from the stay tuned dept
Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee’s giant locked up report on the CIA’s torture program. And someone — namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan — has jumped up to try. But, first, some background.
The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).
This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a “common law right of access” (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).
It’s important to note that, normally, Congress is exempt from FOIA, so it’s generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the “speech and debate clause” of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.
That takes us to today’s ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:
As precedent makes clear, none of Judicial Watch?s
counterarguments have merit. That its lawsuit seeks ?only the
disclosure of public records,? rather than to establish criminal
or civil liability, does not render the Speech or Debate Clause
inapplicable. Appellant Br. 10. To the contrary, Judicial
Watch ?is no more entitled to compel . . . production of
documents . . . than it is to sue congressmen.? Brown &
Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C.
Cir. 1995). To the extent Judicial Watch maintains that
?legislative independence is not at issue in this case? because
it seeks ?public records that are not confidential in nature,? it
misunderstands the immunity afforded by the Speech or Debate
Clause. Appellant Br. 10?11. Notwithstanding the records?
confidentiality, ?legislative independence is imperiled? when a
?civil action . . . creates a distraction and forces [congressmen]
to divert their time, energy, and attention from their legislative
tasks to defend the litigation.? Eastland, 421 U.S. at 503; see
Brown & Williamson Tobacco Corp., 62 F.3d at 415.
The majority ruling does note that it won’t get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.
Today, the court has no occasion to decide whether the
Speech or Debate Clause bars disclosure of public records
subject to the common-law right of access in all circumstances.
Nor need it consider whether and how the application of the
Clause relates to the two-step inquiry to determine whether the
common-law right of access applies. See Washington Legal
Found. v. U.S. Sent?g Comm?n, 17 F.3d 1446, 1451 (D.C. Cir.
1994). The parties did not raise, and our precedent does not
address those issues.
However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:
I agree with my colleagues that, under our precedent, the
Speech or Debate Clause of the United States Constitution bars
Judicial Watch?s lawsuit. But I join in the judgment only; I
believe, in the right case, the application of the Speech or
Debate Clause to a common law right of access claim would
require careful balancing….
She then more or less begs for a test case on this question:
We have never considered the Speech or Debate Clause?s
application to a common law right of access claim and the
parties simply cite a single district court case where the two
doctrines were raised, Pentagen Technologies International v.
Committee on Appropriations of the United States House of
Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff?d, 194
F.3d 174 (D.C. Cir. 1999) (unpublished table decision).
Pentagen Technologies, the plaintiffs brought a common law
right of access claim against the Committee on Appropriations
of the United States House of Representatives, seeking ?to
review and copy a series of investigative reports? that were not
released to the public. 20 F. Supp. 2d at 42. The Committee on
Appropriations asserted the reports were protected from
disclosure by the Speech or Debate Clause. Id. at 43. Although
the district court ?conclude[d] that investigative reports [were]
protected from compulsory disclosure by the Speech or Debate
Clause,? it reached that conclusion only after determining that
the investigative reports were ?not ?public records? as defined
by WLF II? and that ?[t]here thus exist[ed] no common law
right of access to the reports.? Id. at 45. If the Speech or Debate
Clause in fact provided absolute protection from disclosure?
including protection from a common law right of access
claim?the district court?s ?public records? analysis would
have been unnecessary.
And thus, the judge argues, if a record is a public record, then it’s certainly possible that the speech and debate clause would not block a common law right of access.
So… that’s interesting.
As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA’s torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted “executive summary” (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.
That didn’t happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren’t any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.
Which takes us back to today’s ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:
Judge Henderson explained that if a sought document is a ?public record,? the government?s interest in keeping the document secret should be balanced against the public?s interest in disclosure. Judicial Watch at *11. A ?public record,? she notes, is ?a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived.? Id., quoting WLF-II, 89 F.3d at 905.
The Torture Report is a public record under this longstanding framework and today?s decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.
This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress’s protective walls.
This seems especially relevant now, as a judge is permitting some info from the CIA’s torture program in a terrorism case in Guantanamo.
When asked about this new public access request, McClanahan told me:
Judge Henderson’s concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn’t fall within the scope of the Speech or Debate Clause. It’s hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA’s controversial torture program. We hope that this new decision clarifying the public’s right to know such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.
I hope he’s right, though I imagine it’s going to take a few years and some fierce legal battles before we know for sure.
Filed Under: access, adam schiff, cia, common law rights of access, congress, doj, foia, kel mcclanahan, public records, richard burr, shawn musgrave, speech and debate, torture report