Freedom of Information Act Litigation
NIMJ v. U.S. Department of Defense
In 2003, the National Institute of Military Justice ("NIMJ") submitted a Freedom of Information Act ("FOIA") request to the Department of Defense ("DoD") for certain communications pertaining to the President’s 2001 Military Order establishing the use of military commissions to prosecute alleged terrorists and war criminals, the Secretary’s Military Commission Orders, and the Military Commission Instructions. These communications encompassed all documents, written or electronic, received from or sent to anyone other than an employee or official of the United States government acting within the scope of their duties. The DoD produced some, but not all of the requested documents and NIMJ filed a complaint for injunctive relief with the United States District Court for the District of Columbia. The District Court entered a summary judgment against the complaint, and NIMJ appealed to the United States Court of Appeals for the District of Columbia Circuit.
The appeal raised the issue of whether FOIA Exemption 5 protecting disclosure of inter- or intra-agency communications applied to 19 withheld records consisting solely of external communications between DoD personnel and volunteer private citizens. NIMJ argued that because the private citizens were uncompensated, and thus not acting in a government employee capacity, Exemption 5 could not apply. The Court of Appeals rejected this contention. The Court ruled that Exemption 5’s statutory language embraced even those communications from outside of the agency they considered part of the deliberative process needed to decide important policy matters. NIMJ petitioned the Supreme Court for a writ of certiorari, but the petition was denied.
United States District Court for the District of Columbia
- Comlaint for Injunctive Relief (2004)
- Government's Motion for Summary Judgment (2005)
- Government's Motion for Protective Order (2005)
- Government's Reply to NIMJ's Opposition to Government's Motion for Protective Order (2005)
- Government's Reply to NIMJ's Opposition to Defendant's Motion for Summary Judgment and Opposition to NIMJ's Cross Motion for Summary Judgment (2005)
- NIMJ's Reply to DoD's Opposition to NIMJ's Second Cross-Motion for Summary Judgment (2005)
- Decision (2005)
- Government's Renewed Motion for Summary Judgment Relating to Freedom of Information Act Exemption 3 (2006)
- NIMJ's Opposition to DoD's Renewed Motion for Summary Judgment (2006)
United States Court of Appeals for the District of Columbia Circuit
- NIMJ's Brief (2007)
- Government's Brief (2007)
- Amicus Curiae in Support of NIMJ, The Constitution Project (2007)
- NIMJ's Reply Brief (2007)
- Decision (2008)
- NIMJ's Petition for Rehearing (2008)
United States Supreme Court
- NIMJ's Petition for a Writ of Certiorari (2008)
- NIMJ's Reply Brief for a Writ of Certiorari (2008)
- Amicus Curiae in Support of NIMJ, The National Security Archive (2008)
- Amicus Curiae in Support of NIMJ, The Reporters Committee for Freedom of the Press (2008)
- Government Opposition to Petition for a Writ of Certiorari (2008)