Gladys Kessler
When the government processes a public records request and discloses information, the person or group that asked for the documents is generally free to share them with the world. Documents are posted to websites. News releases are distributed. People talk.
But that might not happen in a pending case in Washington's federal trial court. The U.S. Justice Department is advocating for a protective order and a "claw back" agreement that would block an advocacy group—at least temporarily—from revealing any information from the Department of Homeland Security hands over.
And the clawback component? That would permit the government to take back a document that was previously disclosed to the advocacy group Electronic Privacy Information Center, the plaintiff in the case.
At a hearing Jan. 7 in Washington, DOJ lawyer Lisa Marcus described the provisions—rare if not unprecedented in the context of Freedom of Information Act litigation—as a "safety net" for the government in the event that classified information is unintentionally disclosed to the privacy center.
EPIC in March 2012 sued DHS for information about a cybersecurity program that the government set up to help minimize attacks against defense contractors. The Washington Post published an article about the program in 2011.
Specifically, the advocacy group asked for, among other things, contracts and communication between DHS and major defense contractors; analysis and legal memos about the pilot program; and any privacy assessment that was performed in the development of the program.
The challengers said their goal is to determine "whether a particular cybersecurity strategy may run afoul" of communications privacy laws.
"The timely release of information responsive to EPIC's FOIA request is vital to inform the public about a timely matter of profound national concern that is pending" in Congress and the White House, the challengers said in November.
DOJ said last month that the government has reviewed more than 2,000 pages of documents. Some of the information is classified. Other documents are not. Thousands of more potentially responsive documents must still be reviewed. As of today, the government hasn't turned over a single page to the challengers.
Marcus, a lawyer in the federal programs branch of DOJ's Civil Division, in court Monday called the case "extraordinarily difficult" based on the number of federal agencies that must review documents, the number of pages themselves and the sensitivity of the information.
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