOIA greatly expands upon the common law definition of “public record” and generally eliminates the balancing process to determine the document’s releasibility. But more importantly, as a legal matter, Congress has displaced or supplanted the common law with FOIA as the governing body of law with respect to disclosure of Executive Branch records, even though Congress failed to expressly refer to or abrogate any common law right to such records in enacting FOIA.

The legal standard that applies in determining whether Congress has abrogated federal common law is more lenient than the standard that Congress must meet to express its intention to preempt state law. “Unlike the determination of whether federal law preempts state law which requires evidence of a clear and manifest congressional purpose to pre-empt state law, the determination of whether federal statutory or federal common law governs starts with the assumption that it is for Congress, not federal courts, to articulate appropriate standards to be applied as a matter of federal law.” City of Milwaukee v. Illinois, 451 U.S. 304 (1981); id. at 312-17. For example, even where Congress has addressed an issue, such as general maritime law, but has never “enacted a comprehensive maritime code” dealing with all aspects of the award of damages for injuries suffered on the High Seas, the statute, however limited in scope, nevertheless “announces Congress’ considered judgment” on the issue and “speaks directly to a question” which cannot be supplemented by the courts by invoking federal common law. Id. at 315 (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)).

As the Supreme Court emphasized, “Our `commitment to the separation of powers is too fundamental’ to continue to rely on federal common law `judicially decreeing what accords with `common sense and the public weal’ when Congress has addressed the problem.” 451 U.S. at 315 (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)). There can be no doubt that Congress “spoke directly” and quite comprehensively to the issue of how requests for agency documents should be handled when it enacted the FOIA.

Accordingly, Plaintiffs have no federal common law right of access to any of the agency records requested, regardless of whether those documents also constitute a judicial record (although, as noted, Plaintiffs have apparently abandoned their request for documents that have dual status). Because the Plaintiffs have no federal common law right of access to the information identifying the detainees, it is unnecessary for this Court to consider whether the record requested is a “public record” for purposes of the common law, and that even if it were a public record, whether it should be disclosed after balancing the interests of the government with the interests of the requester.


In addition to invoking FOIA Exemptions 7(A) and 7(F) for withholding the names of the detainees, the Justice Department also relies on FOIA Exemption 7(C). As noted, Exemption 7(C) permits the agency to withhold documents, the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). That exemption provides the government with an additional reason to withhold the release names of detainees not charged with criminal violations, and for which there is no court order sealing the record. The government has advanced a reasonable argument that the release of names of the detainees who are being held for various non-criminal immigration violations could reasonably be an “unwarranted invasion of personal privacy,” particularly with respect to those who have been released, or who have been deported either voluntarily or under administrative order. See Defendant’s Motion for Summary Judgment at 21-27. Amici submit that the privacy interests asserted are substantial and that the plaintiffs’ countervailing arguments are insufficient to warrant disclosure.

With respect to Exemption 7(C), the Supreme Court held in Department of Justice v. Reporters Committee, 489 U.S. 749 (1989), that a “categorical decision [rather than a case-by-case approach] may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction.” 489 U.S. 749, 776. Prior to this ruling, this Circuit “had routinely resolved particularized inquiries in favor of withholding the names and address of private individuals appearing in law enforcement files.” SafeCard Services, Inc. v. Securities and Exchange Comm’n, 926 F.2d 1197, 1206 (D.C. Cir. 1991) (collecting cases). Accordingly, this Circuit accepted the Supreme Court’s invitation in Reporters Committee and developed a categorical rule regarding the applicability of Exemption 7(C), namely, that “unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.” Id.

Here, the Plaintiffs have submitted a number of press accounts of mistreatment as voluntarily recounted by the detainees or their attorneys. Some of these complaints, however, deal with temporary inconveniences and hardships experienced while in confinement, but do not rise to the level of “illegal activity” by the agency. Cf. Jefferson v. Department of Justice, 2002 U.S. App. LEXIS 5778, *20-21 (D.C. Cir. April 2, 2002) (news clipping that DOJ is inundated with federal prisoner complaints does not raise sufficient claim of agency illegal activity). Other articles, however, recount more serious allegations of abuse such as beatings, which could give rise to legal actions where the allegations could be confirmed or refuted.

Yet even with respect to those press accounts, the Plaintiffs have never explained how revealing the names of all the detainees “is necessary” to “confirm or refute” the statements already voluntarily made by the inmates, their attorneys, or other representatives regarding any illegal activity. The inmates or their representatives have voluntarily talked to the media and other investigative bodies, including the Senate Judiciary Committee. See Plaintiffs’ Motion for Summary Judgment at 21. Plaintiffs are free to contact those individuals who are not incarcerated and who have voluntarily disclosed their identities to double-check their stories in order to confirm or refute them. But simply releasing the names of all the detainees does not necessarily “confirm or refute” any illegal activity. As Plaintiffs themselves noted, the treatment of these detainees has been the subject of intense interest by the media and the elected representatives in Congress, all of which sufficiently informs the public as to what the “government is up to.” Any further release of names would add nothing, or at best, marginal value to the public debate. Accordingly, the privacy interests of the detainees should remain intact.

Amici further note that some the plaintiffs or their sister organizations have been given access to several facilities housing many of the detainees in question. See ACLU Press Release, Advocacy Groups Hold Rights Trainings For Jailed INS Detainees, March 13, 2002 (Exhibit 1). In addition, the Department of Justice’s Executive Office for Immigration Review (EOIR) has an extensive outreach program actively requesting pro bono legal assistance for detained aliens in immigration proceedings. See DOJ EOIR Press Release, Pro Bono Assistance Needed for Detained Individuals in South Florida, February 13, 2002 (Exhibit 2). Indeed, while detainees are free to have their names and identities disclosed, some of them may have affirmatively instructed their counsel and representatives of plaintiffs’ organizations not to release their names for fear of unwarranted stigmatization.

But even if Plaintiffs are correct that the release of the names are necessary to confirm or refute illegal activity, SafeCard does not stand for the converse proposition that the information must be categorically disclosed. Rather, the default process is triggered, namely, as in the pre-Reporters Committee line of cases, where the court is required to weigh the competing interests on a case-by-case basis, and perhaps even on a name-by-name basis. Amici submit, however, that the Court need not engage in that difficult process, for the Defendant’s reliance on Exemption 7(C) makes the requisite showing of an unwarranted invasion of personal privacy, and even if it did not, Exemptions 7(A) and/or 7(F) are nevertheless applicable justifying the withholding of the names of the detainees.


For the foregoing reasons, and those presented by the Defendant in its Motion for Summary Judgment, amici urge this Court to grant the Defendant’s Motion for Summary Judgment and to deny the Plaintiffs’ Cross-Motion for Summary Judgment.
Respectfully submitted,

Daniel J. Popeo
Paul D. Kamenar
Washington Legal Foundation
2009 Massachusetts Ave., NW
Washington, D.C. 20036
(202) 588-0302

Dated: April 15, 2002


I hereby certify that a copy of the foregoing Amici Curiae Memorandum of the Washington Legal Foundation and the Jewish Institute for National Security Affairs In Support of Defendant’s Motion for Summary Judgment and In Opposition to Plaintiffs’ Cross-Motion for Summary Judgment and Exhibits thereto were sent this 15th day of April, 2002, by first-class mail, postage pre-paid, to the following counsel, and by email this same day to lead counsel Arthur B. Spitzer, as well as a hand-delivering a copy to him on the morning of April 16, 2002:

Arthur B. Spitzer
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: 202-452-1868

Kate Martin
Marcia T. Maack
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
fax: 202-994-7005

David L. Sobel
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009
fax: 202-483-1248

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: 212-549-2651

Elliot M. Mincberg
People For the American Way Foundation
2000 M Street N.W., Suite 400
Washington, D.C. 20036
fax: 202-293-2672

David J. Anderson
Anne L. Weismann
Lisa Olson

Carol Federighi
U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
fax: 202-616-8470


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