Federal Agencies Need Not Confirm or Deny Electronic Surveillance under FOIA

The United States Court of Appeals for the Second Circuit affirmed that the National Security Agency and the Department of Justice do not need to confirm or deny the existence of electronic surveillance records under the Freedom of Information Act. The appellate court found that federal agencies are allowed to file “Glomar” responses, which were first judicially recognized in 1976 and grant an agency express refusal to even confirm or deny the existence of any records responsive to a FOIA request in the national security context.

The lawsuit was brought by advocates for former Guantanamo Bay detainees after the agencies invoked FOIA exceptions to information request regarding warrantless electronic surveillance conducted by the Terrorist Surveillance Program.

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In secret case, court rejects ‘total and permanent’ seal

The U.S. Court of Appeals in New York (United States Court of Appeals for the Second Circuit) last week rejected a request to permanently seal the entire transcript of a criminal defendant’s sentencing.

The appeal remains shrouded in secrecy, with court documents, the charges, the defendant’s name, and even the defense attorney’s name sealed. Prosecutors declined to provide any information about the case, citing the court’s sealing order.

But the appellate court’s Dec. 14 opinion makes clear that U.S. District Judge John Gleeson denied a criminal defendant’s “motion for total and permanent sealing of his sentencing transcript.” Both the defendant and prosecutors asked the appellate court to overturn the Gleeson’s order, and it appointed separate counsel “to defend the district court judgment so that the appeal could be considered in an adversarial context.”

Western federal courts can now videotape some trials

The body that oversees 15 western federal trial courts announced a pilot program yesterday that will allow the videotaping of some civil trials.

The Judicial Council of the Ninth Circuit – the governing body for all federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands – unanimously voted to allow the trial courts in those states to experiment with taping in civil cases tried without a jury.

Ninth Circuit Chief Judge Alex Kozinski explained the Council hoped “that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law.”