9th Circuit Says Government Can’t Withhold Telco Immunity Names on Privacy Grounds
A federal appeals court rejected a government effort to withhold on privacy grounds the names of telcos and their lobbyists that argued for retroactive immunity in lawsuits over the National Security Agency’s illegal surveillance program. But in a decision Tuesday, the 9th U.S. Circuit Court of Appeals in San Francisco disagreed with a district judge who had ruled that the government must also disclose the lobbyists’ e-mail addresses, and told the judge to review whether the government can withhold the names under a different exemption in the Freedom of Information Act from the one under consideration in this ruling. The 9th Circuit also told the district court to do a more detailed review of the documents to exclude from disclosure letters exchanged only within the executive branch.
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“Government acknowledgment of a lobbyist’s lobbying activities does not reveal ’sensitive personal information’ about the individual rising to a ‘clearly unwarranted invasion of personal privacy,'” Judge Michael Hawkins wrote for the appeals court. “There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. … With knowledge of the lobbyists’ identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions. Such information will allow the public to draw inferences comparing the various agents’ influence in relation to each other and compared to the agents’ or their corporate sponsors’ political activity and contributions to either the President or key members of Congress.”
But the Electronic Frontier Foundation, which brought the lawsuit against the Justice Department and the Office of the Director of National Intelligence, “provides no argument, and we can think of none, countering our conclusion that the e-mail addresses may add to the risk of privacy invasion with little additional benefit to the public interest,” the court said. The court added, though, that e-mail addresses may be released if that’s the only way to identify the company’s agent.
In deciding whether names could be disclosed, the district judge failed to discuss FOIA’s exemption 3, said the appeals court, adding that the judge may have been confused by EFF and government filings. “The district court seemed to accept the government’s assertion that EFF abandoned its Exemption 3 challenge, but, then, when it found the government could not withhold the same documents under Exemption 6, it ordered them released without considering the documents for which the government also claimed Exemption 3.” Exemption 3 relates to disclosures barred by federal law.
Including letters circulated only among executive branch agencies “in a broad disclosure order was error under any standard,” the appeals court said. “While a district court’s broad rejection of an Exemption 5 withholding is not necessarily problematic, its inquiry should be fact-specific, and … the absence of a careful review of the record in this case warrants remand.” The government highlighted “a number of documents which it convincingly argues the district court improperly found were not inter-agency or intra-agency memorandums,” the court said.
EFF is pleased the court ruled that the government may not withhold names on privacy grounds and “appreciates” that the court gave a “thoughtful” review to whether e-mail addresses pose a bigger threat to privacy, staff attorney Marcia Hofmann said. What’s “important” for open government is that the identities of telcos and their representatives are known, she said. It’s still unclear when the district court will take up the questions on the FOIA’s exemptions 3 and 5, she said.