Open Government Advocacy Strategies

1. Open Government Advocacy Strategies Meredith Fuchs General Counsel National Security Archive Washington DC USA

2. Identifying Cases Worth Litigating • Examine Possible Goals: • Reveal important documents. • Change agency practice or policy that affects all FOIA requesters. • Educate the public. • Attack specific secrecy practices. • Resolve conflicts in the law/move the law. • Prove you are willing to litigate/establish bonafides with the agency.

3. Evaluating cases for litigation • Is there a lawyer available to litigate it? • What is the likelihood of success? • What is the worst possible impact of failure? What do you do with bad law? • Can you get news media attention? • Can you get amicus curiae support? • In what forum/jurisdiction can it be pursued? • When should it be filed?

4. Challenges in Strategic Litigation • Conflicts between opportunities in the individual case and long term goals. • Turf battles between non-governmental organizations. Coordination in multi-party cases. • Seeking advice about pursuit of a case from the right people. • Being aware of important cases brought by others. • Using precedents from other jurisdictions (other countries, regional tribunals, etc.).

5. Specific Challenges in National Security Cases • Are there creative ways to increase judicial scrutiny? • Vaughn Index – detailed list of records and reasons for non-disclosure. • In Camera Review. • Special Masters. • Declarations from former officials. • Exposing over-classification (e.g., silly secrets, reclassification of open records). • Exposure of scandals hidden by classification (e.g. Abu Ghraib).

6. Litigation cooperation and information sharing • E.g. Freedom of Information Litigators Group (FOIL) • Meetings of non governmental organizations with diverse substantive missions to: • generate ideas about possible/important issues to litigate, • discuss case strategy, • learn lessons, • evaluate impact of legislative or regulatory changes on litigation, • discuss which cases should be pursued at the appellate level, and • provide amicus curiae support.

7. Anti-Secrecy Coalition With Rapid Reaction Capability • E.g., openthegovernment.org • Wide range of organizations including those that do not litigate. • Broad political spectrum. • Representing national state and local interests. • Coordinator with the ability to communicate issues to the coalition, organize strategy sessions, and manage group sign on letters on secrecy issues. • Recent activities – Opposition to records policies concerning Guantanamo case files, support for FOIA reform legislation. “Outing” secrecy senator.

8. News Media Contacts • Reporters with the secrecy “beat.” • Editorials on secrecy issues. • Coordination with news media coalitions who are willing to advocate for open government. • Sunshine Week.

9. Open Government Audits • Exposing real facts about FOIA policy and administration: • Ten Oldest FOIAs • Electronic FOIA Compliance/Agency Web sites • Sensitive But Unclassified information policies • Department of Justice FOIA litigation policy • Helps identify structural or broad issues worth litigating. Also sometimes moves policy. • Pattern and Practice cases • E-FOIA cases possible • FOIA reform legislation

10. Training Agency FOIA Personnel • American Society of Access Professionals (ASAP). • Identify who is responsible for training, attend meetings. • Present FOIA requester perspective.

11. Other Important Contacts • Identify academics who can study and publish articles about FOIA policy, legal and statistical issues. • Educate private lawyers, provide training, ask for pro bono legal assistance, put on programs to attract their attention. • Get business interests to support transparency and efficiency in government.

12. Contact me at any time: Meredith Fuchs, General Counsel National Security Archive George Washington University Gelman Library Suite 701 2130 H street, NW Washington DC 20037 202-994-7000 mfuchs@gwu.edu