Open Government Advocacy Strategies Meredith Fuchs General Counsel National Security Archive Washington DC USA

Identifying Cases Worth Litigating  Examine Possible Goals:  Reveal important documents.  Change agency practice or policy that affects all FOIA requesters.  Educate the public.  Attack specific secrecy practices.  Resolve conflicts in the law/move the law.  Prove you are willing to litigate/establish bonafides with the agency.

Evaluating cases for litigation  Is there a lawyer available to litigate it?  What is the likelihood of success?  What is the worst possible impact of failure? What do you do with bad law?  Can you get news media attention?  Can you get amicus curiae support?  In what forum/jurisdiction can it be pursued?  When should it be filed?

Challenges in Strategic Litigation  Conflicts between opportunities in the individual case and long term goals.  Turf battles between non-governmental organizations. Coordination in multi-party cases.  Seeking advice about pursuit of a case from the right people.  Being aware of important cases brought by others.  Using precedents from other jurisdictions (other countries, regional tribunals, etc.).

Specific Challenges in National Security Cases  Are there creative ways to increase judicial scrutiny?  Vaughn Index – detailed list of records and reasons for non-disclosure.  In Camera Review.  Special Masters.  Declarations from former officials.  Exposing over-classification (e.g., silly secrets, reclassification of open records).  Exposure of scandals hidden by classification (e.g. Abu Ghraib).

Litigation cooperation and information sharing  E.g. Freedom of Information Litigators Group (FOIL)  Meetings of non governmental organizations with diverse substantive missions to:  generate ideas about possible/important issues to litigate,  discuss case strategy,  learn lessons,  evaluate impact of legislative or regulatory changes on litigation,  discuss which cases should be pursued at the appellate level, and  provide amicus curiae support.

Anti-Secrecy Coalition With Rapid Reaction Capability  E.g., openthegovernment.org  Wide range of organizations including those that do not litigate.  Broad political spectrum.  Representing national state and local interests.  Coordinator with the ability to communicate issues to the coalition, organize strategy sessions, and manage group sign on letters on secrecy issues.  Recent activities – Opposition to records policies concerning Guantanamo case files, support for FOIA reform legislation. “Outing” secrecy senator.

News Media Contacts  Reporters with the secrecy “beat.”  Editorials on secrecy issues.  Coordination with news media coalitions who are willing to advocate for open government.  Sunshine Week.

Open Government Audits  Exposing real facts about FOIA policy and administration:  Ten Oldest FOIAs  Electronic FOIA Compliance/Agency Web sites  Sensitive But Unclassified information policies  Department of Justice FOIA litigation policy  Helps identify structural or broad issues worth litigating. Also sometimes moves policy.  Pattern and Practice cases  E-FOIA cases possible  FOIA reform legislation

Training Agency FOIA Personnel  American Society of Access Professionals (ASAP).  Identify who is responsible for training, attend meetings.  Present FOIA requester perspective.

Other Important Contacts  Identify academics who can study and publish articles about FOIA policy, legal and statistical issues.  Educate private lawyers, provide training, ask for pro bono legal assistance, put on programs to attract their attention.  Get business interests to support transparency and efficiency in government.

Contact me at any time: Meredith Fuchs, General Counsel National Security Archive George Washington University Gelman Library Suite H street, NW Washington DC