Records Challenge by Ex-Gawker Editor Unravels
MANHATTAN (CN) - Revealing who's digging through what in former President George W. Bush and Vice President Dick Cheney's libraries would "constitute a clearly unwarranted invasion of personal privacy," the 2nd Circuit ruled Tuesday.
John Cook had sought such information three years ago while reporting for media gossip site Gawker.
Under the Presidential Records Act of 1978, ex-presidents and vice presidents can keep their libraries private for five years and exempt six types of records for up to 12 years. The statute also lets them provide "Congress, courts and subsequent administrations" with access to documents barred from public exposure.
For his story on how the Bush administration shaped public opinion through disclosures to their representatives, Cook filed a request under the Freedom of Information Act for records that revealed only "which designated representatives and other officials sought and were or were not granted access to what Administration documents," as described, emphasis included, in his subsequent lawsuit.
U.S. District Judge Kevin Duffy threw out the complaint in early 2013, one month after Cook's promotion to Gawker's editor-in-chief.
During his appeal, Cook took a new job as the editor-in-chief of The Intercept, a website formed to publish other secret documents: namely, those leaked by NSA whistle-blower Edward Snowden.
Sparking massive public debate about invasions into privacy in the name of national security, Snowden's trove illuminated mass surveillance programs that the Bush administration authorized in the wake of the Sept. 11, 2001, attacks.
Taking a stand for Bush and Cheney's privacy interests, a three-judge panel for the 2nd Circuit unanimously affirmed dismissal of Cook's case Tuesday.
"These requests of the former President and Vice-President at issue here, made for purposes of their private research, perhaps for preparation of memoirs, reveal their preliminary thinking and personal matters," Judge Denny Chin wrote for the panel. "The disclosure of this information would indeed 'constitute a clearly unwarranted invasion of personal privacy.'"
General confidentiality for library requests adds another layer of protection over the information, the court found.
"All fifty states and the District of Columbia protect the confidentiality of the records of a person's use of public library materials," according to the 24-page opinion. "Similarly, the 'Code of Ethics for Archivists' approved by the Society of American Archivists commands archivists to 'respect all users' rights to privacy by maintaining the confidentiality of their research and protecting any personal information collected about the users."
In a 2012 blog post he titled "Bush and Cheney Are for Snooping in Everyone's Library Records but Theirs," Cook highlighted the irony of the administration's invocation of the "Librarian's Code" in court.
Cook noted that one of the most controversial provisions of the Patriot Act "empowered the FBI to rummage through library records with impunity and without a warrant, confidentiality be damned."
The 2nd Circuit likewise rejected Cook's argument that disclosure would benefit the public by revealing whether those granted special access used it to wage political battles.
The Presidential Records Act does not limit how such access is used, the court found.
"It is therefore not NARA's duty to police how the former officials use the presidential records they receive," the opinion states.
Max Mishkin, who handled Cook's appeal for Yale Law School's Media Freedom and Information Access Clinic, did not immediately respond to a request for comment.