On Oct. 29, 2001, various public-interest organizations submitted FOIA requests to the Justice Department, INS and FBI seeking disclosure of the identities, locations of arrest, current whereabouts, nature of charges, names of attorneys and similar information about the detainees. When the request was substantially denied by the agencies, citing security concerns, plaintiffs filed suit. The district judge ordered the government to release the names of the detainees and their attorneys, while denying access to information about the dates and locations of arrest, detention and release. That decision was Center for National Security Studies v. Department of Justice, 215 F.Supp.2d 94 (D.C. District Court 2002).

On appeal, the U.S. Circuit Court of Appeals for the District of Columbia reversed the district court decision (June 17, 2003). In a 2-to-1 opinion, the court held that the information was properly withheld from the press under the national security exemptions in the Freedom of Information Act. Further, the court refused to “expand the First Amendment right of public access to require disclosure of information compiled during the government’s investigation of terrorist acts.” The Center for National Security Studies appealed to the Supreme Court but was denied certiorari (Jan. 12, 2004).

Access to judicial proceedings
Perhaps the most well-developed case law governing information and press access is that relating to access to criminal judicial proceedings. In a case that eventually reached the Supreme Court, reporters filed suit after being denied access to a murder trial. The Supreme Court held in Richmond Newspapers v. Virginia (1980) that although such a right of access was not specifically enumerated in the Constitution, the right to attend criminal trials was “implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press would be eviscerated.”

In open proceedings in the post-9/11 cases regarding press access to government activities and information, Richmond Newspapers and its progeny are cited as key precedents. However, there is no way of knowing if the government was held to these standards in closed proceedings, particularly in the case of post-9/11 detainees. In M.K.B. v. Warden (2004), the Supreme Court denied certiorari for a detainee and also denied a news-media motion to intervene in the case, all without citing precedent or allowing the movants to read the government’s brief.

(See also the First Amendment Center Online article on Courtroom access.)

Access to institutions
In Pell v. Procunier (1974), however, the Supreme Court found that the press did not have a constitutional right of access greater than that afforded to the public. In Pell, reporters sued to gain access to a prison to freely interview certain inmates. The Court noted that the press did have some rights of access to visit the prisons and to freely interview random prisoners, but it could not demand face-to-face interviews with specific inmates. The Court went on to note that the press and the public are regularly excluded from grand jury proceedings, judicial conferences, scenes of crime or disaster, meetings of some official bodies and meetings of private organizations. The Constitution does not impose upon government “the affirmative duty to make available to journalists sources of information not available to members of the public generally.”

(See the First Amendment Center Online article on Journalist access.)

Michael Roffe is a graduate of Colgate University and is pursuing a law degree at Vanderbilt University Law School. He worked as a research assistant at the First Amendment Center in 2004.