Request for Sex Abuse Victim’s Video Tests Law

DresslerFirst published by the New Haven Independent.

One of the men accusing prominent New Haven Rabbi Daniel Greer of sexually abusing him told his story in harrowing detail — on video. Should the public get to watch it?

And is watching the deposition video different from reading the text version?

Those questions came during a hearing before a federal judge Thursday in U.S. District Court in Hartford.

The hearing, raising fresh First and Fourth Amendment questions, was the latest twist in Rabbi Greer’s ongoing court battles over allegations that he sexually assaulted multiple students at the Yeshiva of New Haven on Elm Street more than a decade ago.

A jury last May ordered Rabbi Greer to pay $21 million in damages to a former student who described repeated sexual abuse after a civil trial in U.S. District Court in Hartford. A second Greer accuser, Avi Hack, was subpoenaed to testify in that case. He dodged the subpoena and didn’t show up in Hartford to testify. However, he agreed to give a deposition, and the deposition was videotaped. In it, he described years of alleged abuse at the hand of Greer, his family friend, teacher and principal, and eventually his boss.

Jurors watched the video in court during the trial. Yet only the written transcript was published in the court record.

Blogger Lawrence Dressler, outside U.S. District Court in Hartford.

Two weeks ago, a local blogger asked the court to turn over a copy of the full video, which he said he plans to publish online. In the process, he touched off a debate about what details from childhood sexual abuse cases should be made public and what’s better left private — and what form of court testimony should be released to the public.

On Thursday afternoon, back in U.S. District Court, four lawyers presented their interpretation of the thorny conflict between the press’s First Amendment right to access judicial proceedings and the victim’s Fourth Amendment right to privacy.

In his initial letter to Judge Michael Shea, the blogger, Lawrence Dressler, pushed for full transparency, citing the well-established precedent that whatever jurors see in an open courtroom should also be available after the trial ends.

Both the victim and Rabbi Greer protested that there is something fundamentally different about a video. Greer argued the release might be so devastating as to tip the jury in an upcoming criminal trial against him in state court. The victim said the violation of his privacy might be so invasive as to deter other accusers from coming forward.

After hearing the arguments, Judge Shea held off from issuing a ruling in order to give the parties one more chance to submit briefs. He also noted irony in this case.

If the victim had simply taken the witness stand, Shea pointed out, he could have given answers in a courtroom where all recording devices are banned. Jurors never would have seen a video, and journalists or bloggers would have little standing to ask for it.

But by skipping out, the victim, in effect, made the situation worse for himself, Shea explained, as the only version of his testimony is a digital copy that could be easily uploaded to YouTube, rather than a reporter’s write-up.

Hiding Out

In the 218-page transcript of his deposition, which the Independent published in April 2017, Aviad “Avi” Hack described an alleged 13-year sexual relationship with Greer that started when he was a student at the Yeshiva of New Haven, a Jewish day school Hack’s parents helped Greer found at the corner of Norton and Elm Streets.

(We published the deposition in the belief that it served the public interest in three ways: It added to the public’s understanding of the case with crucial corroborating facts by a second alleged victim. It offered specific descriptions of actions that help the public understand what allegedly occurred in a way that vague phrases like “alleged abuse” fail to do and in fact can excuse the crime or downplay the crime’s severity. And it exposed how psychological manipulation can more broadly aid adults in allegedly raping or otherwise abusing minors.)

In the deposition, Hack described sexual encounters from around 1991 until 2004, occurring in apartments owned by Greer’s not-for-profit groups, in the basement of his Orange Street law office, in Edgewood Park, and in hotels in Missouri and Massachusetts. Hack spoke of consenting to weekly trysts that he was able to “avoid” only on holy days, but he said he feared what would happen if he stopped.

“I had tremendous respect, reverence, awe, for Rabbi Greer. I felt that he was superlative in every way. He was confident, he was knowledgeable. He was a religious guidepost,” Hack testified under oath. He added that he didn’t want to “destroy what [his] father has been working on.”

Hack went on to become a rabbi and administrator at the yeshiva. Alongside the rabbi, he was initially named in the civil suit filed by another former student at the school, Eliyahu Mirlis, who accused Greer of repeatedly sexually abusing him for three years and the yeshiva of failing to stop the molestation. After Hack flipped sides and agreed to testify for Mirlis, backing up the claims, he was removed as a defendant.

But as the trial approached, Hack hid from a process server, who said that Hack’s “great lengths” to evade service were an anomaly in his three decades of handing out subpoenas. Hack once ran out of his classroom, down a hallway and through the back door of the school to avoid being served. Then he called in sick for two weeks straight, holing up at home.

Because Hack failed to appear, jurors could only watch the pre-trial recording of his deposition.

Dressler said he hoped to share that video on his site, because it contributed to such an important issue in the Jewish community, recalling recent sexual abuse scandals in the Catholic Church. “If the video was posted on the Internet, I think it would serve a public purpose. I know when I posted the transcript, people were calling me, mostly from New York, who wanted to talk about this case,” he said. “I think the public is served by seeing what actually goes on at a trial and the purpose of a courthouse.”

David Grudberg, Greer’s attorney, argued that Dressler’s motives weren’t so high-minded. “He has written, at length, about his desire to see Mr. Greer in jail,” he said. “If the videotape didn’t make a difference, he wouldn’t be here,” Grudberg went on. “He thinks it will further prejudice Daniel Greer.”

Judge Shea said that line of argument was irrelevant, because a person’s motivation for obtaining a record has no bearing on whether it’s public or not.

Echoes Of “Fat Tony”
Anthony “Fat Tony” Salerno leaves federal court in New York City in 1985.

According to Judge Shea, the circumstances most closely resembled the 1987 mob trial of Anthony “Fat Tony” Salerno, “the rough-talking, cigar-chomping boss of the Genovese crime family who rose from running numbers in East Harlem to rigging construction bids on Manhattan skyscrapers,” as The New York Times wrote in his obituary.

In the Salerno case, Roy L. Williams, the former president of the International Brotherhood of Teamsters, was too sick to appear in court. Instead, his testimony, videotaped in a prison hospital where he was locked up on unrelated charges, was played for jurors.

After the trial, CBS asked for a copy of the tape to broadcast on air. Williams objected that that would violate his privacy. A district court judge agreed with Williams, but a three-panel appellate court overturned her ruling.

In an opinion written by Ralph K. Winter, who’s still a senior judge on the Second Circuit, the judges cited their past willingness to release to the press videos that had been shown at trial. For instance, they’d let NBC get a copy of videos taken in the Abscam case, in which undercover FBI agents posed as shieks to solicit bribes from Congressmen.

As prior judges had argued, why could something seen by those at the trial be hidden from people who weren’t there?

“Once the evidence has become known to members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction,” a judge wrote in a 1980 ruling that Winter cited.

Hack’s case is slightly different, though, because of the comparatively stronger privacy interests that an innocent victim of sexual assault has to a sick man in prison, it was argued. He might be “an innocent bystander subject to public embarrassment solely because of the acts of others,” as Winter said could be an exception — unlike Williams, whose circumstances were “solely the result of his [own] criminal acts.”

Matthew Popilowski, Hack’s attorney, claimed that releasing the video would dissuade other victims from testifying about their childhood sexual abuse.

But Judge Shea didn’t seem to buy it. As he noted, Hack hadn’t made an issue of his privacy until the video had been requested. During the civil trial, he hadn’t asked for a pseudonym or requested that the video be sealed. With news reports already written, the judge seemed to suggest Hack had already given up much of his privacy.

“I understand, from a human standpoint, why your client didn’t want to come to court,” Shea said. “But this was entirely avoidant. Mr. Hack could have submitted to a video deposition in New Haven, accepted the subpoena to testify in court, and very likely, the video would never be released by me.”

Running into trouble persuading the judge, Popilowski tried to undercut the notion that federal courts are truly open to the general public, throwing the whole presumption of judicial access into question.

“It’s ironic that the courts talk about public access and releasing something played at trial, and yet we don’t have cameras in courtrooms,” he said. “We want the public to be able to get everything on file and yet we won’t show the proceedings on TV.”

“There’s a lot of policy problems in this country. I can only do so much. I can’t snap my fingers and order the case be filmed,” Shea replied, clearly annoyed. “You’re commentary is appreciated, but irrelevant.”

Seeing The Facial Strain

Aside from those privacy rights, much of the legal wrangling on Thursday came down to whether a fundamental difference exists between the video that the blogger wanted and the transcript that had already been released.

Dressler argued that there is little material difference between word and image. Greer’s and Hack’s lawyers, on the other hand, said the video, unlike the printed word, would do enormous damage to their clients.

On the video jurors watched at trial and then requested to review a second time during deliberations, they saw the clear strain in Hack’s face as he answered. Under interrogation by Greer’s attorneys, he held back anger at the repeated questioning about when exactly the abuse began.

That resentment does not emerge in the written transcript, where dashes represent interruptions; ellipses, hesitations; and exclamation points, outbursts of emotion.

Judge Winter, in his ruling in the 1987 mob case, had pointed out this difference in analyzing why CBS should get a copy of Williams’s testimony.

“Because the videotape may in fact be more accurate evidence than a transcript, moreover, its availability to the media may enhance the accurate reporting of trials,” he wrote. “Transcripts lack a tone of voice, frequently misreport words and often contain distorting ambiguities as to where sentences begin and end. Videotaped depositions thus convey the meaning of testimony more accurately and preserve demeanor evidence as well.”

Even if Judge Shea agrees with Winter, however, there’s still the issue of actually producing a copy of the video. The courts don’t keep a copy; instead, it’s with Antonio Ponvert, Mirlis’s lawyer. The attorney said it would cost roughly 12 hours of his assistant’s time to make a copy for Dressler.

“Can CBS pay for that?” Dressler jokingly asked the judge.

He said later he’d try to get a discount from Ponvert, but that he is willing to pay up for the video.

Judge Schools City On First Amendment

First published by the New Haven Independent.

Federal Judge Jeffrey A. Meyer, a former Quinnipiac and current visiting Yale law professor, turned his Church Street courtroom into a lecture hall when it appeared a New Haven government lawyer needed a refresher course on the First Amendment.

The judge delivered his lesson Friday in the middle of the first day of testimony in a civil suit about alleged police misconduct.

Just after lunch, Michael Wolak, the New Haven city lawyer defending the two cops on trial, asked to scrap the whole case and start again. He took issue with a story that the Independent had published about the case three hours earlier. The article included a generalized description of each juror, taken from Thursday’s selection process, and shared a key video, entered into evidence Friday morning.

Wolak is representing Detective Daniel Conklin, whom an Edgewood man is suing for alleged false arrest and malicious prosecution after a minor traffic infraction exploded into an arrest, in an incident that included the confiscation (and subsequent loss) of the cellphone the man was using to video-record the cop’s actions.

“An article appeared in the New Haven Independent today, which disclosed Exhibit One to the the public and also contained identifying information for the eight jurors that would have been privy only to counsel in this matter,” Wolak complained to Meyer in court.

“OK,” Meyer responded. Then, slipping into professorial mode, the judge deconstructed the attorney’s arguments with a point-by-point analysis, as he explained journalists’ presumptive right to watch and write about what happens in the nation’s courts, absent a qualifying reason.

“The author of the article … is very welcome [here], because the press has a right to access all courtroom proceedings and report on them,” explained Meyer, a former federal prosecutor-turned professor who was appointed to the bench in 2014. “I see no basis for the court to seal the proceedings unless there are compelling reasons to do that and unless they are narrowly tailored. That’s the First Amendment obligation that the court has.”

Settled Law

Those well-established rights were first laid out by the Supreme Court in a 1980 case. A murder in Virginia had been derailed by three mistrials, so the defense attorneys asked to shut the public out of the fourth attempt. Prosecutors didn’t object, so the judge went ahead with closure. Two reporters from Richmond newspapers sued.

In a plurality opinion representing a 7-1 vote, Chief Justice Warren E. Burger explained that America’s judiciary participated in a long tradition of open trials — for good reasons, like “the fostering of public confidence in the legal system, the accuracy of the fact-finding process, and the satisfaction of the community’s desire for justice,” as one commentary summarized it. Besides, Burger wrote, the right to attend a criminal trial was “implicit in the guarantees of the First Amendment.” As he read it, the whole point of free speech, press and assembly is protecting open discussion of public affairs, encompassing not only the right to vocalize one’s opinions but also to listen and receive information, including about the criminal justice system.

The Supreme Court affirmed that general principle of openness —  but not its exact reasoning — again in 1982, when justices overturned a Massachusetts law that categorically excluded journalists and members of the public from criminal cases involving sexual assault or minors. Justice William J. Brennan (who’d applied a separate means test in concurring with the Richmond decision) wrote that judges couldn’t restrict First Amendment rights without a compelling state reason, as the Massachusetts law did too broadly, ignoring times when a rape survivor might want publicity. Burger actually dissented, prioritizing the historical record of closing trials involving minor sex crime victims. But the chief justice was outnumbered, by a 6-2 majority.

“Repeal The 1st Amendment?”

With that precedent in mind, Meyer examined the city’s complaints in more detail, beginning with the video. Having been presented as a full exhibit that morning without objection from either lawyer, the footage was fair game for the media to share. “The press have a First Amendment right to access the courts’ files, and to publicize and put on the front page of the newspaper anything that is a public exhibit here,” Meyer said. “Rest assured, that is the law.”

Wolak conceded that point. “The bigger problem is identifying information [about the jurors], that one could determine who they are,” the senior assistant corporation counsel said. Wolak added that he believed the information “would have been privy only to counsel in this matter.”

Wolak later clarified to the Independent that he thought information had been obtained from sidebar, the privileged conference where the judge and counsel question individual jurors about sensitive topics. Did he think the Independent was snooping? “I don’t know who obtained [the juror information]; it doesn’t matter,” he said. “I can’t remember all 80 people.”

In court, the judge responded that the reporter “was here all day yesterday… and as far as I can tell, anything he reported about the eight jurors was from his vantage point in the courtroom while the jurors spoke,” Meyer stated. “The names are [legally] protected, but he has not published the names of those jurors. I believe he’s released the information on the basis of what was stated in the public record.”

Meyer was correct: All the information in the article came from statements made in open court.

Even without the names, the claim that the story identified jurors also sounded dubious, Meyer continued. Take the retired male from Clinton who drives limos part-time. “I’m not sure that tells me a lot about who that is,” the judge said. “Maybe the closest is the high-school secretary from Norwich. I don’t know how many high schools Norwich has. But if that’s based on statements that were made by jurors here in open court, to me, it’s [covered by the] First Amendment, and the First Amendment wins.”

Meyer also noted that he spoke with the Independent just that morning before jurors took their seats, reminding this reporter that he could type notes on a laptop but not record audio or video of any of the proceedings. And he reminded jurors, almost ad nauseam, that they cannot research or read any press accounts about the case, Meyer added.

“I’m not sure what else to tell you, except that this is how the First Amendment works,” he summed it up for Wolak.

Still, Wolak pressed on. “We would make a motion for a mistrial at this time,” he said, asking the trial be invalidated because of a procedural error. What were the grounds? “What I just stated,” Wolak answered.

“That is, could I repeal the First Amendment?” Meyer asked.

“I’m not asking to do that,” Wolak said.

“You’re asking to be a mistrial on the grounds that a journalist exercised his rights under the First Amendment. I think that’s a problem,” Meyer said. “I can understand if we had evidence that the jury had been exposed to this new article. It’s a different matter if you want me to do an inquiry into whether they’ve read any articles. In that case, it may be appropriate — if there’s any evidence of an exposure to media, and you do not have that.”

After that, Wolak withdrew his motion. In its place, he asked the judge just to ask if anyone had read any clippings during lunch and to warn them again about not reading up.

Meyer noted that he had just told the panel that message before lunch, but he agreed to ask, noting the importance that the only evidence in deciding the case be that presented at trial.

At that point, Christopher Neary, the deputy city corporation counsel who’d come over just to watch the mistrial motion, walked out. He declined to comment to the Independent, saying, “Please don’t harass me,” as he stepped into an elevator, going down.

Back in the box, the eight jurors shook their heads: No one had looked at any articles about the case.

One Tech Company Is Crowdsourcing America’s Largest Land-Use Map

In 2014, Twiana Odom and her daughter paid rent for a home on Detroit’s east side to a man with a forged deed. When yellow tax foreclosure notices started appearing in her mailbox, addressed to a different name than her landlord’s, Odom realized she’d been scammed. Unable to reach the real owner, Odom asked a nonprofit to bid on the house at a county auction. They pledged up to $3,000, but it wasn’t enough to beat a land speculator who paid $3,200. The new owner promptly served Odom with an eviction notice. When a TV news crew located her this spring, she was living in a van in a nearby empty lot. She said she still cuts the grass in front of her old home, which remains vacant.

The millions of foreclosures that characterized the post-2008 recession can seem like the result of bad luck or tragic circumstances. But a troupe of young mapmakers in Detroit is trying to analyze them as a matter of policy, which can be improved with better data. As a cartographic experiment, started as Motor City Mapping and now known as Loveland Technologies, amateur surveyors knocked on doors to gather info on Detroit homeowners, compared their observations with public records (like whether mail had been delivered in the last 90 days) and uploaded the findings online. The color-coded maps identify properties that are blighted, vacant or in tax arrears. By looking at the hard data, decision-makers could have spotted the damage an 18 percent interest rate on delinquent taxes was causing, or more precisely in Odom’s case, they might have questioned whether booting the family at Buckingham Avenue was worth the unpaid tax revenue.

Loveland Screenshot
From Loveland’s website, a satellite view of a neighborhood in Detroit. This aerial view allows users to identify properties that are blighted, vacant, or in arrears. / Loveland Technologies

“The underlying grid of land ownership and taxation was always designed to be public information. Somewhere along the line, we forgot about that,” says Jerry Paffendorf, the 34-year-old co-founder and CEO of Loveland. “Ownership of the country is the most fundamental way that cities operate or don’t operate. [Municipal bankruptcy] is very much because of a drop in property taxes, and our inadequate use of land is the main driver of why police and ambulances don’t show up and why schools close.”

Seeing how data shaped recent housing decisions in Detroit, Loveland Technologies has spent the last two years assembling parcel information for the rest of the country. Out of 3,200 counties, they’ve obtained data from more than 2,000 assessors, accounting for about 94 percent of the places where Americans live. From what Loveland’s 17-member team can tell, it’s the largest publicly available dataset on homeownership ever assembled, and it’s readily accessible to local governments, real estate developers, community land trusts, neighborhood associations, university researchers and concerned citizens, all on one free website. “Title companies and real estate companies that assemble something similar charge absolutely ungodly prices to access it: a quarter million just to look, and if you share anything you’re in big trouble,” says Paffendorf.

Loveland Technologies (its name comes from a dense tome on property law that Paffendorf inherited, inscribed to a lawyer named Susan Loveland) is very different from Zillow, the real estate site that lists real estate prices. Its data can guide taxation, zoning, historic preservation, transportation — anything tied to where people live. Researchers have asked the company to overlay the map with other measurements of poverty, education and health, but Paffendorf believes that there’s already a wealth of insights to be mined from property rolls’ minutiae. “We have a relentless focus on the parcel of property — even on being able to see it, to know what its legal boundaries are — because rights are tied to it,” he explains.

Beyond big-picture planning decisions, Paffendorf hopes the maps also inspire small instances of civic engagement, that users will build maps and share them on the site, creating a Wikipedia-style “virtuous loop.” He envisions urbanites looking up who owns vacant lots and setting up something cool in their place. As more people latch on to the site’s tools, you can expect brighter maps to emerge from American cities: less vacancy, fewer tax foreclosures and a land we can all love.

Donald Trump and the Return of Seditious Libel

Reposted from Richard Tofel, ProPublica

In 1733, New York printer John Peter Zenger began publishing the eighth newspaper in the American colonies, and the first willing to venture criticism of the government. The New-York Weekly Journal was the second paper in a city of 10,000 or so people, 1700 of them slaves.

As we are reminded in Richard Kluger’s comprehensive new book, “Indelible Ink,” the first full-length account of Zenger’s travails, by 1735, Zenger (and the likely editor of his paper, James Alexander) had so offended Britain’s royal governor of New York and New Jersey, William Cosby, that Cosby brought suit against Zenger for seditious libel — the crime of criticizing the government. Under the law then in effect in Britain and its colonies, truth was not a defense to this charge. The leading legal treatise of the day explained that “since the greater appearance there is of truth in any malicious invective, so much the more provoking it is.” And: “The malicious prosecution of even truth itself cannot… be suffered to interrupt the tranquility of a well-ordered society.” This was deemed especially the case with true attacks on those in power, as they would have “a direct tendency to breed in the people a dislike of their governors and incline them to faction and sedition.”

New Yorkers in 1735, though, weren’t buying it. While the jury in the Zenger trial was instructed that the truth of Zenger’s attacks on Cosby was no defense, Zenger’s lawyer argued that it should be, and asked the jury, if they found the stories true, to acquit the printer. This the jury did, striking a dramatic blow against the law of seditious libel, and launching a proud American tradition, ratified in 1791 in the First Amendment, and laid out over the centuries in a range of Supreme Court decisions.

For at least the last 30 years, since Chief Justice William Rehnquist acquiesced in the constitutionalization of the law of libel, which has safeguarded the American press for more than a half century, we appeared to have a consensus in this country around our modern system of protections for the value of a free and untrammeled press to the process of self-government.

Until now. This year, for the first time since at least Richard Nixon, the leader of one of our major political parties has pledged to limit press freedom by restricting criticism of his prospective rule.

But Nixon’s threats were private, revealed only by his own taping system, while Donald Trump’s are very public, loud and clear. And to be fair to Nixon, he never made good on his private threats, and in the one Supreme Court case he argued personally as a lawyer, he seemed to accept modern constitutional protections for libel.

In fact, Trump is more hostile to the legal and constitutional rights of the press than any major presidential candidate of the last two centuries. What he proposes is reminiscent of the Alien and Sedition Acts of 1798 championed (to his immortal disgrace) by President John Adams in the last serious attempt to relitigate at the federal level what had seemed resolved in the Zenger case. It is cold comfort — although it may be some warning to Republicans inclined to go along — that Adams was not only defeated for re-election after passage of those laws, but lost the White House to Thomas Jefferson and his close associates James Madison and James Monroe for a quarter of a century, while Adams’ Federalist Party never really recovered.

In case you think a comparison of Trump’s goals with Zenger’s opponents or the sponsors of the Alien and Sedition Acts is unfair, a quick review of the record may be in order.

Trump has said that most reporters are “absolute dishonest, absolute scum.” He’s said that “I think the media is among the most dishonest groups of people I’ve ever met. They’re terrible.”

In February he pledged that “one of the things I’m gonna do if I win, and I hope that I do, and we’re certainly leading, is I’m gonna open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re gonna open up those libel laws. So that when the New York Times writes a hit piece that is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money rather than have no chance of winning because they’re totally protected. You see, with me, they’re not protected, because I’m not like other people, but I’m not taking money, I’m not taking their money. We’re gonna open up those libel laws, folks, and we’re gonna have people sue you like you never got sued before.”

Nor is a threat by Trump to sue for libel an idle one. In 2006 he brought such a suit against a book that asserted he had wildly overstated his wealth. He lost the case on the merits as well as for failure to prove fault. But the Washington Post reported that “Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. ‘I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make [author Tim O’Brien’s] life miserable, which I’m happy about.'” Trump has also sued the Chicago Tribune and comedian Bill Maher, and threatened to sue the New York Times (more than once), ABC, the Daily Beast, Rolling Stone, the Huffington Post, reporter David Cay Johnston, TV host Lawrence O’Donnell and comedian Rosie O’Donnell

In the February rant, Trump also seemed to threaten to force Jeff Bezos to divest himself of the Washington Post, asserting that it had been purchased to obtain political influence, and declaring that such purchases should be forbidden.

Asked in June if his stance on the press would continue as president, he said, “Yeah, it is going to be like this… You think I’m gonna change? I’m not going to change.” He repeated his view that “I am going to continue to attack the press. I find the press to be extremely dishonest. I find the political press to be unbelievably dishonest.”

In August he tweeted that “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!”

Melania Trump’s libel lawyer (she is suing the Daily Mail in Maryland for a story on her modeling days) is even more specific, saying that New York Times Co. v. Sullivan, the 1964 Supreme Court decision that established modern press protections, should be overruled.

Anyone paying attention knows there is a great deal at stake in this election. Freedom of the press in this country may be among those stakes.

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Report: Federal Government Doesn’t Track the Cost of Losing FOIA Lawsuits

At least a dozen government agencies have no idea how much money they spend defending wrongful Freedom of Information Act decisions in court, a watchdog concluded.

The Government Accountability Office identified 112 FOIA lawsuits from 2009–2014 where a federal judge took requesters’ side. In more than half those cases, no one attempted to calculate the price of losing a court battle, according to the oversight report released Thursday.

Eleven of the 28 agencies GAO queried couldn’t enumerate a price tag for FOIA determinations that a judge overturned. Worse, the Justice Department, tasked with both overseeing FOIA compliance and defending the government in court, tracked even less of the money’s outflow. Attorneys totaled litigation costs for only eight of the 112 cases they argued and lost. In 11 other cases, the attorneys’ fees that Justice reported owing to plaintiffs differed from the amount agencies reported, the GAO audit found.

Why does this figure matter? It could put an exact price tag on government secrecy. If the feds simply released more records, costly litigation could be avoided, transparency advocates say. In other words, if we’re spending on FOIA, shouldn’t the dollars go to processing, rather than litigating bad cases?

How a FOIA request becomes a lawsuit. / Government Accountability Office
How a request becomes a lawsuit. / Government Accountability Office

When FOIA was signed by President Lyndon B. Johnson in 1966, it allowed any requester to sue (normally, within six years of a denial) to obtain “improperly withheld” records. After Watergate, Congress strengthened the law in 1974, entitling requesters to recoup attorneys’ fees if they prevailed substantially. Since 2006, the federal government has been sued for FOIA violations 3,350 times. Lawsuits have increased from midway through Bush’s second term to the latter end of Obama’s by 57 percent. Last year, close to nine FOIA lawsuits were filed every week.

Despite the increasing caseload, Justice Department attorneys don’t track their expenses for FOIA lawsuits. Neither of the United States Attorney’s Office’s two case management systems — LIONS and USA-5 — log hours spent on individual cases. Over in the Civil Division, lawyers can input time spent in CASES, a separate management system, but they are not required to do so. So when GAO asked, the Department could only tabulate the cost of eight cases: $97,000. No one knows how much the other 104 lawsuits sucked out of the Justice Department.

In response to the audit, Justice claimed this exact figure was too insignificant to merit measurement. The agency stressed that it already collects and proactively releases plenty of other stats on FOIA administration, including an annual listing of all litigation and the quarterly number of requests received, processed and backlogged by agency. In comparison, totaling the funds for this one subset of lawsuits might not be worth the Justice Department’s time, wrote Michael H. Allen, deputy assistant attorney general for policy, management and planning.

“The requests that GAO identified where the plaintiff substantially prevailed in litigation amounts to a fraction of a fraction of a percent of overall FOIA activity. This context should, of course, be part of any consideration when weighing the cost of additional reporting for this discrete data point,” Allen wrote in an August 8 response letter.

FOIA requesters, on the other hand, point to a different weighing game. Of the $144 million spent on FOIA lawsuits during this period, they want to know exactly how much went to unwinnable lawsuits in order to change FOIA’s financial calculus. If FOIA officers see they are bleeding money in court, they reason, the losses could deter future withholding. An administrator with a slim budget could save money, sunshine activists say, by simply releasing records up front, rather than after protracted legal fights.

At least, that’s the theory. Until there’s a full accounting, Justice’s choice to defend an agency determination won’t be based on the finances.

The Freedom of Information Act Survives 50 Years

On July 4, 1966, at his estate 60 miles east of Austin, Lyndon B. Johnson savored his Independence Day holiday by helicoptering around his sprawling Hill Country ranch; lunching with a federal judge, the president of Neiman Marcus, and two lawyers; boating around a Colorado River reservoir named in his honor; and placing two late-night calls to Defense Secretary Robert McNamara.

But the most historically significant event that holiday didn’t merit a mention in the president’s daily diary. Sometime that summer day in the Texas heat, Johnson reluctantly appended his signature to what he called “the f—ing thing”: S.1160, a bill for which Rep. John E. Moss, a fellow Democrat from Sacramento, Calif., had agitated for a decade. No ceremony accompanied the signing. The New York Times, the next morning, ran its coverage of the new law on page 25.

Signed that day, the Freedom of Information Act, a landmark bill which opened up executive branch records to public inspection, nearly didn’t pass. Johnson, known for his controlling personality, had privately regarded the act with suspicion. To make his hesitations known, Johnson instantly undercut the law with a signing statement — the first in a long tradition of presidents undermining FOIA, a legacy that continues through the Obama administration today, who recently tried to beat back minor fixes to FOIA’s inadequacies.

A Backbencher’s Crusade

In April 1965, 15 months prior to the signing, LBJ had dispatched the House Democratic leadership to kill the proposed FOIA legislation before it could get out of subcommittee. LBJ saw in it a conspiracy to take down his administration with scandals. According to his press secretary Bill Moyers, LBJ “hated the very idea of open government, hated the thought of journalists rummaging in government closets, hated them challenging the official view of reality.”

Rep. Moss, on the other hand, had fought government secrecy for years, first during the Eisenhower administration, when he tried to figure out why 3,000 federal employees, likely pinkos, had been purged. After 11 more years of pointing out “silly secrecy,” like the government’s refusal to say how much peanut butter American soldiers ate, Moss had come to believe “the unfortunate fact [is] that governmental secrecy tends to grow as government itself grows.” Eventually, Moss’s tenacity, the touchstone book “The People’s Right to Know” (1953) by Harold Cross, testimony from prominent newspapermen, plus the full-throated arguments of a second-term Illinois Republican, Rep. Donald Rumsfeld, solidified a strong vote in the House.

In 1958, Rep. John E. Moss (D-Calif.) displays the secrecy stamps that appear on classified government documents. / Library of Congress
In 1958, Rep. John E. Moss (D-Calif.) displays the secrecy stamps that appear on classified government documents. / Library of Congress

After the vote, the FOIA languished on Johnson’s desk for 10 days. One more, and it could have been pocket-vetoed while Congress was adjourned for the summer. LBJ, however, surprised even his closest advisers by signing it, without ceremony, in July 1966. White House staffers quickly drew up a press release that enumerated the bill’s limitations — military secrets, whistleblower complaints, personnel files, an agency’s internal communication and, lastly, the President’s own files were off-limits — while also extolling the public’s right to know. Johnson found the statement too praiseworthy, and he personally limited its scope. The draft of his statement had said that the mistakes of public officials should “always [be] subjected to the scrutiny and judgment of the people.” Johnson cut the line. In its place, he added that the “desire of … private citizens” should not determine what records are made public or kept private.

From that date on, the right to know about our government’s doings has been under near-constant attack, besieged in federal courtrooms, bureaucratic offices and Congressional backrooms. Secrecy, after all, had long its advantages, which public officials weren’t eager to relinquish.

The New FOIA

Fifty years later, public information is still cloaked by black-out redactions and years-long delays. (The oldest pending FOIA request, at the National Archives and Records Administration, dates back to August 1993.) To be fair, the government is digging itself out of a 103,000-case backlog at the same time it’s receiving a record numbers of inquiries: 713,168 requests last fiscal year. But Rep. Simon Chaffetz, a Utah Republican who chairs the powerful House Oversight and Government Reform committee, says that’s no excuse. “The power of FOIA as a research and transparency tool is fading,” committee staff concluded in a damning report earlier this year. “Members of the media described their complete abandonment of the FOIA request as a tool because delays and redactions made the request process wholly useless for reporting to the public.”

To confront the challenges, on June 30, shortly before Barack Obama celebrated his last Fourth of July in office (with a Janelle Monáe and Kendrick Lamar concert in the White House’s East Room), the president signed an update to the FOIA. (Besting Johnson, but not by much, Obama spoke about the bill for 107 seconds before he inked his signature.) The FOIA Improvement Act of 2015, a rare piece of bipartisan legislation sponsored by Sen. John Cornyn, a Texas Republican, was an attempt to fix half-century-old inadequacies and won support from dozens of oversight groups, including the American Civil Liberties Union, the Society of Professional Journalists, and the Sunlight Foundation.

The law’s most important change added explicit direction about the law’s purpose: FOIA officers and judges should presume documents can be released unless they can point to an explicit legal prohibition or a chance of causing harm. Ideally, the statutory exemptions should now work as they were originally intended: not as catch-alls onto which denials can be hung, but as guides to balancing individuals’ privacy, the country’s national security and government efficiency with accountability to its citizens.

The change settles an unresolved question that, in recent years, has swayed with each new presidential administration. In October 2001, a month after 9/11, George W. Bush’s attorney general, John Ashcroft, vowed to defend every FOIA denial in court unless a denial was clearly illegal. (Aschroft was rebutting a 1993 directive from Bill Clinton’s appointee, Janet Reno, demanding discretionary materials be released.) Permanently overturning Ashcroft’s guidance, the new law locks into statute a proclamation that Obama issued on his first full day in office. “To usher in a new era of open Government,” the president wrote in January 2009, FOIA ”should be administered with a clear presumption: In the face of doubt, openness prevails.” That means, as then-Attorney General Eric Holder reiterated in March 2009, that the Department of Justice would not defend discretionary withholdings in court. Amidst the flip-flops, Congress’s clarification of FOIA’s purpose should prove valuable if the next presidents wishes to limit transparency. And given the choice between Donald Trump, who forcefully removes journalists from campaign events as payback for negative articles, and Hillary Clinton, who hasn’t held a single press conference this year, probably due to questions about her private email server, that could come in handy in five months.

But cynics will tell you the presumption of openness won’t do much; indeed, Holder’s memo has been in effect for seven years. But only one in five processed FOIA requests were granted in full last year; 498 FOIA lawsuits — a record high — were filed during the same period. (DOJ’s Office of Public Affairs did not immediately respond to questions about when government lawyers had last refused to defend a discretionary FOIA denial.)

To be sure, for a few select media companies with resources to litigate, the newly codified presumption may tip the scales in their favor. But for the general public, there’s little recourse if an administrative appeal of a denial spits back another rejection. (Pro se plaintiffs, who represent themselves in court, can’t recover expenses if they win a FOIA lawsuit.)

Which leads to the new bill’s second big change: the Office of Government Information Services (OGIS), an eight-member team, can now mediate a FOIA dispute between an agency and a requester at any time, will check in on agency compliance and present recommended improvements directly to Congress. The ombudsman, however, lacks enforcement power: OGIS can only foster a sense of cooperation, not demand it.

Other adjustments include sunsetting Exemption 5’s protection of deliberative materials 25 years after a records was created, waiving fees any time an agency misses its deadlines, forcing agencies to proactively post documents online if they’ve been requested three or more times, and tasking the Office of Management and Budget with building a one-stop online request portal that covers all 100 agencies.

Another Attempt to Kill Reform

But what about the backlogs, those denials? The modest improvements passed this year were all previously blocked in 2014. In the waning days of that Congressional session, then-speaker John Boehner held a bill at his desk — identical the one introduced this year — running out the clock despite virtually unanimous support in both chambers.

Who was behind the last-minute impediments? Like in Moss’s day, when the Department of Justice reasoned that FOIA was “unconstitutional,” the agency once again tried to stymie reforms. (Paradoxically, DOJ is tasked with ensuring agencies adhere to the law.) “The [Obama] Administration strongly opposes passage of H.R. 1211” — the House version of the FOIA Improvement Act, S.2520 — the Justice Department privately advised lawmakers in 2013, according to documents the Freedom of the Press Foundation obtained through a FOIA lawsuit. “The Administration believes that the changes proposed in H.R. 1211 are not necessary and, in many respects, will undermine the successes achieved to date by diverting scarce processing resources.”

What was Obama’s team opposed to? For one, they didn’t want to see Holder’s presumption of openness become law. Asking agencies to withhold only documents that “would cause foreseeable harm,” the Justice Department argued behind the scenes, would set up a standard that “effectively amends each and every one of the existing exemptions in a manner that is fatally vague and subjective,” begging for lawsuits and undermining the exemptions’ original purpose. “Removing agency discretion … would create massive uncertainty and would chill intra-governmental communication,” the talking points continued, making it sound as if Holder’s directive hadn’t had much staying power. Even a tweak in the language, to broaden agencies’ discretion, would be insufficient; the presumption should be excised in its entirety, they said.

“If this memo reflects thinking of the White House, than I have to question their commitment to transparency,” Anne Weismann, The Campaign for Accountability’s executive director, told Vice News. “The breadth of their objections and lack of evidence to back up their claims and their absolute opposition to codifying Obama’s memo expose the lie that is the administration’s policy: If the president and this administration believes in their stated FOIA policy they should be supporting an effort to codify it.”

The Justice Department also attacked an expanded role for OGIS, saying added prominence for the ombudsman could “needlessly detract from DOJ’s authority to guide the Executive Branch with regard to FOIA.” Essentially, OGIS would be stepping on the department’s toes. Most worrisome to DOJ would be the direct line OGIS would gain to Congress to issue recommendations. Previously, the Department of Justice had the chance to review — and likely, influence — these suggestions before they were sent to legislators. Preferring OGIS not interfere in its administration, the Justice Department asked that bill’s multiple references to the ombudsman be removed, because they “would unduly burden agencies, create inefficiencies, [and] conflict with the neutrality of a mediator,” they wrote.

Given the scathing opposition the bill faced from the “most transparent administration in history,” its small victories need to be celebrated. Dating back to Johnson, reforming FOIA has always been an grueling undertaking. It took the Watergate scandal to initially add judicial review to FOIA denials (and override Gerald Ford’s veto) in 1974, the revolution of the World Wide Web to make records available electronically in 1996 and recognize online journalists as news media in 2007, and finally, the law’s semicentennial this year for Obama to affirm FOIA’s original intent. Here at On the Records, we’ll keep advocating for true fixes to FOIA — even if it takes another anniversary to get them.