Fast and Furious records aren’t protected from disclosure, court rules

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( –-  A three-judge federal appeals panel in Washington has overturned a lower court ruling that allowed the Department of Justice (DOJ) to withhold documents from the public regarding its Fast and Furious gun-running scandal.

Senior Circuit Judge Douglas Ginsburg, who wrote the February 12 ruling, cited a prior case which found that “the test for determining whether an agency has improperly withheld records placed under seal by a court is ‘whether the seal, like an injunction, prohibits the agency from disclosing the records’.”

But “the government has not carried its burden in this case,” Ginsburg concluded.

However, Friday’s appellate ruling does not order the immediate release of the Fast and Furious documents which Judicial Watch had requested under the Freedom of Information Act (FOIA). It merely sends the case back to the lower court for clarification.

In Operation Fast and Furious, Alcohol, Tobacco, Firearms and Explosives (ATF) agents in Phoenix allowed drug cartel “straw purchasers” to buy more than 2,000 firearms in the U.S. and smuggle them over the border into Mexico, including two AK-47s used to murder U.S. Border Patrol agent Brian Terry in 2010.

Last December, two men convicted of killing Terry were sentenced to life in prison.

“In October 2011, the House Committee on Oversight and Government Reform subpoenaed Attorney General Eric Holder for documents relating to the ‘Fast and Furious’ operation,” according to Friday ‘s ruling.

But “when the Attorney General refused to produce some of the subpoenaed records on the ground of executive privilege, the House sued to enforce its subpoena.”

On March 18, 2013, at the Justice Department’s request, Circuit Court Judge Amy Berman Jackson referred that case, Committee on Oversight and Government Reform v. Holder, to mediation.

Two days later, Judicial Watch filed a FOIA request seeking “any and all records of communications, correspondence, and contacts between the Department of Justice (DOJ) and the House Committee on Oversight and Government Reform concerning or relating to a settlement” between them.

DOJ identified eight documents in response to the FOIA request but refused to hand them over, telling Judicial Watch that “all of the information responsive to your request is withheld in full… subject to court-imposed non-disclosure requirements.”

On Sept. 5, 2013 Judicial Watch sued DOJ for the withheld documents.

In August 2014, District Judge Richard Leon ruled that Judge Jackson’s remark at a January 10, 2013 status hearing (“I don’t know what you said. I don’t want to know.”) “was an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions private.”

The appellate judges disagreed. Judge Jackson’s statement “clearly bars the parties from divulging the contents of their settlement discussions only to her,” according to last week’s ruling.

“The Department offers a good reason Judge Jackson might have wanted to prohibit disclosure to third-parties – because protection from disclosure promotes more open dialogue during settlement – but there is no extrinsic evidence that was what the judge intended.

“It is equally plausible that Judge Jackson wanted simply to preserve her objectivity in case she ultimately were to preside over a trial,” the ruling stated.

“The intended effect of Judge Jackson’s order is ambiguous,” Ginsburg concluded, and “an ambiguous court order does not protect a record from disclosure pursuant to the FOIA.”

— Written by Barbara Hollingsworth