 I think we'll get started. This has been such a wonderful day, and I'm really excited to be a part of this as well. My name is Andy Sellers. Up until about six months ago, I worked here. I was the Coorded Dunham First Amendment Fellow here at Harvard. I'm now at BU Law, where I run their technology and cyber life clinic, where we do a lot of FOIA-related work for students that are interested in using FOIA as part of their research. It's been a very interesting time to do a lot of this stuff. I have a truly all-star panel here today to talk about the outside perspective. And so I don't want to waste any more time and just have everyone quickly introduce themselves and their slice of what outside means, where they come from. And then we're just going to dive right into a discussion. I feel like the past couple of panels and presentations has given us more than enough to talk about. We'll talk for a little while, and then we'll open it up to questions as well. So maybe I'll start with you, Nani, if you want to introduce yourself. Thank you. Nani Ansarev and Lowe. I'm currently a Fellow at the Bergman Klein Center and an advisor at the CyberLow Clinic. Until this summer, I was legal director at the Media Legal Defense Initiative, an organization that helps journalists and bloggers defend themselves worldwide. So I guess I'm the person representing the world outside of the US. I'll try. Jameel Jaffer. I'm Canadian, so I'm also representing the world outside the US. But I run something called the Night First Amendment Institute at Columbia, which is a new institute that will focus on First Amendment issues in the digital age. And I was until recently a lawyer at the ACLU. David McCraw. I'm from Illinois, I guess, that now almost counts as a foreign country. And I am the assistant general counsel at the New York Times Company. I head up our FOIA litigation efforts. I'm David Sobel. I live and work in DC, so I'm not sure where that puts me these days in terms of inside or outside. I don't know what that means anymore. But I have been doing FOIA litigation since the early days of the Reagan administration. So I like to think I have a somewhat broad perspective on trends. For the last 10 years, I have been senior counsel with the Electronic Frontier Foundation, where I do FOIA litigation. And I also have other clients, other public interest groups have done cases for the ACLU, the Brennan Center for Justice, some news media organization. So I get to see a fairly broad class of cases. And I like to think that also adds to the perspective I have. Great. And so there's been a lot of different things that I feel like we can talk about. But I wonder if maybe we can start with what we just ended the last panel with. I felt like I saw hands from almost all four of you wanting to ask questions of Professor Sunstein. So there's been a lot of talk today about deliberation and protection of deliberation and the fear that government transparency can chill or distort or limit deliberation. And now Professor Sunstein's rather provocative suggestion that inputs do not inherently have the same value for transparency as the outputs do. I wonder if anyone has a reaction to that. Do you think this is all, I think, the word that he uses, the palace intrigue? Or do you think there's actually a way that this actually helps people and saves lives to know who is in the room and who gets to be at the table? One observation I would have about Professor Sunstein's approach is it reflects sort of this insider view that government agencies are in a position to decide what the public needs to know or wants to know. And what I think is great about FOIA is it sort of gives citizens the right to ask what they want so you don't have to have any supposition about what the public wants to know or needs to know. So if you look at that as inputs versus outputs, I don't tend to look at it that way. I mean, that's sort of what I hear that sort of on the one hand, agencies deciding what should go out the door, and on the other hand, citizens demanding what they want. Yeah. I mean, it seems to me that you could make the same analysis about the First Amendment that covering the political campaign is really important and perhaps covering the opening of a new Broadway show isn't. But I don't know why we should be making that decision in terms of as a society. Why isn't it that, and it's fine of David's point, that's something for the public. So I think they both should be available and citizens to make up their mind. I just have been litigating a case over Cabinet Secretary's calendar. And what we have been looking at is the meetings with the industry. It may be entirely correct that the industry is being warned and they're about to get hammered, even though that particular secretary now works in the industry. Or it may be influenced. It's not hammered too hard at this point. It may be influenced. But it begins by having that information and then finding out what happened. So a few quick things about Professor Sunstein's talk. So one is, I think there was a underlying assumption about the benevolence of the people in charge. And I don't share that assumption. And I wonder how many others do at this particular moment in time. I was going to ask him about, he's not still here, right? I was going to ask about how you distinguish an input from an output. Why is an OLC memo an input rather than an output? If it sets the law, if it establishes the law, presumably the US code is an output, not an input. Why is an OLC memo different? And then the other thought I had was just about criminal trial. So if you imagine a trial in which everything was closed to the public, but at the end of the trial, the judge came out and said, I've considered all the evidence and I have concluded after careful consideration that the person is, in fact, guilty. And that was the end of it. We would all demand, I think, input transparency. So why do we demand it in that context? Why is it important there? I think even Professor Sunstein would agree that it's important there. So why is it important there but not in these other contexts we were talking about earlier? Maybe there's a good answer to that, but it wasn't obvious to me. I can only echo the sentiments that were just said here. I think particularly the one about questioning the benevolence of those who have the information to share. Even when there is a legal obligation to share certain information from the practice that I've seen elsewhere in the world, there just seems to be an enormous reluctance, even when requested, to provide information that should be out there to actually provide this. You know that example that Professor Sunstein gave about the New York Times reporter, whose name I've already forgotten? I haven't. That was in the interest of transparency, that was John Boyder. All right, John Boyder. I have a long memory and I have keeping a list. You know, maybe Professor Sunstein is right, that the story was unfair and got it entirely wrong, but it's also conceivable that the people in the room didn't realize that they were caving and an external observer sees those facts differently. So I guess I didn't take away from that example what Professor Sunstein wanted me to take away. Okay, let's talk about, you know, I think that there's a lot of attention being devoted right now to the incoming presidency. I think it's worth taking a second and saying, we're closing eight years of the Obama presidency and I think this is a good moment for us to take a step back and reflect on that. We've already heard the famous line earlier today. Quentin Palfrey brought it up. When Obama took office and when he was campaigning for office, he made the statement that his administration would be the most transparent in history. Quentin Palfrey noted earlier that they had a hard time realizing that vision, partly because not everyone was a political appointee, some were institutional appointees and sort of steering the ship towards transparency involved sort of changing a lot of the culture there, but I'm curious to hear from the outside. Was this the most transparent administration in history? David Sobel is already shaking his head so much. Right, well, so I intentionally eluded, started by eluding to, you know, having done this since the Reagan administration, so I do have that perspective and I don't think any administration is transparent. I mean, I think the similarities are much more obvious amongst administrations than differences. I mean, I think, you know, there's a bureaucratic resistance to disclosure and, you know, they sort of say things, you know, maybe in a more favorable light, as I would say has been true of Obama, but in terms of results, I don't think it's been seen over the course of the eight years. Now, the kinds of things that Professor Sunstein pointed to, sort of the proactive disclosures of, you know, this big data sets, for instance, was something that they made a big point of in the Obama administration. Disclosure of the torture memos, you know, was easy to sort of throw the Bush administration under the bus on that. That was the other big disclosure that they point to. But sort of on a day-to-day basis and in terms of litigation of particular cases, there's been no change in policy. You know, one of the directives that came out of the President's day one memo was that the Attorney General was going to promulgate a memo that was going to facilitate this new emphasis on transparency. So what Eric Holder directed within the Justice Department was that the Justice Department would no longer reflexively defend all agency withholding decisions. After eight years of litigating cases and talking to other litigators who have also filed cases over the past eight years, none of us have ever had a situation where we file a complaint against an agency and then got a call from a DOJ attorney who said, you know, we've looked at this and we've instructed the agency that we're not gonna defend this and the information is gonna be released. There has been absolutely no change on a day-to-day basis in terms of actual litigation. So those would be the things that I would point to in my own experience of indicating that there hasn't been the change that was promised. Unless the President was prophesizing the rise of Edward Snowden. Because in some ways there was a great deal of transparency but that's not what he had in mind. I have an article coming out which deals with an article that Ralph Nader wrote in 1969 called the Freedom From Information Act. And it's an incredible article that was published in the Harvard Civil Rights Civil Liberties Journal in 1969. What's interesting about it is it was written about FOIA before there were any court decisions. There'd only been 40 cases brought, there wasn't any real precedent. And Nader criticizes the conduct of the FOIA officers and how they interpreted FOIA and how slow they were and how cramped their reading of things and all of that. And what I found was that all of that behavior has continued 50 years later but more than that it has been validated by the courts. That the very things that Nader attributed to essentially administrative sloth, administrative reluctance, administrative resistance. Now the courts have said that's exactly how FOIA should be interpreted. And I think that, I bring that up in terms of the response to the question because I do think that whatever the intentions of the president were, and I will give him credit, I think they were good intentions, that the fact is that it was, the steps that would have been needed to actually move the bureaucracy were never taken. The kind of things that free FOIA officers to make decisions, to say yes, which is always a risk as opposed to say no, which is always a safe alternative. And also just to have the funding to do what was necessary. I don't think those kind of steps were taken after the good intentions of the first year. We don't have anyone from the administration on this panel, I guess, maybe by design, but I've talked to a couple of administration lawyers recently, and Charlie Savage has this in his book too. Some people in the Obama administration have said, you know, the reason why we didn't release more was that you guys filed these FOIA cases. And had you not asked for this information? Sorry, I tried to say that with a straight face. Had you not asked for this information? You know, we wouldn't have felt obliged to sort of dig our heels in and draw these legal lines and we wouldn't have had to worry about, you know, the future, you know, the next case. And it could have been a discretionary release. And, you know, I had a kind of vested interest in the answer to that question, like whether that's a real phenomenon or not. But I guess I'm curious to know what others on the panel think about that argument. My parents took the same approach to Christmas if I ask, I didn't get it, so I don't know what that is. But, you know, the idea that somehow that by going to court we were making it worse given the treatment we were getting before we went to court is preposterous. I don't, and I guess as I look at this, is that, and for those of us who go to court a lot, is that, you know, the decision for what should be public shouldn't stay in the hands of a FOIA officer. And that's what happens when people don't litigate. And it's, to me, it's a lesser version of what happens in the criminal justice system. The cop arrests somebody, there's no real defense attorney brought in that's going to care about the person's case, the judge wants it pleaded out, and pretty soon the cop's decision decides who goes to jail. That's not how the system's supposed to work. And I think the same thing about FOIA. The FOIA officer is not supposed to be the last word because people are gonna shrug and walk away. And that's why I think the litigation part is so important and I resent the notion that as Charlie reported, that somehow we're being punished by asking the courts to make an independent termination. So unilateral promises are easily broken, unilateral decisions, sort of the lowest common denominator. What are the structural things that a government can do to ensure transparency? What are the ways in which a government can sort of, you know, to borrow from Howard, like tie itself to the mass to force it to disclose, even when the people involved in the people who are holding the records don't want the information to go out, but yet nevertheless the information should go out. Nani, I wonder if you've seen anything, because you've seen several different legal regimes that have had a freedom of information. Have you seen anything that's especially effective at insuring disclosure or insuring transparency? I'm afraid I have not. Okay, never mind. But one of the things that I think is one of the biggest obstacles actually is the whole procedure in challenging decisions that you do not agree with about disclosure of information. And you can see that the bureaucracy can be very, very effective in just obstructing and delaying, et cetera, so that the information that someone is after is either outdated by the time it might eventually get released, or people just get lost in an administrative maze, basically. You've seen in Africa a big rollout of access to information, model laws, which then are adopted, but do not fit together with the rest of the system, leaving people being pointed from one institution to the next, et cetera. People don't really know how to file a complaint and where to file a complaint. When do you actually end up in court? But I mean, that's one example. I think a lot of people will have seen what had happened in the UK with Prince Charles's letters. That also took quite a number of years of litigation. And of course, lots of firepower from a big paper, let's just say The Guardian, that was really willing to pursue that. I think for bigger news outlets, that's more feasible, but for smaller or independent reporters or individuals, it becomes really cumbersome. Anyone else? Well, I was just gonna point out the resource problem that agencies don't have the resources, I mean, in terms of the problem of delay. They don't have the resources because they don't want the resources. They welcome the opportunity to be able to point to the lack of resources when they get sued after they've sat on a request for a year. They have their boilerplate declarations already to go about how limited the resources are and they don't have any staff. And they never make an effort to address the problem because they don't want the resources. I've always thought it would be an interesting exercise for the congressional committees that oversee FOIA to look at the agency public affairs budgets and see how much money they spend sort of putting out the stuff that they want, sort of the happy stories about what a great job the agency is doing versus the amount of money and resources that they devote to answering FOIA requests that is driven by what the public wants to know. And I suspect that the FOIA resources would be a very small percentage of the larger agency public affairs budget. I think that's interesting because that's a different take than what we heard earlier today too because I think Amy, you might have mentioned this too is that a lot of solutions or proposed solutions for agencies are technology deployments. Better records management, better email management. The problem is that those are too resource intensive that the agencies don't know how to use them or it just takes up too much computing power, it just takes up too much whatever power for them to actually do that. Do you buy that or do you think that this is actually a convenient excuse? I think to a large extent it's a convenient excuse. I mean, it's just when the head of an agency is deciding what he or she wants to seek resources for, I have to think that FOIA is very far down on the list. Yeah, I think it's a really good question because we all end up complaining about the system and what's the solution? And I think there are some things beyond the resource problem, which is real, that would help. One is that the FOIA officers don't have enough independence and until you have a system where they're not beholden to the agency and they're not going to get in trouble with the agency, I think it's hard to be very optimistic about it. In Mexico and its mother places, there is an agency that operates independently of the particular agencies that have the documents and has the power to override that particular agency. Until you have that, you're going to have FOIA officers who may be very well-meaning, may want to do the right thing, but are caught up in the realities of being in big organizations. There was a FOIA case that I had several years ago now where a FOIA officer emailed a Times reporter with a very standard response that we have diligently looked for documents and we have found no documents and we're continuing the search and we expect sometime in the next century that it will be considered, it will end the search, followed immediately by an email from the same guy saying, somebody just made me send that, it's not true. And I think the only thing that's rare about that probably is that he had the honesty to say that. But I think that also, and I'm going to come back to the courts here, I do think that the agencies through the Justice Department are moved when there are court rulings and the courts have really let us down. If you look at what happened during the Hillary email FOIA cases, what you see is the State Department and the intelligence community in an argument over what's classified. And the State Department spokesman says in September of 2015, classification is not black and white. You then see the president going on television and saying there's classification and then there's classification. And then you read these emails which show that they were actually negotiating promises to the state, was that negotiating promises to the FBI that if they would back off on a classification decision, maybe they would have an extra FBI person in Beirut. And you see they're just negotiating politically. If federal judges could be as brave as State Department flacks and say, it's not black and white, but too often we see on these classification decisions, the government rolls in, says the declaration, says this has to be classified, and the judge says, I have to defer to that judgment. Changing that would change a lot. The other piece of that is that, so there is this sort of question of what is classified or what should properly be considered classified. And I agree it would be great if judges would get their hands dirty in that question more often. But then even once it's determined that something is properly classified, in many other countries, or at least in some other countries, there's a public interest override possibility, right? So yes, there's a national security justification for keeping something secret, but the public also has an interest in making some of that, a subset of that information public. And there really should be something in the statute that expressly contemplates a public interest override because there's always going to be an argument. The government's always gonna have an argument about possible harm from disclosure. It'll always be possible for the government to point to an exemption when it wants to withhold a document. The real question we should be asking is not, is there a cost or a possible cost to disclosure, but is that cost outweighed by the public benefit of disclosure? And that's not a question that our system asks, that judges don't think themselves empowered to ask that question, and the statute doesn't expressly give them the power to ask that question. I just wanna quickly mention on the point of the judges. Yeah, I mean, I agree that to some extent it's a lack of courage to sort of do anything but to defer to agencies, but I also think certainly in DC where I practice and where most of the FOIA litigation takes place, it's a matter of self-interest on the part of the judges because they hate FOIA cases and they don't wanna create any incentives to litigators to come bring more cases in the belief that we're gonna get anything as a result of litigating. I mean, in some context, in the context of delay, for instance, where you file a case after an agency has sent a request for a year, I've had judges tell me that there's no way I'm gonna send a message that somebody just has to file a lawsuit to get a faster response to their FOIA request. So that's at play here as well. Sure. I wanna move off of FOIA a little bit and talk about transparency more generally and the way in which digital technologies have changed this a little bit. So we have a new administration coming in, perhaps you've heard. There's coming in in part of what I'd say has been an arc recently about the role of presidential communications in informing the public. So if we go back before Obama, certainly before Bush, if the president wanted to get a message out to the public, they had to go through the White House press corps and would have to then be subject to the scrutiny that being before the White House press corps, having their press secretary before the White House press corps, exposes the questions that naturally follow when a president makes a statement. Starting with the Obama administration, I would say in particular, there's been a real push to communicate directly with the public and that's good on some levels, but it's bad on some levels because it means they're no longer exposed to that scrutiny. With the Trump administration coming in, I'd say we're not just angling towards circumvention, we are angling towards a direct attack on the press and the press corps. As of this morning, Trump has tweeted 24 times since being elected president. 19 of those appear to be actually from him when using the classic Android versus iPhone test. Just under half of those, eight of those, were direct attacks on the media, not for nothing, David McRoss, six of those were direct attacks on the New York Times. The failing New York Times, yeah, let's get to that. By the way, you had some subscription numbers come up, right? Subscription numbers came up today. You guys are actually up quite a bit right now, but. We wanted to get the right hashtag on there. That's right. Got to help on this. Go to that one. What comes next? Nani, I'm gonna start with you again. So have you seen this in other countries and what are we in for here next? With a dueling administration going after the press directly instead of just trying to work around the press. And name the countries. Yeah, please. Couldn't have a little hold of shame here. Yeah, please. I'm not quite sure what to say here. Legions are really bad examples. So I have to say though that I'm not that pessimistic as regards to the defense of the press in this country. You have a very strong first amendment tradition. You have excellent lawyers here. You have excellent courts. I think that the first hit will be very unpleasant, but I think in the longer run that that should be balanced out. I'd like to think so anyway. You are here after all. But yeah, I don't know. People who litigate in the system are often would be the ones to speak to that more than. Yeah, Dave, I may turn to you directly here. Because in addition to Trump's attacks on the times, you yourself became a bit of an internet celebrity this cycle because you were the author of a response to a cease and desist letter that Trump sent the New York Times. That if we gave out awards for best cease and desist response 2016, I would nominate this response. Yeah, absolutely. Absolutely. Are you worried? Are you afraid of what comes next? You know, I'm not in part, I sort of am anticipating my response. And maybe I'm with Dave Chappelle on this that just give him a chance if he'll give us a chance. It seems to me that at some point there's going to be real news again. There's going to be a terrorist attack. There's going to be a Russian invasion of Ukraine. Russia is going to take over Latvia. Something in Mosul is going to happen. Something that's a real news event. And I think when that happens, we will finally see how the system of covering the president is going to work. I think at this point when we're still in the hangover from the election and the way it was covered and the way the appointment process is now being covered and so forth is sort of turned in on itself. That said, and I'm not very concerned about the, they're becoming some sort of change in the libel laws, their state laws. There's the United States Constitution. I just don't think the president's going to be in a position to really do damage or good on that front. But I am concerned about leak investigations. We had too many in this current administration. I fear that will continue. Subpoenas on the press, as part of that, the Obama administration actually showed a lot of restraint as far as actually subpoenaing the press, the reporters. There were a couple incidents, but by and large there's a lot of restraint. I'm not sure we're going to see that. I would not be optimistic about a grander look at FOIA. And I think probably around the margins we will see some pushback in the law. But primarily I think the thing that to watch is does the relationship between the White House press corps and the White House normalize? Do they find some way to get back to something that looks a little bit like it does now? I don't think that the Trump administration is going to take away his cell phone, so I think his tweets will continue to be a major form of release of information, but I'm not sure that that's going to change the Republic. And maybe that raises another question about the difference. There's been a lot of consternation. I think to sort of build upon Professor Sunstein, he had this difference between input transparency and output transparency. I may say a difference between transparency and accountability as being a distinction that's raising a lot of concern right now. So just to take the example of Steve Bannon for a second who, I guess that you're most charitable, you could say he surrounds himself with a lot of anti-Semitic and racist people. At your least charitable, you say he is racist and anti-Semitic. Everyone knows he's going to be appointed to this position. It's not a question of transparency. It's just a question of what can be done about it. Do we think that the Trump administration is going to give us a lot of concern for secrecy? Or do you think it's going to be brazen defiance with no clear check? Well, it's a little of both. I mean, I think that the income tax example is sort of, you know, brazen secrecy, right? It's like, we're not going to tell you and, you know, FU. That's the end of the story. Defiance is in some ways too optimistic a word. I mean, the truth is if enough Americans protested, he probably would remove Steve Bannon from whatever position he's now in. You know, but transparency is no guarantee of the result that you want or I want, right? That's the unfortunate fact, right? You can be, the government can be transparent and most citizens can be okay with whatever the government is doing. So in that particular area, I'm not sure the complaint is about transparency or accountability, but rather about, you know, our fellow citizens to different complaint. The, I want to spend a little bit of time also because it came up in some of our discussions before about the decision not to publish information. We've been talking a lot about transparency and how do we ensure greater transparency. And curious as it sounds, there are times when an activist or a journalist or other person who's seeking to inform and enlighten the public obtains a piece of information from the government that they determine is not safe or prudent or responsible to disclose. I wonder if each of you could maybe speak about a time when that might have happened for you and what was the calculus in your head? Why did you decide to impose secrecy at a time when at least the government through either intentionally or unintentionally did not? I have encountered situations where an agency has, in response to a request, I believe inadvertently released some personal information relating to third parties. And given that most of the FOIA work I have done has been on behalf of organizations that are sensitive to and supportive of privacy rights and advocate for those rights, I felt that those were circumstances where we, in effect, needed to make the editorial decision not to be as transparent, if you wanna put it that way, as the government was. But again, they were under circumstances where it appeared to be inadvertent. And an inadvertent disclosure of something that didn't implicate privacy rights, I don't think I would have felt as obligated to make that decision. But where privacy was at issue, I did. Well, you know, and The New York Times has been all over this issue in various ways. The holding the warrantless wiretapping story for a year was a decision that has been criticized a lot. I don't think it would be made quite that way today. But I think that there is, you see in that and you see in WikiLeaks and you see, to some extent, the Snowden disclosures. That a system had normalized itself, that we receive a leak of information, our editors make an initial judgment about newsworthiness and public interest. There is a dialogue with the government where it is to me the same thing as any other routine reporting. You're trying to find out, is there something more we should know about this? And as long as the editors retain the power and the right to say no to the government and publish, then I think that system works. And I think it actually assures to a certain extent that the right information ends up getting released. That system, I think, is breaking down to some extent. The Times ran into this when it was reporting on a threat in the Middle East and went to the government, was about to report it, the government asked that certain details not be reported. The Times decided that the important part of the story could get out. They could withhold the details of how the information had come to the government and was greeted by finding that the McClatchy newspapers had not talked to the government and published the details. And our reaction was, look, we all have to play by the same rules or not. We're not going to get scooped for being good citizens and I think that now there is much more of a tendency to publish and let the information out. I think in many cases that's a really good outcome. I think in other cases it actually poses some risk and it would be much better if we continued to have that dialogue and then made the decision. We almost had an issue like this of the ACLU we were litigating for the release of the abuse photographs that hadn't been leaked with the Abu Ghraib photos and we eventually learned that there were 2,000 of these photographs that hadn't been published and we won in the district court in 2005, a judge in New York ordered the government to disclose the photos, we won in the court of appeals and then when the Obama administration came in in 2009 they said they would release the photos. After they said that we sort of, suddenly we're not often in the position of winning. So we started thinking about well what are we going to do with these photos now? We have been saying for five years or six years we need the public has a right to see these and we believed that and we said that the photos were important to the public record and we believed that but the government had been arguing from the beginning that if these photos are released they will be used as propaganda by our enemies and they may even be incendiary and provoke violence against American civilians and American soldiers and the courts disagreed with that but we knew that if we released these photos and there were a riot somewhere in the world and somebody died that we'd be held responsible for it and so we were very worried about the release of the information and we thought a lot about what a responsible release would look like and the decision we came to was that we would include a couple news organizations in the decision about both what to release or the photos that we got and how to release them. The way the FOIA works is once we won that victory then in theory anyone could ask for those photos and put them out there so there's only so much control we had at that point but we thought that we're not gonna be we wanna be responsible agents and if other people are gonna be responsible that's their issue and not ours. Now as it turned out, depending on your perspective on this, we got lucky and the Congress retroactively amended the Freedom of Information Act to carve these photos out and so now we are back in court or the ACLU is back in court fighting about the scope of that retroactive carve out maybe sometime in the next century somebody will get hold of these photos and have this issue again but it was a very hard set of decisions for us when we thought we were about to get these photos and I do think that if you come into information through this process or any other process you have a judgment, at least a kind of moral and moral judgment about what should be released and what shouldn't. I actually thought you were gonna talk about the inadvertent release of documents. We had that too. I had a long running FOIA case against the NSA Department of Justice, CIA sort of the intelligence communities and they were making a production of documents. This one was from the DOJ and they inadvertently released a classified document that it came as part of the FOIA release and it came late at night and I just passed it on to the reporter because that's what we do because the government always says we're gonna post them and we don't wanna get scooped. So sent the documents to the reporter and the reporter found that the most interesting document in the whole pile of course was the classified document that shouldn't have been released and as you can imagine my cell phone started ringing the next morning, my email lit up, my office phone started going off the hook and it was the government asking me to give the document back and then they spoke the most chilling sentence you can have in that and this was when it happened to the ACLU, they gave it back. Hahahaha Hashtag WTF So my next call was did your meal. We had a really interesting conversation though and because it wasn't, it's more nuanced than you think because I think you guys had decided when it happened to you that it wasn't that important of a document and you're playing in a different space than we are. Well yeah, so we were, in that case we were, in the case where we gave the document back we were litigating a job that might have been at the ACLU at the time, we were, although this happened more than once, we were litigating for the release of the document. We felt that we were, if somebody had given this document to us, we weren't in litigation, we would never have given it back to the government. We would have published it but we're also officers of the court where we're repeat players before the Southern District or repeat players with the DOJ. I hated this part of the phone call. Yeah, well, you and I made the argument, I think, to you that you're in a different situation because you're a news organization and I think you weren't, were you litigating for that document? There had been a schedule set by the court. There had been no order given but the court had approved a schedule for the review and the release of records just like they do in so many cases and then you decide whether you want to have motion practice over it. So there was, to a certain extent, you're absolutely right, the court was involved. Right, so you have multiple audiences that you need to be concerned about in terms of reputation, right? It's not just your readers but the judge and... Right, and the idea of going to a reporter and saying you have to give it back and having that person say, well, what about if it'd come from Edward Snowden? What if it'd come from Julian Assange? What if it'd come from Daniel Ellsberg? What, what, what, I mean, how can this be different? The government gave this to you legally as part of a FOIA response and that didn't mean I was really certain of my position either and I kept saying to the AUSA, have the NSA call the editors and then they did, the NSA called the editors. They had a very standard decision as if it had been a leaked document. The New York Times made its decision to publish, I think, almost all of the document and then the AUSA called back and at that point I said, we should have the judge decide this because if I was going to go tell a reporter that he had to give a document back, I at least wanted to say a judge and not me was always making that request and it turned out it was a newsworthy document. It dealt with what phone companies were actually working with the NSA in providing metadata and the collection of metadata and the AUSA decided not to get on the phone to the court which was a really happy moment in my life. But we had those issues actually multiple times and I don't think any of them was ever resolved in a satisfactory way. There's another instance in which we got a document, the government said was classified and that had been given to us inadvertently in the context of FOIA litigation and we took it to the judge and or maybe the government ended up taking it to the judge I can't remember who went to the judge first but and we argued to the judge that we should be entitled to release it because it was not properly classified and we lost. When I asked what I sometimes call the honey or vinegar question. So a lot of people, I think especially recently there's been a lot of energy around doing public records requests yourself and trying to set up and I'm an attorney who has brought FOIA into my practice fairly recently and I had this question when I first started doing these requests for my clients was do I approach this like I would any other negotiation? Do I try and be value creating? Do I try and be friendly? Do I appreciate the fact that this is a human on the other side of the line and if I'm nice to them maybe they'll throw me a bone or do I just go hard and fast litigator or do I just be as rough and direct and slam the law down as much as possible? I started with the honey. The more and more I did the honey the more I realized the vinegar might be the better option but what has been your experience? How do you balance that between being the trying to be friendly, trying to be source-cultivating trying to get that second email after the first serious email saying that was just formality in truth we do have a record here versus just relying on the law and relying on the system of the law to get to the result you're looking for. I think it's very much a matter of personalities and relationships. I mean, I can't say I have one approach in all of my cases because it depends very much on who's on the other side. But I would say as a general matter I mean I see FOIA litigation as sort of a chipping away process. I know that some attorneys who sort of come to FOIA cases after having a lot of experience doing other kinds of cases are sort of amazed at the idea that eventually you might get to a point in a FOIA case as a plaintiff where you'll voluntarily dismiss the case. But that's kind of how it works. It's sort of this drips and drabs of getting more information. Sometimes you don't actually get the documents. Jamil and I were just talking about this earlier but you learn something in the course of litigating the case in a declaration or something short of the actual documents that you started out trying to get. So it's very much case specific in terms of the circumstances and also the individuals who are involved. Yeah, and I thought the presentation earlier by the folks from Muck Rock was right that there is a lot of information and you get a lot of stuff that ends up in litigation were sort of at the fringes of FOIA and pushing the law and pushing the right of access. But there is a base of documents which you can get. And I think in those cases working with the FOIA officer and being positive about it and trying to think of ways to solve whatever his or her problems are in terms of rolling production or redaction or what documents are gonna be difficult is a good approach. In the city of New York when we have state FOIA FOIA issues some of the reporters are really good at this. And I always sort of say you should think of using FOI if you are a reporter as just another form of reporting. It is not a vending machine. You don't put your request in and the can of Coke falls out the bottom. You have to do what happens at the New York Times. You have to shake the machine. You have to get it. You have to keep working at it. You pray, you do all these things in front of the machine to make it deliver the document. And it's the same thing. But I was working with one reporter who was doing a story, two reporters were doing a story on foster care. And it was kind of brilliant. One of the reporters set up a meeting with the head of the agency and the FOIA and the FOIA officer, me and the reporters. And of course, the head of the agency is going like, New York Times, we're gonna give you everything you ever want. And the FOIA officer is going like, oh, we're gonna give you everything. And it was really kind of a beautiful bit of reporting because now you had the head of the agency committed to helping you on your story and the FOIA officer had no place to turn. Can I just mention in terms of, David talking about his experience representing the New York Times and me talking about representing my clients with a reputation of having litigation expertise. What I worry about is the average citizen who doesn't have the wherewithal to sort of stand up to the barriers that are thrown in front of them, whether it's fees or delay or it's not a proper request. I mean, you know, so it can work to some degree for those of us who have the resources and expertise and wherewithal to pursue it. But sort of for the average requester, I mean, I have had real concerns throughout my career about sort of where people are generally left in this process. And so let me raise a point that Michael Morrissey from McRock raised during his presentation. He expressed his distaste for the phrase, public records don't work unless you sue. Do you think they don't work unless you sue? Look, I mean, he has more direct experience sort of on that end of the spectrum, but my perception is, you know, my clients would not have gotten nearly the kinds of results they've gotten if we didn't have the ability to go to court. I think that's consistent with my view, but you should recognize that the three of us end up litigating the most politicized cases, right? So they're the ones where the government is most likely to dig in its heels. I mean, there are, you know, if you're asking, you know, if you're outside the national security sphere, outside law enforcement, you know, I think it's a little bit easier and you still have, there's still a lot of issues you have to deal with, including the fact that the system is so clogged with quests, but you don't always come up against the resistance that you sort of affirmative resistance that you come up against with national security issues, at least. Have you had to sue mainly to get the transparency you've been looking for? Yeah, I just want to say, like you, of course you get kind of a skewed view as a litigator because only certain types of cases end up on your desk and particularly at MLDI, only certain types of cases end up on our desk. But yeah, those would always be situations in which any honey would not have made any difference. Name a country like Azerbaijan, information that really should have been released under the extra information law. If you get a no there, you get a no throughout the entire legal system, the only way you can go is the European Court of Human Rights. So yeah, you'd just be wasting your time by asking nicely again and again. A few years ago I was working with a group in Kuwait which was writing a freedom of information law and we get to the end of their draft and the end of the draft says that if the FOIA officer does not meet the deadline, then he's subject to a one year jail term. That's good. And so, as a human rights type lawyer and global norms type lawyer, I of course felt like I should say we can't really do that, right? But as a veteran FOIA requester, I'm going like, that's not really a bad idea. Crazy sense. I want to ask one more question and then I want to turn it up to the room. So you have been successful arguing in Europe that the right of access to records is a constitutional right. Or you've been making that argument and that argument has some traction. There are cases that you can cite under Article 10 of the European Convention of Human Rights that seem to suggest a right of access to records. The United States has not had that much luck with that argument. Generally, when you're talking about court, you're talking about court records, there's actually some great cases on point. But once you get outside of the court process, you're more in just a pure statutory land. Do you find that makes a difference when you're able to sound the argument under a constitutional or international agreement? I should probably nuance that a little bit. A decision came out from the Grand Chamber of the European Court of Human Rights last week, which was a big step in the right direction towards acknowledging a full-fledged right to access the information under Article 10 of the European Convention. Unfortunately, the European Court is not as wonderful as, for example, the Inter-American Court, which is just flat-out said, like, yes, there's a right to access to information. Under Article 13, you just have to meet the three-part test and for the rest, there's not a lot of discussion. The European Court has an approach that says, like, yes, there can be a right to access to information if you are a public watchdog, which could be an NGO, it could be a scientist, it could be all sorts of things, if your intention is to make this information available to the wider public. I seriously do not know why they are taking such a long time to step in line with the Inter-American Court, the UN Human Rights Committee, et cetera, but anyway, they're slowly getting there, I hope. I do think that, generally, this judgment is seen as something that would really reinforce access to information litigation throughout the Council of Europe. There have been a number of cases that were pending and that have been put on hold awaiting this judgment, so I hope there'll be positive outcomes there, so, yeah. As litigators, do you think that you'd have more traction being able to, same substance, just being able to point to the Constitution? Well, it would help, first we have to establish that, and Jonathan says he's going to, so. So, we are doing it, the closest we're doing it now is for when we make a FOIA request for records from an administrative adjudication, it is not uncommon for us also to write a letter to the, in the case I'm thinking of, the immigration court, saying, we think you are a court, we think under this standard press enterprise line of cases from the Supreme Court that there is a constitutional right to those documents, and so, in addition to our FOIA request, we were making a constitutional request, they get very puzzled when you write that letter, and many times act as if you just made a FOIA request, and so, we actually twice sued over that, where cause of action one, FOIA for the release of documents from the immigration court, and cause of action two, constitutional right to it, and the government quickly mooted both cases by delivering the documents. I think it could help at the margins to have a constitutional standard to point to. The judges that are very deferential on FOIA request might be marginally less deferential if there were a compelling interest, narrow tailoring standard that had to be met, but it's hard to tease out how much of the deference that courts give to the executive is a matter of judicial culture and how much of it is a matter of the actual standards they're applying. But on the downside, we wouldn't have a statutory right to attorney's fees. Right? There's that too. Questions from the audience? Yes. Okay. Let's get you on record for a member of the Obama administration. I was a former appointee in the Obama administration at commerce, and we certainly dealt with our fair share of FOIAs, and just out of curiosity, are there agencies which are better, because we wouldn't know internally, better at dealing with them, and worse, and I'm no longer part of the administration, so this is not at all on the record or anything like that. We're just saying we're all... It's just easy. I have a 100% batting record at the GSA right now. I'm pretty happy with that. I've always heard that HHS is good, but I've never dealt with them, so I don't know. It's an interesting question. I have lots of problems with the FBI, and for reasons that strike me as being hostility, but perhaps I should expect that. They're hostiles, everybody. Okay, I won't feel in person. But we were at a conference at Columbia in the spring about FOIA, and this FOIA officer who was speaking came up and said, oh, we haven't talked to each other in a long time, and I didn't remember him at all, and he was at the FDA, and while he was speaking, I looked at my email, and I'd received 52 emails from him over a particular request. There are agencies that haven't emailed anybody in the world 52 times, and part of it was that they're very specialized, and a lot of their requests come from industry, and their FOIA office is professionalized to deal with very complicated scientific issues. I don't think you get that in many of the agencies. In the back. I'm giving Dan a workout today. Thanks. I can't resist making an observation, which is that the kind of arrogance, if you will, that I heard in some of the, maybe not intentionally, in some of the comments that Cass Sunstein made, is, I think, part of the problem that leads to the anger that leads people to make a bad choice and vote for Donald Trump, and I think in a liberal community, we'd be good for some people to think about that when pointing fingers about who's fault it is that Trump got elected. I, just a few days ago, went to hear a talk by the owners and operators of a bookstore in Buffalo, New York, called Burning Books, and the New York Times did a great story back in 2013. I commend you for it, about the postal, US postal mail covers that were put in place, and apparently you can just, you'd all you have to do is call up the inspector general, and you can get a mail cover on just about anybody, and the way they found out about it was a mistake made by an intern or something, a new hire who just happened to put the mail watch, slip in with the mail that was delivered, and they found out about it, and they ended up, they've been working with a lawyer in Buffalo who's, I think, well known in the field, named Kuzma, who's done a lot of work on FOIA stuff, and he put in a letter after this, which he then FOIAed to sort of help flesh out some of the details, but they are not yet at the point where they're gonna be maybe doing any litigation about this, which they're hoping to eventually, how many years later, because they're still engaged in FOIA activity, trying to get more information, which gets to Mr. Sobel's point of, I think, of how difficult it is, and Kuzma does this work pro bono, so I really wanna maybe just bring this up, but maybe just to reinforce some things that have already been said by members of the panel. First of all, how difficult it is for ordinary people, how much money you need, a lawyer that happens to be sympathetic, how long they drag their feet, and I think, I forget what the percentage they think they have, maybe 3% of the documents that they think exist after years of litigation, and who knows when they're gonna get to the point where they can actually say, you guys did something wrong when you did what you did to us. The one thing your story brings to my mind is how sort of inadvertent events sort of necessarily have contributed to this process, so you go back to the Cointel pro disclosures in the 70s, which resulted because there was a break-in at an FBI field office and Carl Stern sees the word Cointel pro makes a request and it all comes out. You have this example that you're citing of sort of an inadvertent disclosure leading to these revelations, and I would point to the Snowden disclosures as sort of the best and most recent example. I mean, my organization was in the process of litigating for the release of a foreign intelligence surveillance court opinion that was withheld in its entirety as top secret at the time that the Snowden disclosures were made, and as a result of what was disclosed, the Justice Department had to go back and do a declassification review resulting in the release of 80% of that opinion through which we learned, for instance, that the text of the Fourth Amendment had been withheld as top secret. So the process for better or worse has been assisted by break-ins and leaks and inadvertent disclosures and unfortunately all of that stuff has to happen apparently. Other questions? Jonathan. Hi, thanks, this was great. I wanna go back to the point that you raised, David, about the Espionage Act and leak prosecutions in the next administration. So I'm just wondering how you're gonna, you and other folks on the panel would approach counseling a national security reporter whose business it is to cultivate leaks and obtain classified information from sources, publish it. In the past, it seems like the bargain has been, reporters don't get prosecuted, they very rarely get subpoenaed. You go to the administration, you give them a hearing, you listen, you hear them out about why the information should be released, then you make a judgment, and that's the way it works. Are you concerned that that bargain is gonna break down? Are you more worried about potential prosecutions or investigations? And is this something that we should all be on guard for? I do think it's one of those issues that we should watch because an administration is making a policy decision, not a legal decision. But it's clear after the Jim Rising case with Jeffrey Sterling that the government in a national security grand jury investigation has great freedom to subpoena reporters and go after their sources. So our protection becomes in the absence of a federal shield law, our protection becomes the government's willing to stand down. And by and large, that was the record of the Obama administration. It was a very funny, bipolar sort of response is that they went after leakers more so than any other prior administration, but they did not, in making those cases, go after reporters. You may have noticed a couple weeks ago, General James Cartwright entered a guilty plea as part of a leak investigation. If you read the documents that were filed with that, he is accused, he ended up pleading to misleading the FBI. But the underlying activity involved talking to a New York Times reporter we never heard from the government during the entire investigation. It went on for years. The government never called, never sent subpoena, never asked for any cooperation we never heard from. And that was fairly typical throughout the Obama administration. And I think that in some ways the government, the Obama administration, bought into the argument that the New York Times made during the Pentagon Papers argument. New York Times lawyer, Yale professor, Alexander Bickel said, there is this disorderly situation and that the press, once it has information, has great freedom to publish it and the government should have great power to control secrets, including disciplining employees and stopping leaks. And I think Obama bought into that conceptually. I don't know if the next administration is likely to fall a suit. So you're confident that your phones weren't being tapped in your email when they were tapped? Yeah, maybe they didn't need to ask you. You know, it has never popped up yet. It has never popped up. I keep waiting for it to show up in this cases. Would we see it? I mean, so we might be able to see it coming too, right? Because one of the other things that came out out of the investigation was a change to the attorney general's advising to the DOJ about when to seek information from reporters or when to seek information, I should say, from telephone companies about the telephones of reporters. Would we see it coming if there's a change there or could that change just happen without us knowing that the attorney general's advice went away? There are guidelines by DOJ, as Andy's saying, that DOJ is supposed to follow in doing investigations. And it is a policy that limits both coming to news organizations and coming to phone providers of news organizations. And I think there's probably still, despite renegotiating those over the last two years, enough wiggle room that they wouldn't actually formally have to withdraw the regs to get where they want to go. I think we'll wrap it up there. Thanks, everyone. Thanks to Andy, Mount Agile, David, and David. And thanks to all of you for sticking with us through the day. Let's give these guys a round of applause. Thank you.