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Kagan argued for secrecy in majority of cases

In four of five cases she dealt with involving the Freedom of Information Act, Elena 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.
Image: Elena Kagan
Supreme Court nominee Elena Kagan smiles during her meeting with Sen. John Kerry, D-Mass., on Capitol Hill.Alex Brandon / AP
/ Source: The Associated Press

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.

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 them.

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 arguments.

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 records law.

"That's really going outside the four corners of the statute," Sloan said. "I find that kind of a ridiculous argument."

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 said.

"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 Internet access.

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 privacy.

An appeals court sided with AT&T. That is at odds with long-standing interpretations of the law, Kagan wrote.

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 time sheets.

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.