In my last post I repro­duced a num­ber of quotes from the UIUC-FOIA office and UIUC per­son­nel that would lead you to think they have their own unique the­ory that asserts that FOIAs ought not foul their doorsteps.

Here’s another exam­ple of such unwar­ranted the­ory:¹

Really?  “dozens of follow-up emails and ques­tions?” Well per­haps, if you include the emails I sent to Ms. Laura Clower, UIUC coun­sel, to inform here that she in fact didn’t have the right to tell me what FOIAs I could file, or to whom.²

But per­haps my focus is off, and I should just be grate­ful that UIUC-FOIA takes the ser­vic­ing of other FOIA fil­ers to be so crit­i­cal — although I might also note here that those other FOIA fil­ers don’t seem to be very happy with how UIUC-FOIA is treat­ing them, and the rea­sons have noth­ing to do with my own fil­ings.³

I’m hardly an expert on the his­tory of FOIA laws, but it doesn’t take much pok­ing to see why peo­ple who detest these laws as being a waste of time for pub­lic agen­cies are defin­i­tively wrong in this con­clu­sion.  The Elec­tronic Free­dom Fron­tier (“EFF”) has a nice short syn­op­sis on fed­eral FOIA law,⁴ and George Wash­ing­ton Uni­ver­sity has a good sum­mary of some of the leg­isla­tive his­tory of the fed­eral FOIA laws,⁵ as well as links to scan­dals that would never have seen the light of day had FOIA laws not been enacted.

Despite the ease with which these shin­ing exam­ples of FOIAs at work can be found, the defec­tive anger against such laws con­tin­ues.  I don’t sup­pose I can do any­thing to stop that; but, since UIUC-FOIA has per­son­ally attacked my fil­ing FOIAs, I thought I’d devote this blog post to what strikes me as the best exam­ple of why FOIA laws exist and are crit­i­cally important.

That is, U.S. v. Reynolds.  UIUC-FOIA and var­i­ous par­ties at UIUC, I do hope you’re civilly listening?

 

1. Civil­ians are killed in a mil­i­tary plane crash; the Air Force won’t allow access to the inves­ti­ga­tion records because the flight was to do secret things.

I first read about U.S. v. Reynolds in a fan­tas­tic arti­cle by Gary Wills in the 2–12-09 issue of the New York Review of Books titled “Why the Gov­ern­ment Can Legally Lie.“⁶  Below I am repro­duc­ing almost ver­ba­tim var­i­ous parts of the Wikipedia arti­cle sum­ma­riz­ing this incred­i­ble mis­car­riage of jus­tice:⁷

• Three employ­ees of the Radio Cor­po­ra­tion of Amer­ica [“RCA”], an Air Force con­trac­tor, were killed when a B-29 Super­fortress crashed in 1948 in Way­cross, Georgia.
• Their wid­ows brought an action in tort seek­ing dam­ages in fed­eral court, under the Fed­eral Tort Claims Act.
• As part of this action, they requested pro­duc­tion of acci­dent reports con­cern­ing the crash, but were told by the Air Force that the release of such details would threaten national security.

Now let me quote from another excel­lent arti­cle about the crash:⁸

At least to the pub­lic, the crash of a B-29 fly­ing over Way­cross remained a mys­tery. One news­pa­per informed cit­i­zens only that the “plane was on a secret mis­sion test­ing secret elec­tronic equip­ment…. Guards were sent to recover and pro­tect as much of the con­fi­den­tial equip­ment as pos­si­ble.” Another report advised that “full details of the plane’s mis­sion were not dis­closed, but it was believed that it may have been engaged in cos­mic ray research.”

…

Then, in late Novem­ber, seven weeks after the crash, RCA Exec­u­tive Vice Pres­i­dent Frank Fol­som mailed a typed, four-page, single-spaced let­ter to Hoyt Van­den­berg, com­mand­ing gen­eral of the Air Force. Fol­som, 54, would a year later become the pres­i­dent of RCA. He knew the mil­i­tary: From 1941 to 1943, he’d been chief pro­cure­ment offi­cer of the U.S. Navy.

…

Fol­som wanted newer, safer planes. He wanted all safety reg­u­la­tions fol­lowed. He wanted first-rate flight crews. He wanted “frank and open dis­clo­sure of all facts regard­ing the main­te­nance and oper­a­tion of air­planes.” He wanted his own inde­pen­dent inspec­tion of Air Force planes. And, when a crash occurred, he wanted the offi­cial acci­dent report.

But the mil­i­tary wouldn’t pro­vide that acci­dent report, since, they claimed, national secu­rity was at stake.

 

2. Since the US gov­ern­ment won’t pro­duce the records, the crash vic­tim wid­ows win; then the US Supreme Court steps in and reverses the deci­sion, say­ing secret is secret.  The wid­ows are forced to settle.

So far so clear.  Now back to Wikipedia:

• Because of the fail­ure of the gov­ern­ment to pro­duce the doc­u­ments, a directed ver­dict in favor of the plain­tiffs was granted by the trial court.
• The judg­ment was affirmed by the United States Court of Appeals for the Third Circuit.
• In 1953. the United States Supreme Court reversed the deci­sion, and remanded it to the trial court.
• Shortly there­after, a set­tle­ment was reached with the wid­ows, who received an aggre­gate sum of $170,000 in exchange for a release of lia­bil­ity to the Government.

More specifics:⁹

The gov­ern­ment, wrote [Supreme Court] Chief Jus­tice Fred Vin­son for a 6–3 major­ity, had made a valid claim of priv­i­lege against reveal­ing mil­i­tary secrets, a priv­i­lege “well estab­lished in the law of evi­dence.” The deci­sions of the Dis­trict Court and the Court of Appeals — of Judge Kirk­patrick and Judge Maris — were there­fore reversed.

[Vin­son went on to say that,] “[i]n the instance we can­not escape judi­cial notice that this is a time of vig­or­ous prepa­ra­tion for national defense. Expe­ri­ence in the past war has made it com­mon knowl­edge that air power is one of the most potent weapons in our scheme of defense, and that newly devel­op­ing elec­tronic devices must be kept secret if their full mil­i­tary advan­tage is to be exploited in the national inter­ests. On the record before the trial court, it appeared that this acci­dent occurred to a mil­i­tary plane which had gone aloft to test elec­tronic equip­ment. Cer­tainly there was a rea­son­able dan­ger that the acci­dent inves­ti­ga­tion report would con­tain ref­er­ences to the secret elec­tronic equip­ment which was the pri­mary con­cern of the mission.”

 

3. 50 years later, the declas­si­fied acci­dent report is released, and turns out to have con­tained no secret information.

So the acci­dent report in the the Project Ban­shee crash could be appro­pri­ately with­held, the Supreme Court con­cluded, if there was a real dan­ger of US secrets being dis­closed in the report.  The case was remanded to the lower courts, which con­cluded that this was indeed the case, and the acci­dent report was withheld.

Flash for­ward 50 some odd years, when the acci­dent report was declas­si­fied.  And guess what — no secrets.  Just facts that sup­ported claims of neg­li­gent main­te­nance of the air­craft, the kind of infor­ma­tion that should have been made pub­lic in the 50s when the case was orig­i­nally brought.  Again quot­ing Wikipedia:

The radio pro­gram This Amer­i­can Life reported in 2009, that, con­trary to claims made in the case, the acci­dent report con­tained no infor­ma­tion on the secret equip­ment on the plane except to note that secret equip­ment was present, a fact which had been reported in the press at the time. The pro­gram inter­viewed the daugh­ter of one of the crash vic­tims who described the government’s claims in the case as fraud­u­lent.¹⁰

 

4. The daugh­ter of one of the crash vic­tims files suit, claim­ing fraud on the courts; she loses, since, the courts say, “seem­ingly insignif­i­cant pieces of infor­ma­tion would have been of keen inter­est to a Soviet spy fifty years ago.”

But that’s not all, folks.  Wikipedia again:

After release of the clas­si­fied doc­u­ments, new lit­i­ga­tion was attempted, based in part on a com­plaint that the clas­si­fied mate­r­ial con­tained no secret infor­ma­tion. Mon­e­tary dam­ages were sought as a rem­edy. The ini­tial new claim was to the Supreme Court for a writ of error in coram nobis,  based on the claim that the use of the “secret” label in the orig­i­nal crash report was a fraud on the court. This was an attempt to over­turn the set­tle­ment agree­ment of June 1953. This motion was denied on June 23, 2003 in In re Her­ring.¹¹ The case was refiled as Her­ring v. United States in the United States Dis­trict Court for the East­ern Dis­trict of Penn­syl­va­nia on Octo­ber 1, 2003. The trial court found no fraud in the government’s claim of priv­i­lege in 1953.

In 2005, the Court of Appeals for the Third Cir­cuit upheld the deci­sion in the new lit­i­ga­tion, in which the Dis­trict Court deter­mined “there was no fraud because the doc­u­ments, read in their his­tor­i­cal con­text, could have revealed secret infor­ma­tion about the equip­ment being tested on the plane and, on a broader read­ing, the claim of priv­i­lege referred to both the mis­sion and the work­ings of the B-29″. Even with­out the broad read­ing that the claim included secrecy con­cern­ing the air­craft itself, the court found it pos­si­ble that the doc­u­ments’ rev­e­la­tions “that the mis­sion required an ‘air­craft capa­ble of drop­ping bombs’ and that the mis­sion required an air­plane capa­ble of ‘oper­at­ing at alti­tudes of 20,000 feet and above’” could have been “seem­ingly insignif­i­cant pieces of infor­ma­tion [that] would have been of keen inter­est to a Soviet spy fifty years ago.“¹²

So the upshot is that, in keep­ing with judi­cial def­er­ence (or some­thing), the fact that some­one at the time might have been able to argue that there was some­thing there that would have been “of keen inter­est” to a spy, that would be enough to obvi­ate a claim of fraud about the orig­i­nal state­ment that secrets were present in the acci­dent report.

 

5. Let me be clear — the Reynolds case is a per­fect exam­ple of why UIUC-FOIA and the Chan­cel­lor of the UIUC sys­tem ought be bend­ing over back­wards to encour­age FOIA dis­clo­sures, rather than sup­press them.

Com­men­ta­tors argue about whether or not the State Secrets Priv­i­lege that derives from U.S. v. Reynolds is a good or bad thing.  Regard­less, what Reynolds points out is how eas­ily state and fed­eral gov­ern­ments can cre­ate their own sto­ries, at least as long as there’s no mech­a­nism for fact-checking their claims.

FOIA laws are the front-line in that fact check­ing, and so impor­tant to gov­er­nance that these laws are explic­itly described in that crit­i­cal con­text, as I’ve pre­vi­ously noted.¹³

This is some­thing I’d like to hear the UIUC-FOIA office and the Chan­cel­lor of the UIUC sys­tem explic­itly acknowl­edge and embrace.  If UIUC-FOIA is really cor­rect in claim­ing that “there is no ques­tion that” lit­tle old me is, single-handedly, over-taxing the UIUC FOIA sys­tem, then per­haps that sys­tem needs to be robus­ti­fied a bit, because it serves a crit­i­cal func­tion, despite what appar­ently a lot of UIUC per­son­nel think.

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1. See foot­note 3 of the response of UIUC in my appeal before the Illi­nois Attor­ney General’s office 2014 PAC 29003. [↩]
2. This will be the sub­ject of a later post. [↩]
3. See, for exam­ple, the law­suit filed in the Salaita case, which I dis­cussed in my ear­lier posts. [↩]
4. EFF His­tory of FOIA. [↩]
5. GWU Leg­isla­tive His­tory of Fed­eral FOIA. [↩]
6. Why The Gov­ern­ment Can Legally Lie [↩]
7. See Wikiedia — U.S. v. Reynolds. [↩]
8. How the Death of Judy’s Father Made Amer­ica More Secre­tive. [↩]
9. Again quot­ing from How the Death of Judy’s Father Made Amer­ica More Secre­tive. [↩]
10. Wikipedia itself links to the This Amer­i­can Life episode, Ori­gin Story. [↩]
11. In re Her­ring 539 U. S. 940 (2003). [↩]
12. Her­ring v. United States 2005, 424 F.3d 384, para­graph 13 (2005). [↩]
13. See, e.g., the pre­am­ble to the Illi­nois FOIA law, which I dis­cussed in my pre­vi­ous posts. [↩]