Court rules government can withhold intelligence records from UK parliamentary group under FOIA

A U.S. District Court in Washington, D.C., ruled earlier this week that a group consisting of more than 50 members of the United Kingdom’s Parliament is considered a foreign “government entity” and cannot obtain information from U.S. intelligence agencies under a provision in the federal Freedom of Information Act.

The court ruled that the All Party Parliamentary Group of Extraordinary Rendition (APPG), which is made up of members of the Parliament, is a “government entity” because it falls under the common, dictionary meaning of the word. Under the common meaning, “government” may refer to “the political organs of a country regardless of their function or level, and regardless of the subject matter they deal with.

The U.K.-based group sued a number of U.S. agencies for access to records involving their country's role in the U.S. “extraordinary rendition” program, which involves the extradition of accused terrorist to foreign countries allegedly for questioning.

FOIA states that “any person” may make a request from a federal agency. However, Congress amended FOIA in 2002 to state that the “intelligence community” agencies shall not make records available to non-domestic government entities or representatives of these entities. According to the court, “no court has yet had occasion to adjudicate the metes and bounds of FOIA's foreign government exception.”

APPG, along with Parliament and APPG member Andrew Tyrie and the group's attorney and U.S. citizen Joe Cyr, submitted FOIA requests in 2008 covering various topics including “extraordinary rendition, secret detention, coercive interrogation of suspected terrorists and the sources of information about alleged terrorist plots.” Most of the requests were denied, with many agencies — including the FBI, CIA, and the State Department — citing the exception in 5 U.S.C. § 552(a)(3)(E). APPG sued in 2009.

APPG argued that the meaning of the term “government” in the provision should be interpreted under English law. English law views the term “government” as solely referring to the executive branch. The court disagreed, stating that the provision was deliberately crafted “in broad strokes” by Congress.

“The court freely admits that the word ‘government’ may portend a more nuanced meaning within the milieu of the English system of governance,” the opinion read. “It would be decidedly peculiar to assume that Congress intended FOIA's terms to shift with the idiosyncratic governmental configurations of every sovereign state.”

Even if a narrower definition were accepted, the court found that APPG glossed over the role Parliament plays in UK government, as the executive branch is elected and may be dissolved by Parliament.

The court also rejected the plaintiffs' request that a distinction be made between requesters' “official” and “individual” capacity when making FOIA requests. The plaintiffs argued the provision should only apply if a request is made on behalf of a foreign government.

The U.S. government argued the proposed interpretation would allow, for example, former North Korean leader Kim Jong-Il (now deceased) to file FOIA requests as an “individual.” Though the court declined to go endorse the extreme case, as stated by the government, it agreed that by reading the law in this way would “swallow the rule.”

“If the court is to give any meaning to the foreign government entity exception, this provision cannot turn on such evanescent factors as the subjective intent of the individual who files the claim,” the opinion read. “To do so would essentially allow a system of voluntary compliance — which is to say, no compliance at all.”

In reference to Tyrie and Cyr, the court ruled both acted as representatives of a government entity — Tyrie as a member of APPG and Cyr as his lawyer. The court noted that APPG could have gotten around the problem by having Cyr submit FOIA requests as an individual and pass the information on to his clients, stating it was not up to the court to rewrite the law, but to uphold what Congress wrote.

“Here, Congress appears to have been motivated by a desire to reduce the administrative burdens shouldered by this country's intelligence agencies,” the opinion read. “Congress chose to exclude certain groups from filing FOIA requests, even if those groups can later receive the information disclosed by other individuals' FOIA requests.”

Calls made to APPG's attorney, and the U.S. Departments of Justice and Defense were not returned.

Related Reporters Committee resources:

· Federal Open Government Guide: Who may use FOIA?