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Thursday, November 11, 2010

MFIA and New York Times Win FOIA Case; Ruling Clarifies Law Surrounding Personal Privacy Exemption

Yale Law School’s Media Freedom and Information Access Practicum (MFIA) and The New York Times prevailed in a New York Federal District Court last month when a Magistrate Judge granted a motion for summary judgment in a Freedom of Information Act (FOIA) suit. MFIA had worked with The Times’ legal department in drafting the motion and reply.

The case involved a Freedom of Information Act request made by The New York Times to the U.S. Treasury Department, seeking the names of companies and individuals that have been licensed by Treasury to conduct business with or in sanctioned nations like Iran and North Korea.

“Our partnership with MFIA was invaluable in this case,” said David McCraw, Vice President and Assistant General Counsel for The New York Times Company. “Privacy cases are particularly difficult in FOIA, and the case law is inconsistent and contradictory. The MFIA students managed to distill from those decisions a powerful legal argument that neutralized the government’s case and advanced our case for transparency.”

Through an earlier suit, The Times had won access to the names of the licensed corporations, but Treasury continued to resist identifying individual licensees, claiming disclosure would constitute an unwarranted invasion of privacy. MFIA members Margot Kaminski ’10, Stephen Gikow ’11, Jennifer Jones ’11, and Jeremy Kutner ’12 helped The Times draft its complaint, motion for summary judgment, and reply to the government’s cross-motion, arguing for disclosure of the individual licensees’ information.

On October 13, 2010, Magistrate Judge Frank Maas of the Southern District of New York granted The Times’ motion for summary judgment and ruled that Treasury must disclose the names of the individual licensees. In so ruling, Judge Maas considered the values implicated by the privacy exemption to FOIA—namely, the privacy interest of the licensees in keeping the information secret and the public interest in disclosure.

Though Judge Maas found the privacy interest in the names of the individual licensees to be more than a de minimis interest, he characterized Treasury’s arguments about the harms that could result from disclosure as “entirely speculative.” He agreed with The Times’ and MFIA’s arguments that the large number of names on the list and the voluntary nature of the individuals’ association with the government resulted in only a “fairly minimal” privacy interest. He then found this interest to be outweighed by the public interest in disclosure, adopting The Times’ and MFIA’s position that disclosure was not premised on an impermissible derivative use—which occurs when one party seeks information from the government only to follow up and obtain other information through subsequent reporting. The Judge also agreed that the process of government decision making could only be monitored through disclosure of the names.

“This decision represents a significant win for proponents of open government, as it requires the government to substantiate its claim of harm resulting from disclosure with a higher degree of certainty and clarifies the limitations on government claims of derivative use,” said Jennifer Jones, one of MFIA’s student directors. “It’s great that we were able to follow up our victory in New York state court this summer with this decision.”

MFIA is currently assisting The Times with another FOIA matter and will also continue to assist with this case if the Treasury Department appeals it to the Second Circuit.

MFIA, an initiative of the Information Society Project and the Knight Law & Media Program at Yale Law School, was founded by four Yale Law School students to defend the public’s right of access to government information and to support traditional and emerging forms of newsgathering. Through MFIA, Yale Law students work under the supervision of veteran media attorneys who volunteer their time pro bono on cases where private actors lack the resources to prosecute the public’s access rights.