Andrew G. Celli
Debra L. Greenberger
Access to records that are public under the Freedom of Information Act is a crucial component in investigative reporting. But obstructionist tactics by the government and burdensome bureaucracy can derail efforts by reporters to get important stories out.
That's where a firm with litigation expertise before federal judges in New York, the world's media capital, comes in handy. Emery Celli attorneys are bringing The Intercept's FOIA battles before judges with the double mission of getting the government records to reporters when they need it, while sensitizing the courts as much as possible on why timely access to information is crucial to the common good.
So far, the firm has filed three suits on behalf of the media outlet. One seeks to compel the National Institutes of Health to release information about an apparent conflict of interest involving an American doctor who is part of the World Health Organization's investigation into what caused the coronavirus pandemic.
Another suit seeks the release of information relating to force-feeding procedures on a detainee at a border immigration facility by U.S. Immigration and Customs Enforcement officers. A third one seeks information that the U.S. Department of State has refused to give up about a citizen journalism group covering abuses during the Syrian civil war.
Facing uncooperative agencies and red tape, The Intercept is relying on the courts to access the records, and putting the job in the hands of Emery Celli attorneys.
"We're hoping to teach by litigation that there are costs and embarrassment that come along with having to defend these cases," Celli said.
Celli and another partner at the firm, Debra L. Greenberger, talked to Law360 Pulse about their joint project with The Intercept.
This interview has been edited for length and clarity.
How did this project with The Intercept come to be?
Celli: Our firm has an interesting profile in the sense that we work at the intersection of civil rights and civil liberties on the one hand, and commercial litigation on the other hand. This is a case where these issues intersect.
We have a business client, The Intercept, that we have represented for a number of years and that as part of its business is in need of access to the courts — which is, of course, a right guaranteed by the Constitution.
They came to us and said, "Look, we've got reporters, journalists, editors, working on stories all over the world. Often, they are seeking documents through the Freedom of Information Act. Rather than doing that in a scattershot way, we'd like to put all that into one firm and do a series of litigations where we're building on the knowledge of the law, we are being persuasive to the courts, and we're getting the information, most importantly, on a timely basis, as quickly as we can, using the leverage of litigation against the federal government."
So, it's kind of the marriage of business and rights, you might say, where this whole idea emerged from.
Why are these suits important?
Greenberger: There's the question of making broader change. But there's also the question of providing specific information that's helpful to the public in each of these cases. The Intercept is seeking these documents, because it's information the public deserves to know and wants to know, about COVID-19, about how we treat immigration detainees, about the Syrian civil war.
In each of these cases, the hope is that there's broader change and that the agencies start being more responsive. But there's also the specific result in the cases, which is we get to know information that we want to know.
Let's look at the big picture. How does this way of operating — engaging with government agencies through the courts — ultimately help the public?
Celli: Debbie and I and our firm have spent our careers trying to bring about institutional change one case at a time. It's a big uphill battle. Even to get one agency to recognize that they're going to be responsible in court probably is going to take multiple litigations. There aren't a lot of other ways to do it.
There's nothing like an Article III federal judge with life tenure, looking down from the bench at lawyers and saying "you have to do this" to make things happen.
Is it going to happen in one case? I don't think so. In five cases? Probably not. But over time — and there will no doubt be some copycat projects at other locations and other outlets — I think it can bring change. That's the only way that we can get the government to open up. Asking politely doesn't work.
Do you envision continuing this project into the future?
Greenberger: Yeah, absolutely. We filed three cases. The Intercept has many other outstanding Freedom of Information Act requests that are outstanding, or on an administrative appeal. We're continuing to evaluate with them which are the ones that are going to proceed to litigation. I have every expectation that there will be other cases.
You said the system for public records requests is "fundamentally broken." What do you mean by that?
Greenberger: We have a federal statute where Congress says access to public records is of the highest public import, that agencies have to respond very quickly. Even if agencies are overwhelmed, they only get another very short timeframe to respond. So, we have a congressional pronouncement, on one hand, that's very much in favor of public access. And then we have the facts on the ground, which are very much against public access.
Without litigation, the agencies have asked requesters like The Intercept to just sit there and wait. I can give you examples from the three cases we've filed about what the process looks like. It's broken: you make a request, they do nothing. You bug them, they do nothing. You appeal, they come up with a frivolous basis for denying it. It's only when you go to court that suddenly you get documents.
Celli: The U.S. attorney's office here plays an extremely important role, a salutary role in this process, because they are kind of outside counsel to these agencies. They have to respond to the judges in the district where they live and work every day. And they're the opposite of remote. They are local, they are people who are part of the community of lawyers and judges in New York City, who practice at this level.
And I think, you know, of course, they are adversaries, they represent their clients vigorously. But in both the Southern and Eastern districts, they behave honorably. They follow the law.
I don't often say nice things about my adversaries. But you know, these guys are good.
I think it's really important to give them credit for representing their clients appropriately, but also moving things. And that's really what our job is as the lawyers for The Intercept: to get stuff moving.
Can you break down the Freedom of Information Act process?
Greenberger: A requester, which can be any member of the public, can ask for any document. And they don't have to provide a reason for it. They don't have to explain why they want to know it. If it's a public document, they're entitled to it.
There are various exemptions under the law for documents that the government creates that the public's not entitled to. If a document is created — an email, a Word document, a PDF, any document — the public is entitled to [it], unless it falls within one of [the] exemptions.
The agency is then required to do a search for those documents, and they're supposed to respond within 20 days, or 30 days if they need extra time.
If the amount of time passes with no response, which is what usually happens, the requester can do an internal agency appeal. So, there's an administrative appeal within the agency, and the agency has a certain amount of time to respond.
If they don't produce the documents, either because they don't respond on time, or because they say that there's an exemption that applies, then you have a right to go to federal court and ask an Article III judge to resolve it.
Celli: The documents that are presumptively available for public disclosure are any documents in the possession of the government. Most of the time, those documents are created by the government.
But a lot of times, they are documents created by private parties or institutions who then submit them to the government for various purposes. It can be private information, if it's in the possession of the government, and there are rules about how you treat that.
How does precedent matter in the context of FOIA litigation?
Greenberger: There are usually two big things in dispute. One is the documents you're entitled to, whether you are going to get them. That's something you should have gotten at the agency level, you never should have had to litigate.
But now that you're in court, how long is it going to take them to search their files and give you a real response? The bigger question that's really about precedent is there are these exemptions — the law enforcement exemption, for example, or trade secret exemption — and what the borders of those exemptions are. The government is trying to push the borders, and the requesters are trying to narrow them. So, the courts are deciding "this type of document you're entitled to get, or you're not entitled to get under this exemption."
So, is it fair to say that the biggest chunk of FOIA litigation is about the exemptions rather than response time?
Celli: Absolutely. The rule that Congress passed is that every document in the government's possession is presumptively public and should be disclosed. That sounds great. But exceptions can swallow the rule.
The government might exempt things by document, or it may go through a document and redact pieces of it. So you end up getting pieces of paper that are blacked out, or half of this or a third of that. So, yeah, the fights are always about the exemptions.
What happens if an agency destroys records? What would you do then?
Greenberger: The public records law is about records that are in the agency's possession. It doesn't speak to what happens if the agency has destroyed the records. That said, I think that's a matter of extreme public interest and extreme public import, if the agency has destroyed records. At a minimum, that is something very important to report.
Celli: There are various federal statutes that protect records from destruction, or at least govern how they are destroyed, over what period of time they must be maintained or destroyed.
But one of the great things about a Freedom of Information Act request framed properly is that the journalists can get not just the substantive documents that they're looking for, but [also] information about the process of how the documents were treated, how they were gathered, who had access to them. All that stuff is gettable because those are also documents.
Can you share any advice on how to file an effective record request?
Celli: you have to know what you're looking for with some specificity. The way to get hung up is to ask something that's so broad, that they can say "it's going to take us years" to get.
You also have to know where to ask: the agency that has the documents or materials is the one you want to talk to. If you ask the wrong place, they won't go looking for it at some other agency.
All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.
Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.
--Editing by Katherine Rautenberg.