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NATION MAGAZINE v. DEPARTMENT OF STATE

October 23, 1992

THE NATION MAGAZINE, et al., Plaintiffs,
v.
DEPARTMENT OF STATE, et al., Defendants.



The opinion of the court was delivered by: JOYCE HENS GREEN

 Plaintiffs The Nation magazine and Max Holland, a contributing editor to The Nation, commenced this action on October 14, 1992 by filing a complaint which alleges that defendants have violated the Freedom of Information Act ("FOIA"), the Administrative Procedure Act ("APA"), and the First Amendment by denying expedited access to federal records concerning independent Presidential candidate H. Ross Perot even though, according to plaintiffs, expedited access to records concerning Democratic Presidential candidate Bill Clinton had been granted. On Friday, October 16, 1992, plaintiffs filed a motion for a temporary restraining order. With the consent of counsel, a briefing schedule for the motion was set and a hearing scheduled for October 20, 1992. Plaintiffs' counsel were ordered to notify H. Ross Perot, the subject of plaintiffs' FOIA requests, or his counsel, of this action and of the hearing. On October 22, 1992, two days after the hearing, plaintiffs filed as an additional exhibit to their motion for a temporary restraining order an article from that day's Washington Post concerning relevant State Department activities. The government filed a brief response thereto. Upon consideration of all filings made in this case and of the arguments made at the hearing, plaintiffs' motion for a temporary restraining order is denied.

 BACKGROUND

 By separate letters dated June 22, 1992, plaintiff Max Holland asked the Central Intelligence Agency ("CIA"), the Department of Justice ("DOJ"), the Department of Defense ("DOD"), and the Department of State to release certain documents concerning H. Ross Perot. At the time of the request, Mr. Perot was an independent candidate for President and enjoyed popular support of a magnitude apparently not possessed by any previous independent Presidential candidate in recent history. *fn1" The Nation had written extensively about Perot and was "eager to include additional articles . . . to contribute to ongoing public debate about his qualifications to become President of the United States." Plaintiffs' Motion for a Temporary Restraining Order at 2.

 The CIA's first response to Holland's FOIA request was a letter dated August 7, 1992 which requested that he furnish a notarized statement from Mr. Perot authorizing the release of personal information. Holland informed the CIA on August 24, 1992 that he could not provide such a release but indicated his belief that any privacy exemption should be applied sparingly in light of Mr. Perot's national prominence, and requested release of all documents not exempt on grounds of privacy. Not having received a response to his August 24, 1992 letter, Holland hand-delivered to the CIA on October 8, 1992 a request for expedited processing in which he asserted an urgent need for access to Perot documents in light of the upcoming Presidential election, to be held November 3, 1992. By letter dated October 9, 1992, the CIA informed Holland that it would not expedite his request, stating that it granted requests for expedition only in the rare instances where health and humanitarian considerations create circumstances of exceptional urgency and extraordinary need and that his request did not satisfy those criteria.

 The DOD advised Holland in a letter dated July 13, 1992 that a search of the files of the Office of Deputy Assistant Secretary of Defense for POW/MIA Affairs revealed no responsive records and informed him that his request had been forwarded to the Defense Investigative Service ("DIS") and the Defense Intelligence Agency ("DIA"). At a time unknown to the Court, DIS indicated that it possessed documents responsive to Holland's request but advised him that because of applicable privacy exemptions, it would not release any records pertaining to Mr. Perot without proper authorization. On October 8, 1992, Holland told DIS that he could not obtain Mr. Perot's consent to release of the documents and requested expedited processing of his request for all non-exempt segregable records in light of the imminent election.

 The Department of State initially responded to Holland's request by sending a letter on July 1, 1992, informing him of its need to know whether he intended to pay processing fees before it could provide him with the requested records. Holland responded on July 9, 1992 by stating that The Nation agreed to pay the cost of reproducing documents retrieved as a result of his request, but that the magazine reserved the right to demand a waiver of all processing fees depending on the nature of the documents obtained. Not having received any further response from the Department, Holland sent by messenger a request for expedited processing. In his request, Holland stated his belief that the news media had been provided expedited access to Mr. Clinton's passport records and asserted that the agency should not withhold similar types of records relating to Mr. Perot. Counsel for Mr. Holland related to the Department that Mr. Holland would consider the failure to respond by October 13, 1992 to his request for expedition a denial of the request and would cause Holland to seek immediate judicial review. The Department did not respond by the 13th and plaintiffs commenced this action the next day.

 In September or October, 1992, a time when rumors were circulating among the national press that Democratic candidate Bill Clinton may have sought to renounce his United States citizenship to avoid military service in the Vietnam War, and a time when campaign activities were becoming more intense, State Department agents expedited the processing of three FOIA requests concerning Governor Clinton's draft status, his student visas, and his citizenship. See Declaration of Frank M. Machak, the State Department's Information and Privacy Coordinator and Director of the Department's Office of Freedom of Information, Privacy, and Classification Review, attached to defendants' Memorandum in Opposition to Plaintiffs' Motion for a Temporary Restraining Order. Those requests, filed by ABC News, the Associated Press, and Hearst Newspapers, were made months after plaintiffs made their requests for Perot-related documents. When questioned about the propriety of expediting the processing of the Clinton requests, State Department spokesman Richard Boucher initially defended the Department's actions, stating on October 14, 1992, "You're all aware of the time limits in the law that do require [the processing of the Clinton requests] to be -- expeditiously, and I don't feel comfortable thinking that I should come up here and apologize for people trying to have met the law." Exhibit W to plaintiffs' Motion for a Temporary Restraining Order at 5. Mr. Boucher further stated, "Obviously we're aware of the fact that journalists are asking for [the Clinton information] and they obviously don't want to get it in March." Id. at 7. Notwithstanding these statements, however, the State Department did not expedite the processing of numerous other FOIA requests for documents concerning President Bush, Vice President Quayle, Senator Gore, Mr. Perot, and Admiral Stockdale, including the requests made by the plaintiffs. Declaration of Frank M. Machak at 24. *fn2"

 In a press conference held October 15, 1992, Mr. Boucher changed his position on the propriety of the expedited actions and acknowledged that the treatment given to the Clinton-related requests was wrong and contrary to State Department policy and law. Exhibit 7 to Declaration of Frank M. Machak. Mr. Boucher stated that the notations made on internal memoranda ordering expedition of the Clinton requests were "clearly a mistake" and were made by "clerks -- mid-level people who process applications, who take papers and write memos and send them on," Exhibit 7 to Declaration of Frank M. Machak at 4.

 At the hearing on the motion for a temporary restraining order, government counsel vehemently represented that although the initial processing of the Clinton requests was mistakenly expedited, the mistakes were discovered before any responsive documents were made available. Counsel further represented that the State Department "de-expedited" the three Clinton requests by returning them to their proper position in the queue and processing them on a first-in, first-out basis, like all other State Department FOIA requests. Accordingly, counsel contends that no disparity between the Clinton and Perot requests has resulted from the State Department's alleged blunders. Much to the detriment of a complete record in this case and, therefore, to the Court's frustration, counsel for the defendants refused to report, upon inquiry of the Court, when the decisions to expedite were made, whether they were made by high-level or low-level officials, and whether they were the result of policy or administrative carelessness. Counsel stated she could not respond to the Court's questions on this matter because Acting Secretary of State Lawrence S. Eagleburger has called for the Inspector General to investigate the matter. *fn3" As a result, the Court is uninformed of the time-frames for the completion of the Inspector General's investigation and for the reporting of the findings and conclusions resulting from the investigation.

 Plaintiffs' counsel fervently challenged the veracity of the claims of Mr. Boucher and Mr. Machak that the expedited processing was the result of mistakes made by a mid-level or low-level clerks. Counsel contended that the Department's expeditious treatment of three separate FOIA requests concerning only Governor Clinton and relating only to that candidate's draft status, citizenship, and student visa status indicated that the decision to expedite was the result of a policy set by high-level officials. In support of that contention, plaintiffs' counsel filed on October 22, 1992 an article from that morning's Washington Post which reported that the Chief of Program Support Services for the Department's Office of Passport Services, the Acting Deputy Assistant Secretary for Passport Services, and a political appointee working for the Assistant Secretary for Consular Affairs expedited the processing of FOIA requests concerning Governor Clinton and his mother and, with National Archives employees, personally searched boxes of documents stored at the National Records Center in Suitland, Maryland. The article indicated that the search was not related to the three FOIA requests which the State Department has admitted expediting. When given the opportunity to respond to the allegations made in the Post, government counsel called the article "irrelevant" hearsay and stated:

 the State Department is not yet in a position to advise the Court about the precise facts surrounding the temporary expedition of three FOIA requests seeking information on Governor Bill Clinton. In order to establish the facts, as well as to determine whether there was any misconduct, Secretary Eagleburger ...


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