Federal courts are “far too deferential” to the executive branch’s claims that information classified on national security grounds and shouldn’t be released to the public, a prominent federal judge said Monday.
Speaking at a conference for federal employees who process Freedom of Information Act requests, U.S. District Court Judge Royce Lamberth said his fellow jurists usually rubber-stamp agency claims that disclosing information would jeopardize national security.
“It bothers me that judges, in general, are far too deferential to Exemption 1 claims,” Lamberth said, referring the language in FOIA that allows for withholding of information classified pursuant to an executive order. “Most judges give almost blind deference on Exemption 1 claims.”
According to the text, judges are supposed to make a “de novo” determination whether information is “in fact properly classified.” However, most have taken that to mean primarily considering whether the mechanics of the classification process were followed. By an large, judges do not delved into whether the reasons for classifying the information were legitimate or they accept any plausible reason. Some appeals courts have endorsed such a hands-off approach to that issue, though some judges have occasionally ruled classification decisions to be improper (see here and here).
“A lot of the courts have been very hesitant to do very much in that area because there is this constitutional problem” of the judiciary intruding into the traditional executive branch domain of national security, Lamberth told the American Society of Access Professionals training conference in Arlington, Va.
Lamberth, who sits in Washington, D.C., said his views were informed by “a couple of really horrible examples” of intelligence agency misconduct that might have been more quickly exposed and addressed if courts held a more “robust” interpretation of FOIA rights. (He may have been referring to this case, among others.)