SCOTUS secrecy is reaching a crisis point

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF), and welcome to The Classifieds. Read on to learn about the week’s top secrecy news.

SCOTUS is too secretive. It doesn’t have to stay that way

The Supreme Court’s institutional secrecy is arguably the federal government’s most dangerous and overlooked transparency failure. It leaves the public in the dark about internal deliberations behind landmark rulings on topics like marriage equality, presidential immunity, and the fall of Roe v. Wade.

The heart of the problem is that the justices’ working papers are considered personal, not public, property, and the court lets individual justices decide what — if any — records they will make public, and when.

This is a stark departure from the executive branch, where the Presidential Records Act and Federal Records Act establish that official records belong to the public from the moment of creation. Even the legislative branch maintains preservation rules for committee and floor records.

The shortcomings of the court’s approach were made glaringly obvious when Justice Antonin Scalia died without leaving any archival instructions for his working papers, which can show how opinions and majorities form — and dissolve. While Justice Ruth Bader Ginsburg turned her papers over to the Library of Congress, she placed them under seal until every single justice serving alongside her was dead.

The secrecy around the Supreme Court’s working papers is compounded by three major crises:

The explosion of the shadow docket. Chief Justice John Roberts’ court increasingly resolves major legal questions through unsigned, unexplained emergency orders. These rulings now outnumber the court’s more formal full merits briefings and oral arguments, meaning that access to internal working papers is often the only way to see how consensus was reached.
No electronic records preservation requirements. Unlike the executive branch, there are no rules around what working papers justices must keep or who they must turn those papers over to for preservation, making it more likely they could be lost or destroyed. This is a particular concern for electronic messages, which can be more ephemeral than paper records.
No public disclosure requirements. The judicial branch, much like the legislative, is completely exempt from the Freedom of Information Act. While post-Watergate reformers tried to make judicial working papers public property after 15 years, lawmakers ultimately shelved the idea.

Justices argue the secrecy is necessary for their deliberations, but this is absurd.

It’s not plausible that nine of the brightest legal minds in the country can’t reach a reasonable compromise between fostering an efficient working environment and transparency.

Moreover, at a time when public faith in the high court is at an all-time low, shirking yet more transparency will do nothing to improve the court’s standing with the public.

Why we FOIA’d Treasury’s secret Venezuelan oil agreement

Two recent Wall Street Journal articles, published Aug. 29 and Aug. 31, shed light on the Trump administration’s efforts to firmly embed the U.S. government in the Venezuelan oil industry. The industry is rife with corruption, and makes a worrisome partner for an administration that has repeatedly proven eager to blur the lines between public and private ventures.

The public still lacks basic information about how this arrangement will work, or who will benefit. That’s why I filed a FOIA with the Treasury Department for the executed fiscal agreement establishing “foreign government deposit fund” accounts. These were created pursuant to January’s executive order that routed Venezuelan oil revenues into U.S. custody, effectively generating an unappropriated pool of capital controlled by the executive branch entirely outside of congressional oversight.

Once pried loose, this agreement should show how the fund reimburses private corporate partners, whether political appointees at the State or Defense departments have authority over portions of the funds, and much more about how the money actually moves through the federal government.

‘Still interested?’ You have 72 hours before the feds trash your FOIA request

Over a year ago, I submitted a FOIA request to the Army Corps of Engineers for records related to the Secret Service’s request to the corps to raise the water level of a lake to accommodate a kayaking trip for Vice President JD Vance.

On a recent Friday evening, the corps emailed me back. It wasn’t sending me the records; instead, it said if I still wanted the request processed, I had “to respond in 3 business day[s]” or the request would be closed.

A federal judge noted in a recent ruling that nothing in the FOIA authorizes closing requests over unanswered “still interested” letters, and Department of Justice guidance mandates giving requesters at least 30 days — not three.

If you’ve received an absurd “still interested” deadline, let us know.