OPEN GOVERNMENT — Supreme Court nominee Elena Kagan's arguments as
solicitor general in several cases on government secrecy were at odds
with a promise of transparency made by her boss and top client,
President Barack Obama, reports Sharon Theimer for the Associated Press.
In four of five cases she dealt with
involving the Freedom of Information Act, Kagan argued in favor of
secrecy, Justice Department documents show. In those four lawsuits, the
Supreme Court took her side and let lower court rulings in the
government's favor stand.
The justices haven't yet said
whether they will take the fifth case, in which Kagan argued against
broadening an open records exemption to let corporations claim personal
privacy rights and avoid public release of government documents about
As the government's top lawyer
arguing before the Supreme Court, the solicitor general generally
determines which cases to take to the court and what to argue. The White
House and Justice Department declined to say whether Kagan's arguments
in open records cases reflect her personal views.
In the most widely publicized
freedom of information case, Kagan successfully argued that the Supreme
Court should overturn a New York appeals court ruling that directed the
government to release photographs of foreign detainees being abused by
their U.S. captors. The American Civil Liberties Union sought the
photos; Obama and the Pentagon opposed their release.
"In the judgment of the president
and the nation's highest-ranking military officers, disclosure of the
photographs at issue here would pose a substantial risk to the lives and
physical safety of United States and allied military and civilian
personnel in Iraq and Afghanistan," Kagan told the court in written
In another case, Kagan argued that a
consumer group should be denied data on physician claims paid by
Medicare because it would amount to an unwarranted invasion of the
physicians' personal privacy. That information could be paired with a
publicly available Medicare fee schedule to figure out how much each
physician earned from Medicare, she and her team argued, contending that
the government could withhold the physician claim information under an
exemption in the open records law.
"The fact that some arithmetic,
using publicly available fee schedules, might be necessary to compute
the precise amount of a physician's income is no privacy protection for
the physician at all," Kagan told the high court in a brief. The court,
as Kagan wanted, declined to hear the group's appeal.
A government watchdog found Kagan's
argument in that case troubling. Kagan didn't argue that the information
the center sought is private, but rather that the information, combined
with other things, could lead people to figure out something the
government doesn't want public, said Melanie Sloan, head of Citizens for
Responsibility and Ethics in Washington, a frequent user of the open
"That's really going outside the
four corners of the statute," Sloan said. "I find that kind of a
Still, Kagan's arguments for the
government do not mean she will rule a particular way in open records
cases as a justice, Sloan said. Positions on Freedom of Information Act
issues do not generally fall along Democratic or Republican lines, she
"It's not as clear as some other
issues where you tend to have a better read just from the person's party
and the kind of things they've worked on in the past," Sloan said.
In another freedom of information
case involving personal privacy, Kagan argued that corporations aren't
entitled to claim the law's personal privacy exemption to avoid having
government documents about them released to the public.
In that case, telecommunications
giant AT&T argues it has a right to make use of the Freedom of
Information Act's personal privacy exception. It says the Federal
Communications Commission should keep secret all the information it
gathered from AT&T during an investigation into its participation in
the federal E-Rate program, which helps schools and libraries get
The FCC had released some of the
information under an open records request, but withheld some, citing
FOIA exemptions that cover trade secrets and humans' right to privacy.
AT&T argues releasing any information violates its right to personal
An appeals court sided with
AT&T. That is at odds with long-standing interpretations of the law,
The ruling threatens to put up
barriers to the release of information "concerning corporation
malfeasance in government programs that the public has a right to
review," Kagan told the justices.
If Kagan is confirmed as expected
and the court takes the AT&T case, she will have to recuse herself
due to her past involvement.
Besides the Medicare claims case,
the Supreme Court declined to review two other open-records lawsuits in
which Kagan argued that lower-court rulings letting the government keep
information secret should stand. One involved Pentagon documents sought
by a court-martialed Army private sentenced to death. In the other case,
the government refused to release an Internal Revenue Service officer's
Obama, who appointed Kagan solicitor
general and nominated her to the Supreme Court, has promised to govern
transparently and directed the government to handle open records
requests with the presumption that information can be disclosed.
Agencies have discretion over whether to apply exceptions to the law
that let them keep information secret in special circumstances.
Asked whether Kagan's briefs reflect
Obama's positions and say anything about how Kagan would rule on such
cases as a justice, White House spokesman Ben LaBolt said: "The role of
the solicitor general is to represent the American people and their
government before the Supreme Court. It is not to represent their
personal views before the court, nor do the positions they take in court
necessarily reflect the administration's views – solicitors general
have a duty to defend the laws that are on the books."
Kagan also worked for the Clinton
White House, and was mindful of the open records law while there,
documents released last week by former President Bill Clinton's library
show. "There's almost nothing I would want to say to him about policy
under discussion in a FOIAble report," Kagan, then a Clinton adviser on
domestic policy, e-mailed a colleague in October 1997, referring to a
report being prepared for Clinton.
Solicitor generals represent the
government, but have "had a great degree of independence" over which
cases to pursue, a description on the Justice website says.
Justice and the White House declined
to say if there were any freedom of information rulings against the
government that Kagan decided against appealing.