U.S., et al. v. Weatherhead, Leslie (12/03/1999)

By: Kerri Jackson, Medill News Service

Questions presented

Whether the appeals court erred in holding that the Freedom of Information Act's national security exemption does not apply to a letter sent in confidence from the government of Great Britain to the Justice Department concerning a sensitive extradition matter despite the Justice Department's claim that disclosure will undermine the of the British government.

Brief

It started out as a case of attempted murder. Then it became a case about the possible threat to national security if correspondence between the Britain and the United States were released. Finally, it all became moot.

Two British women, Sally Croft and Susan Hahan, were extradited to the United States from the United Kingdom to stand trial for conspiracy to murder the U.S. Attorney for Oregon. The women were members of the controversial Rajneeshpuram commune in Central Oregon in the 1980s.

During the extradition process in 1994, the British government sent a letter to the U.S. Justice Department that was believed to contain an official British request that measures be taken to avoid prejudice to the women in the district where they were being tried.

Leslie Weatherhead, the attorney for Croft, filed a Freedom of Information request with the Justice and State Departments for the letter, so he could present it to the judge in the case.

He was told that the State Department could not find the letter. Two weeks later, the Justice Department reported that the letter had been located, but since it was from a foreign government, the State Department's Freedom of Information Office had to review and respond to the request.

The State Department asked the British government if the release of the letter would be problematic. The British government said the letter was confidential and should not be released. So the State Department classified it.

Weatherhead sued to get the letter, and was granted summary judgment because the court said the letter was not properly classified.

The government moved to have that decision thrown out. They said that sensitive information could be released because the government couldn't say why it shouldn't be accessible, without saying what was in the letter that was sensitive. The district court agreed to reconsider the case, and, after reviewing the letter in camera, decided that the Justice Department did not have to turn over the letter.

The court said in its decision that is was ""unable to say why for the same reason the defendants were unable to say why."" It concluded that Weatherhead would have the ""solace of knowing that not only do two high ranking [Department and State] officers believe disclosure of the subject material injurious to the national interest, but so does an independent federal judge.""

A divided 9th Circuit Court of Appeals found in favor of Weatherhead. The majority opinion said since the lower court had an adequate factual basis on which to base its decision (it had the letter.), they would review the case based on the factual findings underlying its decision.

They found that the government had not proven that disclosure of the information could damage national security or described what that damage might be. The court said the letter is ""innocuous"" and granting the FOIA request ""could not reasonably 'be expected to result in damage to the national security.'""

The dissent stated that disclosure of information that is generally considered confidential between countries would hurt foreign relations. ""If the letter is released, Britain and other countries could well conclude that the [United States] cannot beed to protect confidential information.""

The U.S. Supreme Court granted certiorari on Sept. 10, 1999, but on Dec. 3, dismissed the case as moot. With Justice Antonin Scalia dissenting, the Court vacated the 9th Circuit's judgment and remanded the case with directions to order the district court to vacate its judgment too.

The case became moot, said Chuck Cooper, attorney for Leslie Weatherhead, ""because they gave up the document [the week before oral argument] so there's nothing left to fight about.""