OMB Watch: "Kagan Has Sided With Secrecy"

OMB Watch considers how Elena Kagan might treat FOIA cases on the Supreme Court (ht FOIABlog):

Kagan Has Sided with Secrecy

During her time as Solicitor General, Kagan has pursued five cases before the Supreme Court concerning application of the Freedom of Information Act (FOIA), the country's most fundamental open government law. In four of the five cases, she has argued in favor of government secrecy. Each time, the Court sided in favor of the government. The Court has not yet taken up the fifth FOIA case.

The most notable of the cases was Department of Defense v. American Civil Liberties Union, in which Kagan fought the release of photographs depicting the abuse of detainees while in U.S. custody. In her argument to the Supreme Court, Kagan stated, "In the judgment of the president and the nation's highest-ranking military officers, disclosure of the photographs at issue here would pose a substantial risk to the lives and physical safety of United States and allied military and civilian personnel in Iraq and Afghanistan." Kagan made this assertion despite the fact that the administration had already released Justice Department memoranda that detailed the policy and actions of U.S. personnel in torturing detainees because "the existence of that approach to interrogation was already widely known." In that case, the Supreme Court overturned a lower court decision to release the photographs.

In a different case, Kagan argued that it would violate physicians' privacy to release Medicare data on claims paid. Kagan's argument in Consumers' Checkbook v. Dept. of Health and Human Services was that the information could be combined with other publicly available Medicare fee information to figure out how much a physician earned each year. Consumers' Checkbook had argued that physicians' privacy did not outweigh the public interest in using the data to measure physician experience, quality, and efficiency. The Supreme Court refused to overturn a ruling from the Court of Appeals for the DC Circuit, which sided with the government and allowed the records to be withheld. The Court of Appeals decision had reversed the original ruling of the U.S. District Court for the District of Columbia, which found in favor of Consumers’ Checkbook and ordered the agency to release the records.

In two other FOIA cases, Kagan argued against disclosure of records sought by the public. Loving v. Department of Defense concerned a request for documents relating to the president's review of a military death sentence, and Berger v. Internal Revenue Service involved a request for an IRS officer's time sheets. In both of these cases, the Supreme Court chose not to review the cases, essentially siding with Kagan by default and letting the lower courts' rulings to withhold the information stand.