Tuesday, July 31, 2018

Federal judge in Siegelman FOIA case seems to favor privacy of government employees over the public's right to know if its business was conducted lawfully


Joseph and Don Siegelman
Which is more important: (A) That the public be assured its justice-related work is conducted ethically; or (B) The personal privacy of justice-related government workers is protected?

In a semi-functional democracy, the answer clearly should be "A." But the recent dismissal of a Freedom of Information Act (FOIA) lawsuit in the prosecution of former Alabama Gov. Don Siegelman suggests the answer is "B" -- at least in the minds of federal judges and Department of Justice (DOJ) employees.

As we recently reported, a FOIA lawsuit from Birmingham attorney Joseph Siegelman (Don's son and a candidate for attorney general of Alabama) produced documents from the DOJ's Office of Professional Responsibility (OPR) that were, according to a source close to the case, "so heavily redacted they were worthless." That means a 12-year government cover-up of documents about the "recusal" of Leura Canary (then U.S. attorney for the Middle District of Alabama) -- and other key issues in the Siegelman prosecution -- will continue to keep the public in the dark.

OPR turned over the documents last April for in camera review, and U.S. District Judge Madeline Haikala -- surprise, surprise -- sided with the government. Haikala let the case stay dormant for roughly 10 months before dashing off three rulings in February 2018, the last being a final order, dismissing the case on Feb. 28.

This is the same Haikala,-- an Obama appointee and former attorney with Birmingham's Lightfoot Franklin firm, -- who twisted the facts and law into a pretzel in order to let Madison police officer Eric Parker off on criminal charges after he had body slammed Sureshbhai Patel (a grandfather from India), causing spinal injuries. We reported a four-part series about the myriad ways Haikala butchered the law in the Patel case. Our view is that she butchered the Siegelman FOIA case, too.

An online summary of the case docket indicates Haikala sided with the government because it claimed certain information requested was exempt under FOIA.  The final docket entry reads as follows:

2018-02-28 -- 28 -- FINAL ORDER - On February 23, 2018, OPR gave notice that it produced the identified non-exempt portions of its report to Mr. Siegelman. (Doc. 27). Because OPR produced the portions that are not protected from disclosure under FOIA exemptions 3, 5, 6, and 7(C), Mr. Siegelman's request for injunctive relief is now moot. Accordingly, this action is DISMISSED AS MOOT. Signed by Judge Madeline Hughes Haikala on 2/28/2018. (KEK) (Entered: 02/28/2018)

FOIA includes nine exemptions, where the government does not have to produce information. In the Siegelman matter, OPR claimed exemptions 3, 5, 6, and 7(c). Let's examine the language in each of those four exemptions:

Exemption 3: Information that is prohibited from disclosure by another federal law.

Exemption 5: Privileged communications within or between agencies, including those protected by the:

1. Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
2. Attorney-Work Product Privilege
3. Attorney-Client Privilege

Exemption 6: Information that, if disclosed, would invade another individual's personal privacy

Exemption 7: Information compiled for law enforcement purposes that

7(A). Could reasonably be expected to interfere with enforcement proceedings
7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy

Detailed information is available at the following links: Exemption 3Exemption 5, Exemption 6, and Exemption 7. Without diving too deeply into the minutiae of FOIA law, let's try to look at this from the "reasonable man" perspective.

The government spent more than five years investigating Don Siegelman and co-defendant Richard Scrushy. In fact, the investigation dragged on so long that it passed the five-year statute of limitations, meaning the case, by law, could not go to trial. The prosecutors, judges, their offices, and courthouses -- all resources on the government's side of the case -- were taxpayer funded. After a jury reached a guilty verdict that ran contrary to facts and law, Siegelman and Scrushy were sent to federal prison for roughly six years each -- all at taxpayer expense.

Madeline Haikala
Does the public have a right to know if the prosecution was conducted lawfully? Well, the case cost taxpayers millions of dollars, so the answer clearly is yes. Why does the Office of Professional Responsibility, then,  seemingly feel it has no responsibility to the public? Why do OPR lawyers -- with assistance from a federal judge -- use FOIA as a tool to cloak information in darkness, rather than to shine light on government processes?

Exemptions 3 and 5 involve mostly inter-agency communications and legal privileges that can be arcane and mind-numbing. Without access to the full court file, it's hard to take an informed view of those, so we won't spent time on them.

Exemptions 6 and 7(c), both dealing with "personal privacy" (apparently of government employees, in the Siegelman case), are deeply alarming. Certainly Leura Canary and others who worked on the Siegelman prosecution have "personal privacy," to a certain extent. Let's imagine Canary used her work computer to jot out a grocery list, make a guest list for a party, or write a letter to a relative. If those showed up in a FOIA search, they understandably would be redacted as private.

But when Canary and her staff put on their prosecutors' hats and conduct public business, why should they be entitled to "personal privacy"? Why should their actions on the Siegelman case -- generally considered the most flagrant political prosecution in U.S. history -- be considered "private"?

Exemption 7, for example, applies to records that were "compiled for law enforcement purposes." But multiple courts have held it must a a "proper law enforcement purpose." What if the Siegelman case was brought for political purposes, which had nothing to do with legitimate law enforcement? That probably is the central question that Joseph Siegelman's FOIA lawsuit sought to answer. But the government apparently is allowed to unilaterally declare -- in a "trust me" sort of way -- that it acted in good faith, without providing any evidence to support that assertion.

As for Exemption 6, withheld information must fall in the category of " "personnel and medical files and similar files." Why would Joseph Siegelman be interested in personnel and medical files of DOJ employees? He wouldn't. Why would such files have an impact on his father's prosecution? They wouldn't. It's hard to imagine how Exemptions 6 and 7 could apply to the Siegelman FOIA request.

From  a practical standpoint, why would Leura Canary, her staff, and OPR be concerned about a FOIA request if the Siegelman case was conducted lawfully, for "proper law enforcement purposes?

That the government has been stonewalling now for 12 years suggests someone has something to hide. And the public should be outraged that it's still in hiding.

14 comments:

Anonymous said...

These are public documents, paid for with public funds. They should be available to the public.

Anonymous said...

These documents obviously make some powerful people look bad. Hence, the cover-up.

Anonymous said...

Haikala is just a rubber stamp for white elites. That's why she let the cop off in the Patel case; it's why she's helping cover up prosecutorial misconduct in the Siegelman case.

Anonymous said...

Another example of a really crappy judge that Obama/Biden appointed.

It's bad enough to see the scoundrels on federal bench that GOP admins have appointed. But it's really disgusting when Dems appoint crooked judges.

legalschnauzer said...

@9:23 --

Good point. I see memes on Facebook where folks ask if Obama should be considered one of our greatest presidents. Some even suggest that his image be added to Mount Rushmore. Given the mess he inherited from GWB, Obama deserves high marks in some areas, particularly on the economy. But his dismal record on justice issues leaves him with an "average, at best" mark -- at least from me.

Anonymous said...

These documents belong to the public. You and I paid for them, we paid for the prosecution, we paid for the imprisonment. I resent the hell out of the DOJ keeping them under wraps, and the judge who lets them get away with it.

Anonymous said...

How did Obama and Biden pick such crappy judges for Alabama?

legalschnauzer said...

@10:17 --

My guess is by taking the advice of sorry SOBs like Artur Davis and Doug Jones.

Anonymous said...

This cuts to the chase:


Exemption 7, for example, applies to records that were "compiled for law enforcement purposes." But multiple courts have held it must a a "proper law enforcement purpose." What if the Siegelman case was brought for political purposes, which had nothing to do with legitimate law enforcement?

legalschnauzer said...

@12:01 --

Agreed. There was no "proper" law enforcement purpose in the Siegelman case, and the DOJ cannot prove one existed.

Anonymous said...

LS: I agree wholeheartedly with @12:01 pm, and, IMHO, this is one of your best posts ever (and I have been following your blog for a long time)! Simple, straightforward and factual--bravo!!

Anonymous said...

Where are John Archibald and his Pulitzer Prize on a Birmingham story of major importance, such as this one.

legalschnauzer said...

@9:02 --

Archibald, Whitmire, and the rest of al.com long have been in the bag for prosecutors on the Siegelman matter, and they aren't going to change now.

Archibald has a man-crush on Matt Hart, so he certainly can't report accurately about prosecutorial misconduct on any of the Siegelman cases.

Anonymous said...

Legalschnauzer: I agree with you on Obama. I have defended him rigorously from spurious attacks, but was deeply saddened by his dismal record on such issues as whistleblowers, and government transparency.