Freedom of Information Comes at a $372,799 Cost
Dan Christensen, Law.com, Daily Business Review
01-31-2005

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A Washington public interest group's attempt to discover the extent to which the government has sought to hide legal proceedings involving immigrant detainees since Sept. 11 has been stymied by a huge, upfront tab for research.

People for the American Way Foundation has been told it must pay nearly $400,000 before the Department of Justice will process its Freedom of Information Act request. The general counsel for the group, which hopes to publish a public report about government secrecy efforts against hundreds of unidentified detainees, called the unusually large fee requirement "outrageous."

"The government should not be able to levy that kind of fee as a precondition for getting information," said Elliot Mincberg. "We regularly file these requests against not only the Department of Justice but other federal agencies, and we've never had a situation like this before. It's hard to reach any other conclusion than they're stonewalling."

Justice Department spokesman Charles Miller, however, said, "FOIA fees are all based on how much work goes into getting the records."

People for the American Way, a national civil rights and constitutional liberties organization, sued Justice last August in federal court in Washington after the department denied its initial FOIA request, made in November 2003. The group has said its request was prompted by the secret case of Deerfield Beach, Fla., resident Mohamed Kamel Bellahouel, an Algerian native and one of hundreds of men of Middle East origin who were detained without criminal charge by federal agents following the terrorist attacks on New York and Washington in 2001.

"The government's efforts to have this case sealed raises serious questions that should be promptly answered about how many other cases the government has sealed and turned into 'secret' proceedings," Mincberg wrote in the FOIA request letter.

On Jan. 11, two days before the government's deadline for explaining to the court why PFAW's lawsuit should be summarily denied, the assistant director of the Executive Office for United States Attorneys informed Mincberg that the department had changed its mind and would search for the requested records.

Marie A. O'Rourke told Mincberg that an "initial canvass of our 93 districts" led to an estimate search time of 13,314.25 hours. At $28 an hour, she said, "the search fee would be approximately $372,799. Please note that this does not include the search times estimated from 5 districts. At least one of those districts (Southern Florida) informed us that their search would require hundreds of hours. Therefore, this is an estimate."

The Southern District of Florida is where Bellahouel's habeas corpus case, filed while he was still in custody in January 2002, originated and proceeded in complete secrecy on orders of U.S. District Judge Paul C. Huck. A clerk's error at the 11th U.S. Circuit Court of Appeals in March 2003 briefly let Bellahouel's name surface, allowing the Daily Business Review to discover his case. To this day, though, Bellahouel's name appears nowhere on the Southern District's public docket.

With pro bono help from Arnold & Porter attorneys Robert N. Weiner and Lynn Y. Tran, PFAW has asked for records involving "any request by the government to seal the proceedings of a case in any federal court arising from or relating to the detention of a post 9/11 immigrant detainee." Also sought are copies of any pleadings filed in support of requests to seal, which the PFAW suggested could be redacted if necessary to omit names.

Meredith Fuchs, general counsel to the National Security Archive, a nonprofit research institute and public interest law firm in Washington, said the Justice Department's large fee request was "extremely unusual."

"I've heard of requiring $30,000 or $50,000 from commercial requestors, but a requirement like this is designed to discourage People for the American Way from making their request," Fuchs said.

David L. Sobel, general counsel for the Electronic Privacy Information Center, another Washington public interest group, agreed that the government's fee demand was unusually high.

"All agency FOIA offices know that they have available to them a range of obstacles that they can throw up and fees are certainly on that list," said Sobel, who has litigated many FOIA cases. "We have learned over the years that if left to their own discretion, agencies will do anything they can to frustrate requests."

Justice Department spokesman Miller said he had no idea where the fee stacks up, compared with past FOIA fee requirements.

Last year, People for the American Way joined a coalition of 23 media, law and public interest organizations -- including the New York Times and American Lawyer Media, the Daily Business Review's parent -- that unsuccessfully sought to formally intervene in Bellahouel's heavily censored case then before the Supreme Court for possible review. The coalition was formed by the Arlington, Va.-based Reporters Committee for Freedom of the Press. Bellahouel, a Delray Beach waiter, was detained by FBI agents for overstaying his student visa after they learned he'd probably served food to some of the hijackers and may have been seen going into a movie theater with a hijacker.

He sued the government while being held under indefinite detention at the Krome Detention Center in southwestern Miami-Dade County. His attorneys at the Federal Public Defender's Office in Miami challenged the constitutionality of his detention. Such cases are normally open to the public, but Huck sealed Bellahouel's civil habeas case from the outset. The secrecy was so complete that the case's very existence was hidden and kept off the public docket.

Bellahouel spent five months in custody during which time he was transported to Alexandria, Va., to testify before the grand jury that indicted accused Sept. 11 co-conspirator Zacarias Moussaoui. He was released around March 1, 2002, without any criminal charge. But his habeas case proceeded under a veil for another year until it was mistakenly, and briefly, docketed at the appellate court in Miami.

Like the district court, the 11th Circuit issued rulings in the case that remain secret. Bellahouel's appeal to the U.S. Supreme Court, styled M.K.B. v. Warden, opened up the case a bit, but the briefs filed by Supervisory Federal Public Defender Paul M. Rashkind were heavily redacted to comply with lower court gag orders. The government's filings were all under seal.

People for the American Way sent its FOIA letter to the Justice Department while M.K.B. was pending. The government declined to disclose any information, citing federal privacy exemptions, then denied an appeal. PFAW's Aug. 23 lawsuit alleged the records were being improperly withheld.

This month, however, a team of government lawyers, led by Assistant Attorney General Peter D. Keisler and trial attorney Marcia Berman, unexpectedly told the court that Justice had reconsidered the FOIA request. The government now understood from the complaint that PFAW's "primary interest" was in obtaining statistical data, not the names of individual detainees, they said.

PFAW has until Feb. 10 to respond to the fee letter. The DOJ lawyers have asked U.S. District Judge John D. Bates to hold a hearing the week of March 14.

The estimated high cost of conducting a nationwide, manual search that Justice officials say is necessary to comply is apparently the result of inadequate recordkeeping by the government. In a statement submitted to the court this month, Justice attorney John W. Kornmeier said a database search would be fruitless because even though government computers have "fields" to record and categorize some data "the requester seeks, those fields are not mandatory."

But attorneys on the outside aren't buying the explanation.

"To say it would take hundreds of thousands of dollars to look for something that should be obvious in any U.S. attorney's office -- cases that are filed under seal -- is very difficult to credit," Mincberg said.

"I just don't believe that records aren't kept," Fuchs said. "To seek a secret prosecution must require some sort of documentation in the Justice Department."