On January 8 2016 the US Supreme Court will consider a petition for
certiorari in the EPIC v. DHS "Standard Operating Procedure 303" FOIA
suit. SOP 303 is also known as the 'National Emergency Wireless Kill-Switch'
“Standard Operating Procedure 303,” is the protocol that codifies a
“shutdown and restoration process for use by commercial and private
wireless networks during national crisis.”
Moreover, the justices are expected to clarify: “the scope of FOIA’s
“Exemption 7(F),” which allows the government to withhold “records or
information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or
information … could reasonably be expected to endanger the life or
physical safety of any individual.”
The central question raised by Exemption 7(F) is whether the
government has to be able to identify with any specificity the
“individual” whose life or physical safety might be endangered by
disclosure of the requested law enforcement records. In 2008, the Second
Circuit answered that question in the affirmative in ACLU v. Dep’t of
Defense. In its February 2015 decision affirming the government’s
rejection of EPIC’s FOIA request, the D.C. Circuit held expressly to the
contrary. As I explain in the post that follows, not only is this
division of authority sufficiently important so as to justify the
Supreme Court’s intervention no matter how the Court ultimately rules,
but, in my view, the Second Circuit clearly has the better reading of
Exemption 7(F) as a matter of statutory purpose, structure, and policy.
I. The Second Circuit and the PNSDA
The story begins with FOIA requests filed in 2003 by the ACLU and
other organizations seeking records related to the treatment and death
of detainees held in US custody overseas after September 11, and records
related to the practice of “rendering” some of those detainees to
countries known to use torture. The litigation over the ACLU’s request
eventually reduced to a dispute over at least 29 (and perhaps thousands
of) photographs of detainees and detainee abuse in Afghanistan and Iraq.
In June 2006, the district court ordered the release of 21 of those
photographs (with proper redactions to alleviate privacy objections),
and the government appealed, arguing that the photographs were covered
by Exemption 7(F) insofar as their release would likely incite violence
against US personnel in Afghanistan and Iraq.”
In full with links at Just Security
https://www.justsecurity.org/28485/foia-circuit-split-supreme-court-resolve/
--
RR
"You might want to ask an expert about that - I just fiddled around
with mine until it worked..."
