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SPJ Helps Win Freedom of Information Case in Oregon


Contacts: Ray Marcano, SPJ President, 937/225-2323 or rmarcano@spj.org; Ian Marquand, SPJ Freedom of Information Committee chairman, 406/542-4400 or ian@kpax.com; Bruce Brown, SPJ First Amendment legal counsel, 202/861-1500 or bbrown@baker-hostetler.com

INDIANAPOLIS — The Society of Professional Journalists and other journalism organizations have helped secure access to information involving a water dispute in Oregon’s Klamath Basin.

The U.S. Supreme Court unanimously ruled Monday that the Department of the Interior cannot withhold public access to communications it receives from Indian Tribes that the Department deemed "consultants" on the water project. The Court stated that such communications did not meet the necessary requirements for a Freedom of Information Act exemption, as the Department had claimed.

"I’m delighted in the court’s opinion, especially since it states clearly and unanimously that the Freedom of Information Act is intended for broad disclosure, while its exemptions are given ‘narrow compass,’ " said Ian Marquand, SPJ Freedom of Information Committee chairman and special projects coordinator for KPAX-TV in Montana. "As Justice Souter noted in the opinion, Exemption 5 is not designed purely to protect government secrecy. If only government agencies would take that concept to heart regarding all of FOIA’s exemptions and, for that matter, all federal and state laws requiring public access to information."

SPJ, the Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors in December submitted to the Court a friend-of-the-court legal brief on the case, United States Department of the Interior vs. Klamath Water Users Protection Association. In the brief, which was drafted by the Reporters Committee, the organizations asked the Supreme Court Justices to uphold an appeals court decision that limited when government agencies can withhold internal documents from the public and press by claiming Exemption 5 under the FOI Act. This exemption protects from disclosure "intra-agency" or "inter-agency" documents that would normally be privileged from discovery in a legal proceeding.

The case stems from a 1995 incident in which the Klamath Basin Tribes and the Klamath Water Users Protective Association, a non-profit group composed primarily of local irrigation districts and other water users, corresponded with the Department of the Interior stating their positions on water allocation in the Klamath Basin of Oregon.

Both groups submitted FOIA requests asking to view the other organization’s correspondence with the Department. The Klamath Basin Tribes were allowed access to the association’s correspondence, but the association was not allowed to view the Tribes’ correspondence. The Tribes had signed an agreement with the Department in which they were labeled "consultants" in the project. The association signed no such agreement.

The Klamath Water Users Protective Association sued the Department of the Interior, claiming it violated the Freedom of Information Act. The U.S. Court of Appeals rejected the Department’s claim that the correspondence it refused to release was protected under Exemption 5 of the FOI Act.

The U.S. Supreme Court unanimously concurred Monday. The justices limited their decision to the fact that the Tribes were not disinterested experts but had a real stake in the dispute, making them unlike typical consultants to the government.

"The Court’s action was appropriate as far as it went, and it was reassuring to see the Justices reaffirm FOIA’s mandate for broad disclosure," said Bruce Brown, of Baker & Hostetler, SPJ’s First Amendment legal counsel in Washington, D.C. "We would have liked to see the Court go further here, however, and look more closely at the overall practice of permitting outside consultants to have their communications shielded under Exemption 5."

For the complete text of the U.S. Supreme Court’s ruling, go to www.supremecourtus.gov/opinions/00pdf/99-1871.pdf.

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