Feds Must Unveil Chatter on AIDS Funding Pledge

MANHATTAN (CN) - The 2nd Circuit agreed to limit disclosure of federal agency dialogue about plans to condition AIDS funding on a pledge against prostitution.

Passed by Congress in 2003, the Leadership Act supported an international campaign to fight AIDS, tuberculosis and malaria pandemics through the development of vaccines and treatments and partnerships between federal agencies and NGOs.

A controversial subclause of the legislation stated: "No funds made available to carry out this act ... may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking."

Nonprofit groups that opposed the mandate said the pledge cost them international credibility, interfered with prevention outreach to sex workers and violated their free-speech rights.

The 2nd Circuit found this clause unconstitutional in July 2011.

Weeks after this decision, U.S. District Judge Victor Marrero granted Freedom of Information Act requests from the Brennan Center for Justice, looking into the history of the mandate.

Marrero's order forced the Department of Justice, Agency for International Development (USAID), and Department of Health and Human Services (HHS) to cough up two sets of documents.

On Thursday, a different 2nd Circuit panel agreed to shield a set of the sought-after documents.

The agencies still must turn over a "February 2004 memorandum" that summarizes Office of Legal Counsel advice about the constitutionality of the pledge.

The Brennan Center said it learned about the document from two sources: a USAID document and Congressional record testimony.

A footnote of USAID's document, "Guidance on the Definition and Use of the Child Survival and Health Programs Fund and the Global HIV/AIDS Initiative Account," states that the OLC advised sidestepping constitutional issues by enforcing the pledge only with foreign nongovernmental organizations.

Later, a USAID staffer told Congress that the OLC reconsidered that "tentative advice" and now concluded that the pledge could "apply without that limitation."

Government lawyers claimed that the February 2004 memorandum met the criteria for a FOIA exception related to communications between agencies.

But the three-judge panel found that USAID waived this privilege by going public with its positions, twice.

"Any agency faces a political or public relations calculation in deciding whether or not to reference what might otherwise be a protected document in explaining the course of action it has decided to take," Judge Robert Sack wrote for the panel. "In many cases, as here, the agency is not required to explain its reasons publicly. Nonetheless, where it determines there is an advantage to doing so by referencing a protected document as authoritative, it cannot then shield the authority upon which it relies from disclosure."

Since there is no mention of "July 2004 memos" in the public record, however, the government need not release these documents, according to the 52-page ruling.

"In sum, there is no evidence that the USAID or HHS based its change in policy on the draft memoranda it seeks," Sack wrote.

The court instructed Judge Marrero to throw out this request.

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