On March 24 I filed a FOIA request for motions and responses filed in the courts-martial of Petty Officers McCabe, Keefe and Huertas (the SEAL courts-martial in Norfolk). Today Commander, Navy Region Mid-Atlantic (CNRMA) informed me that they were withholding all my requested information because the courts-martial are not final, no other reason given.

To be honest I am stunned given the Navy’s prior release of the charge sheets in this case (here), discussion of the documents in open court, intense media coverage and public interest, and, well, the fact that they are court filings. When CNRMA sends the denial letter, which I requested expeditiously since the first trial begins April 19, I will update this post and link to the letter.

Found this from the Marine Corps, here, while putting togetjer an appeal email, “Court-martial proceedings are generally open to the public and media. Thus, information concerning action taken in open court, the results of court proceedings, and subsequent actions, such as clemency and appellate review, are not generally protected by the PA. Accordingly, such information may usually be released. Additionally, a written FOIA request is not needed prior to release of such information.”

12 Responses to “SEAL Case FOIA: Apparently Transparency Has Not Trickled Down I-95 to Norfolk”

  1. Anonymous says:

    Old memory cells here but if I recall, guidance from OJAG in the past is that records of trial are not ripe for FOIA release until CM and follow on review is complete.

  2. Cloudesley Shovell says:

    Fascinating. Under the “not yet final” theory, nobody gets to see anything until there’s either a full acquittal or appellate review is complete. And meanwhile, one can walk into any regular court or bankruptcy court and get copies of pretty much anything you want from any case.

    One wonders, did the brilliant legal analysts who handled your FOIA request cite to any particular provision of FOIA, or did they rely on the double-secret-probation part of it that permits just making stuff up. Too bad 18 USC 1001 doesn’t work both ways.

  3. Ed White says:

    It is not directly on point vis-a-vis COL Sullivan’s FIOA request to CNRMA for copies of the written motions in the pending SEAL courts-martial, but anyone interested in the way FOIA and the Privacy Act work when applied to court-martial records should look at Dayton Newspapers, Inc. v. Dep’t of the Navy, 1997 US Dist. Lexis 23789 (S.D. Ohio 1997). It deals with FOIA requests for various records of trial (ROTs) in completed court-martial cases, from which various documents were withheld and various items of information redacted.

  4. Cap'n Crunch says:

    IIRC, there is a provision in FOIA that gives you your attorney fees for a wrongfully withheld request. Maybe a follow up letter. Of course, you have to exhaust administrative remedies, and by the time that happens, the FOIA request might be moot.

  5. Dwight Sullivan says:

    CAPT White, thanks for the cite. But the No Man gets all the credit for this FOIA request.

  6. Mike "No Man" Navarre says:

    Note by the way it is the second story today with a Dayton connection, that ain’t the Daytona Daily News.

  7. Anonymous says:

    Let me throw this out there for discussion – is it really a bad thing to allow a CM to mature until completion before pieces-parts of the record trickle into the public domain? The public’s interest in transparency is still satisifed when the case is completed and sensitive court documents are not circulating through the public domain before the case is resolved, thereby minimizing risk of panel contamination.

  8. Peter E. Brownback III says:

    I would appreciate some background information on this matter, but I’ll give you my thoughts regardless.

    1. Did you really want to see/read the motions and responses, or were you just trying to make a point?
    2. Did you ask the MJ? The court reporter? Whoever provides support to the MJ? The PAO?
    3. Did you ask the counsel for copies of their motions and responses?
    4. Is the MJ known for refusing to release any information until the record is authenticated?
    5. My real question is what prompted you to file a FOIA request? That seems to me to be the slowest method possible to get information from the government.

    I am not a FOIA expert. Nor have I kept current with the changes in FOIA law. If you have a federal case which requires that portions of a record of trial be released prior to authentication, I would be glad to read it.

    Absent that, it would seem that a record of trial is not a record until the MJ authenticates it (Article 54). A motion and/or response is not a record in and of itself – it is part of what will be a record.

    Many MJs differ in their approaches to releasing information. Some are give everyone everything (Ferd Clervi in McKinney). Some are give nobody nothing until authentication (me). Most don’t have any philosophy because it never becomes an issue.

    Is there a reason for this? Well, some MJs just have a great distaste for the press. However, there are many instances in which the MJ is attempting to prevent information from getting to the prospective panel members.

    To be clear, I do NOT agree that the ROT may not be released until it is final – I believe that it is a record under FOIA after authentication. You should also note that I firmly believe that the counsel can put out whatever they want. If they want the press to read the brilliant motion and/or reponse, they can give it to the press. However, they do not have the authority to fax a copy of AE XXVII – because that document (even if the counsel sent it in twenty minutes before) is now going to become part of the record of trial.

  9. Dwight Sullivan says:

    I don’t see any basis in law for the Department of the Navy to fail to turn over responsive documents within the RLSO’s possession within FOIA’s time limits. The motions and responses certainly don’t fall within any of FOIA’s 9 exemptions. Nor do they fall within any of its 3 exclusions. So as long as the documents are agency records, they must be produced. The Supremes have interpreted the phrase to include records that were either “created” or “obtained” by an agency subject to FOIA. The motions and responses were either created or received by Department of the Navy prosecutors, thereby falling within FOIA. Obviously those motions qualify as “records” for FOIA purposes. As the United States District Court for the District of Columbia has observed: “Although Congress failed to define agency records in the FOIA, it did provide definitions in these statutes. While these definitions are not dispositive of the proper interpretation of the term under the FOIA, the Court of Appeals for this Circuit has specifically noted the relevance of the definition of agency records provided in the Federal Records Management Act to document status disputes under the FOIA. Bureau of National Affairs, 742 F.2d at 1493. The applicable definition of ‘records’ provided by the Federal Records Management Act, 44 U.S.C. § 3301 defines ‘records’ as including:

    “all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transactions of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.

    “44 U.S.C. § 3301 (emphasis added).”

    Washington Post v. U.S. Dep’t of State, 632 F.Supp. 607, 615 (D.D.C. 1986).

    Even if those individual motions and responses later become part of a record of trial, nothing in FOIA — or any case law interpreting FOIA that I’ve found — would exempt copies of those documents in the RLSO’s possession from being considered agency records at the time they are requested.

    President Obama has directed that “[a]ll agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.” It is difficult to see how a decision to deny the No Man’s FOIA request comports with that guidance from the Commander in Chief.

    FOIA doesn’t include an exception for motoins in an ongoing court proceeding. If those motions had been filed in any U.S. District Court in the land, I could access them from my computer right here at Casa CAAFlog. And if they had been filed in a Maryland state court, I could get them from the Clerk of Court’s office. The civilians don’t worry that ongoing judicial proceedings will somehow be prejudiced by allowing members of the public to see court filings from the case; there’s no reason that the military should either.

    The SEALs cases have received a great deal of coverage, including many reports that SO2 McCabe passed a privately administered polygraph examination in which he denied striking Abed. The notion that justice will be compromised by releasing a copy of a written motion that has already been discussed in open court seems farfetched.

    I’m looking forward to seeing how the Navy attempts to justify its denial of the No Man’s FOIA request.

  10. Peter E. Brownback III says:

    1. A significant difference between judges and counsel is that most judges want to get something accomplished, rather than arguing about the law.

    (Note – paragraph 9 was moved to second position in case it actually happens to solve the discussion. This will keep you from having to grind your teeth as you go thru the rest.) 9. Finally, perhaps we are speaking past each other. Your first sentence seems to imply that the motions and responses are under the control of the RLSO. That may well be the practice in the naval services, but it certainly is not the practice within the Army. The MJ controls the evidence and exhibits in a court-martial, not the SJA.

    2. Please look again at the questions I asked to start my comment. I still do not know the answer to those questions. If you wanted copies of motions, would you ask the SJA or the MJ or the counsel? The idea of submitting a FOIA request would never come to my mind.

    3. Please look again at my question about court cases. Your response did not tell me whether or not there is a case on point. If not, then 45 years of no action by the courts in the area leads me to believe that your legal argument is not as strong as you might wish.

    4. I agree that all military personnel should follow the dictates of the President. As does the President in the excerpt you quote, I use the term “should” rather than the term “must”.

    5. You make two rather broad comments:

    a. “The civilians don’t worry that ongoing judicial proceedings will somehow be prejudiced by allowing members of the public to see court filings from the case; there’s no reason that the military should either.”

    b. “The notion that justice will be compromised by releasing a copy of a written motion that has already been discussed in open court seems farfetched.”

    6. I have no great desire to enter into a philosophical discussion on these matters, but

    a. The military justice system is not a civilian system.

    b. In 1996, I received a motion to suppress certain statements allegedly made by SGT Kreutzer. These statements were highly inflammatory and certainly grossly prejudicial. The motion was argued in open court by reference to paragraphs in the motion which contained the time-place-witness-statement. The press was aggravated, you would have been aggravated, but the possibility of compromise was not farfetched.

    7. I am further quite concerned by your willingness to have non-judicial parties tell a military judge what he is to release and when. That certainly does not seem to comport with the need for an independent judiciary – which we have.

    8. As for the basic law, I do not intend to argue it with anyone. I’m quite happy with 18 USC 854 and
    “(2) Each agency, in accordance with published rules, shall make available for public inspection and copying–
    (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;”
    I’m pleased that I was able to get your brain cells moving on a Wednesday night. Being retired, I waited until this morning to respond.

  11. Mike "No Man" Navarre says:

    1. A significant difference between judges and counsel is that most judges want to get something accomplished, rather than arguing about the law.

    A: So why won’t the judges just give me the papers? As of now my informal request to them is still pending, but the initial response was file a FOIA request.

    (Note – paragraph 9 was moved to second position in case it actually happens to solve the discussion. This will keep you from having to grind your teeth as you go thru the rest.) 9. Finally, perhaps we are speaking past each other. Your first sentence seems to imply that the motions and responses are under the control of the RLSO. That may well be the practice in the naval services, but it certainly is not the practice within the Army. The MJ controls the evidence and exhibits in a court-martial, not the SJA.

    A: Judge Brownback, with all due respect, I think you are missing the point of FOIA which is that an agency must produce documents within its control. If any agency has a copy than it is under the agency’s control. The RLSO controls the TC, who in fact drafted and field some of the papers we are asking for and was served with copies of others. Why can’t I have the TC’s file of stuff that has already been discussed in open court?

    2. Please look again at the questions I asked to start my comment. I still do not know the answer to those questions. If you wanted copies of motions, would you ask the SJA or the MJ or the counsel? The idea of submitting a FOIA request would never come to my mind.

    A: We have asked just about every player (other than defense counsel–who we have assumed have an interest in not providing this stuff to us–if they don’t, please email me at noman@caaflog.com). They all told us to submit a FOIA request.

    3. Please look again at my question about court cases. Your response did not tell me whether or not there is a case on point. If not, then 45 years of no action by the courts in the area leads me to believe that your legal argument is not as strong as you might wish.

    A: Possible reason there are no court cases: usually the military is not so stubborn as to withhold all court papers. In the Dayton Newspapers case the military released the transcripts and other information.

    4. I agree that all military personnel should follow the dictates of the President. As does the President in the excerpt you quote, I use the term “should” rather than the term “must”.

    5. You make two rather broad comments:

    a. “The civilians don’t worry that ongoing judicial proceedings will somehow be prejudiced by allowing members of the public to see court filings from the case; there’s no reason that the military should either.”

    b. “The notion that justice will be compromised by releasing a copy of a written motion that has already been discussed in open court seems farfetched.”

    6. I have no great desire to enter into a philosophical discussion on these matters, but

    a. The military justice system is not a civilian system.

    b. In 1996, I received a motion to suppress certain statements allegedly made by SGT Kreutzer. These statements were highly inflammatory and certainly grossly prejudicial. The motion was argued in open court by reference to paragraphs in the motion which contained the time-place-witness-statement. The press was aggravated, you would have been aggravated, but the possibility of compromise was not farfetched.

    A: Wouldn’t redaction, not withholding due to “non-finality” be the answer to that issue? And in this case I don’t see that issue–i.e.. the issue is judged on a case by case basis, not a blanket withholding.

    7. I am further quite concerned by your willingness to have non-judicial parties tell a military judge what he is to release and when. That certainly does not seem to comport with the need for an independent judiciary – which we have.

    A: Take that up with the FOIA drafters, not me. And if the judge wants control, release the stuff themselves.

    8. As for the basic law, I do not intend to argue it with anyone. I’m quite happy with 18 USC 854 and
    “(2) Each agency, in accordance with published rules, shall make available for public inspection and copying–
    (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;”
    I’m pleased that I was able to get your brain cells moving on a Wednesday night. Being retired, I waited until this morning to respond.

    Glad to have discussed it with you Judge. Please comment anytime!

  12. Dwight Sullivan says:

    FOIA’s definition of “agency” excludes “the courts of the United States.” See 5 U.S.C. 551(1)(B). I’m not sure whether that phrase encompasses courts-martial or not. But to avoid the issue, I spoke about obtaining documents in the trial counsel’s possession — documents that are certainly agency records for FOIA purposes. I’m perplexed by COL Brownback’s statement that he is “quite concerned by your willingness to have non-judicial parties tell a military judge what he is to release and when.” My post didn’t even mention military judges. I don’t care about miltiary judges. I’m not trying to make them do anything. Congress said that agencies have to turn over records upon request unless they fall within one of 9 statutory exemptions or 3 exceptions. While it’s unclear whether a court-martial is included in the definition of an agency, a RLSO certainly is. There’s no FOIA exemption for documents that have been filed in a pending case. (Nor should there be.) So copies of motions and replies within a RLSO’s possession may bge obtained through FOIA. (The same would be true of a request to whatever office controls prosecutors in the Army.)

    Courts have gone so far as to hold that even documents under court seal may have to be turned over pursuant to a FOIA request. A document under court seal will excuse an agency from turning over the document pursuant to a FOIA request only if “the seal, like an injunction, prohibits the agency from disclosing the records.” Morgan v. United States Dep’t of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991).

    My understanding is that the RLSO still hasn’t articulated any basis for refusing to produce the requested documents. Nor does there appear to be any such basis.