Saturday, August 1, 2009

Lardner Scores FOIA Victory

In April of 2008, George Lardner - an associate at the Center for the Study of the Presidency and Congress and a former Washington Post reporter - submitted a Freedom of Information Act (FOIA) request to the Office of the Pardon Attorney (OPA) in the Department of Justice (DOJ), Lardner requested the identities of all individuals whose requests for pardons and commutations of sentence were denied by George W. Bush. The OPA declined to deliver any such list (although it maintained one) citing FOIA Exemptions 6 and 7(C) as the basis for withholding the information. Lardner appealed the denial, waited a while and then filed suit.

Exemption 6 permits an agency to withhold information contained within "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Interpreting the phrase "similar files" in a very liberal fashion, the OPA argued disclosure of the names of unsuccessful applicant would create a "double stigma" because it would publicly reveal "the fact of an individual's federal criminal conviction" and the fact that he/she "was deemed unworthy of clemency."

But a U.S. District Court judge noted that a listing, such as the one Lardner requested, would not include "substantive, personal information" and observed that the very high rejection rate for applications could not reasonably "stigmatize." Indeed, rejection/failure is the "norm" in this context. In addition, the judge noted that the OPA has a "long-standing practice" of "freely" disclosing the fact of denial (a "public act") if it receives an inquiry about any individual by name. In this sense, the court declined to compare a listing of failed pardon applicants to the "rap sheets" of criminal defendants or private communications which reveal the actual substance of decision making in the clemency process.

If Exemption 6 made for a weak argument, Exemption 7(C) seemed downright lame. It protects "records or information compiled for law enforcement purposes" from disclosure if they constituted "an unwarranted invasion of personal privacy." The translation of a list of applicants' names into "law enforcement" data made plain that the OPA was not adhering to the FOIA guideline that "all underlying facts and inferences are analyzed in the light most favorable to the FOIA- requester." Instead, in this instance, the OPA was simply using what power it could wield, for what ever reason(s), to set up as many unnecessary bureaucratic obstacles between citizens and their "right to be informed about what their government is up to." It was that special kind of experimental wall that could stand for decades, if not centuries, absent the trouble of litigation.

U.S. Attorney General Eric Holder has officially declared that - so far as FOIA requests are concerned - the Obama administration will usher in "a new era of open government." The principles of "openness and transparency" are to restore "the presumption of disclosure." Nonetheless, Mr. Lardner had to reach his goal by litigation. And, at the same time, as readers of this blog are aware, the OPA has unilaterally declared that it will no longer issue public affairs notices when pardons and commutations are granted.

See full text of the court ruling here.

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