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Media Alerts - All Party Parliamentary Group v. Department of Defense -- D.C. Circuit
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June 17, 2014
  All Party Parliamentary Group v. Department of Defense -- D.C. Circuit
Headline: D.C. Circuit determines that the term "representatives" of foreign government entities under FOIA's Foreign Government Entity Exception means "agents" of foreign governments.

Area of Law: Freedom of Information Act

Issue Presented: Whether a member of the British House of Commons, an informal British parliamentary caucus, and an American lawyer representing both are "representatives" of a foreign government entity within the meaning of the Freedom of Information Act's Foreign Government Entity Exception.

Brief Summary:
Appellants, a member of the British parliament, an informal parliamentary caucus, and the American lawyer representing both, filed Freedom of Information Act (FOIA) requests with various U.S. government agencies seeking information about the United Kingdom's alleged involvement in extraordinary rendition. Several agencies within the intelligence community declined to release relevant documents, invoking FOIA's Foreign Government Entity Exception, which prohibits intelligence agencies from releasing records to foreign government entities or their "representatives." According to the agencies, requesters, as a member of a foreign government, a "subdivision of a foreign government entity," and their legal representative, were "representatives" of the British government within the meaning of the act. The requesters sued to compel disclosure, arguing that only "agents" of foreign governments qualify as "representatives" under the exemption and that they were not agents of the British government because they lacked authority to file FOIA requests on their government's behalf. The United States District Court for the District of Columbia dismissed the complaint, reasoning that "the term 'representative' is not synonymous with 'agent' for the purposes of [FOIA]" and concluding that all three requesters were British government "representatives" within the meaning of the Act.

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded, adopting appellants' narrower interpretation of "representative" as "agent." The D.C. Circuit began by noting that a narrow definition would not expose government secrets to terrorists or otherwise compromise national security because of other FOIA exemptions preventing disclosure of classified records. The court found that defining "representative" as "agent" comported with both the traditional and common-sense understandings of the term and reasoned that Congress would have used an alternate word "had it wanted to avoid incorporating agency principles into the Foreign Government Entity Exception." Examining the structure and purpose of the exemption, the court concluded that the "representative" language was intended to prevent foreign governments from evading the exception by having their agents file a FOIA motion, not to create an independent class of disfavored FOIA requesters. Finally, the court rejected the agencies' argument that interpreting "representative" to mean "agent" would impose additional burdens on intelligence agencies by requiring a time-intensive inquiry into whether each individual FOIA requester qualifies as an agent of a foreign government entity. The court found this exercise no more burdensome than any other FOIA analysis. Because appellants lacked authority to file FOIA requests on behalf of the United Kingdom, they were not its agents and fell outside the FOIA exemption.

For the full opinion, please see http://www.cadc.uscourts.gov/i...e/13-5176-1497947.pdf.


Panel: Tatel, Griffith, and Pillard

Argument Date: May 7, 2014

Date of Issued Opinion: June 17, 2014

Docket Number: 13-5176

Decided: Reversed and remanded.

Author of Opinion: Tatel

Counsel: Dominic F. Perella, Audrey E. Moog, Jonathan L. Abram, and Mary H. Wimberly for appellants. Charles W. Scarborough, Stuart F. Delery, Ronald Machen, and Matthew Collette for appellees.

Case Alert Author: Albertine Guez

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/17/2014 03:24 PM     DC Circuit  

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