Maybe you remember a few months ago that the Justice Department tried to charge the People for the American Way $373,000 for a FOIA request the group made around eight totally secret ("super-sealed") immigration detainee cases.
The good news... The Justice Department has dropped its demand for the suitcase of cash.
The bad news... The DOJ says isn't not handing over the documents anyway.
The worst news... I'll let the Reporters Committee for Freedom of the Press take over:
April 11, 2005 -- Complying with a public interest group's Freedom of Information Act request for records about the federal government's sealing of entire immigrant-detainee cases in U.S. district courts will be difficult because the practice [known as "super-sealing"] is "not as rare as it seems on its face," a Justice Department lawyer told a federal judge last month.
I just did some quick searching on "super-sealed" and found a Miami Daily Business Review piece from 2003 that explains that there's essentially no precedent or procedure for "super-sealing," which the government hasn't limited to immigration cases. The piece at two cases, one having to do with drugs:
In both cases, the public court docket and court record contained no party names, no facts, no judge, no attorneys and no documents that were publicly accessible. Even the case numbers were confidential. And for the one party who objected, he and his attorney were placed under gag orders. While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket.
In standard sealed cases judges need to be convinced of an imminent threat:
"That's the safeguard," said [one lawyer]. "If the government says [secrecy] is required, it's put to the test and the judge evaluates the evidence. You win some, you lose some, but at least you've had your day in court and there's an order on the record and people know that something has been done in secret. When you have a secret docket, that's not been done."
[...]
The brief by the Reporters Committee cites nearly a dozen prior court cases that, in its view, describe what judges must do before closing a proceeding or sealing a document. Judges must make specific findings about why secrecy is necessary, consider alternatives to secrecy and provide public notice on proposed closings, said the brief.
Apparently ( I'm not sure I understand all this yet), none of those checks and balances apply for super-sealed cases:
"If a motion to seal is itself filed under seal," said [one lawyer], "it defeats the purpose of the system and undermines the credibility of the courts."
And no, the administration will not say how often it's "super-sealed" cases.
