Federal appeals court rules National Security Council records not subject to FOIA

Federal appeals court rules National Security Council records not subject to FOIA

The US Court of Appeals for the Second Circuit [official website] ruled [order, PDF] Tuesday that the president’s National Security Council (NSC) [official website] is not subject to the Freedom of Information Act (FOIA) [official website]. The appeals court denied an appeal from Main Street, a group at the City University of New York School of Law [academic website], which was seeking records from the NSC related to US targeted drone strikes. One of the key requirements to be subject to open records laws is that the organization must have independent authority. Main street argued that the “pervasive decision-making role of the NSC in foreign policy and security issues has made it a federal agency subject to FOIA.” Judge Raggi, along with Judges Lynch and Wesley disagreed [The Hill report], stating: “This structure confirms that the Council is more appropriately viewed as a forum attended by actors exercising independent authority within their respective spheres, not an actor itself, much less one exercising authority independent of the President,” therefore the NSC does not fall under the FOIA. NCS record were accessible under FOIA until 1996, when the DC Circuit ruled [Politico report] that the NCS was not an agency under the terms of FOIA.

The use of drones [JURIST backgrounder] is controversial in both the international arena and in domestic circles. In November the Second Circuit ruled that the US government may keep secret memoranda [JURIST report] related to the legal justification for the use of drones for targeted killings of those in other countries believed to be involved in terrorism. The case was the result of FOIA requests by the American Civil Liberties Union and the New York Times for documents prepared by the Office of Legal Counsel of the US Department of Justice regarding the drone strikes. In June the families of two Yemeni men killed by US drone strikes filed a lawsuit [JURIST report] against the government, claiming they were wrongfully killed. In December 2010 a judge for the US District Court for the District of Columbia dismissed a lawsuit [JURIST report] challenging the Obama administration’s ability to conduct targeted killings [JURIST backgrounder], a challenge spurred because one subject of a targeted killing, al-Awlaki-Khan, was a dual US-Yemeni citizen.