Gawker Can’t Profile Bush & Cheney Watchers

MANHATTAN (CN) - A Gawker reporter cannot see research into the archives of George W. Bush commissioned by the former president and Dick Cheney, a federal judge ruled.

Members of the public have been authorized since the 1978 passage of the Presidential Records Act, or PRA, to view the archives of their leaders, but the post-Watergate law subjects these files to a five-year delay.

The law also lets presidents establish a 12-year restricted period for six categories of documents that they designated before leaving office.

Under the PRA, each administration can also designate researchers eligible for early access, along with the incumbent president, the judiciary and legislators.

John Cook, who took over as Gawker editor last month, had submitted a Freedom of Information Act request to the National Archives and Records Administration, or NARA, seeking only correspondence related what Bush and Cheney's designated researchers sought since President Barack Obama took office.

The October 2010 request, made while Cook was still a reporter for the media blog, did not seek any records that the researchers may have obtained.

Cook believed that parsing the researchers' requests would expose how Bush and Cheney shaped public perception of their tenure.

NARA sent a denial letter on Dec. 1, 2010, claiming an exemption related to the invasion of personal privacy.

When Cook appealed, NARA retracted its decision to withhold requests made by Obama, the judiciary and congressmen, because these individuals could not claim privacy under the Freedom of Information Act.

NARA insisted, however, that Bush and Cheney retained their privacy interests over their requests for records from their own administration.

Cook sued over this denial a year later, claiming that NARA withheld "more than 10,000 pages of documentation related to special access requests by Designated Representatives and Other Officials" into their administration.

"Mr. Cook does not seek the administration's documents, which are protected from disclosure under the PRA; rather, he seeks only records of which designated representatives and other officials sought and were or were not granted access to what administration documents," the lawsuit stated (italics in original).

"Mr. Cook seeks these records in order to gain insight into the way in which the former president and vice president have chosen to shape the public's perception of their time in office, and to provide this insight to the public through online news stories."

U.S. District Judge Kevin Duffy threw out this lawsuit Friday.

"Balancing the public's need the requested information against the former official's and their designees' privacy interests, the court finds that disclosure here would constitute a clearly unwarranted invasion of personal privacy," the 16-page order states.

"First, the former president and vice president's research designees have an obvious privacy interest [in] their names and contact information, which evidently appear on the special access requests. ...

"Second, the government has presented a number of compelling arguments demonstrating that former President George W. Bush and Vice President Cheney have a substantial privacy interest in the requested documents. ... It is evident that researchers have an expectation of confidentiality when they conduct research at NARA facilities, ... and making NARA research requests accessible through FOIA will inevitably have a chilling effect on academic research. And since the PRA is in part designed to give former Presidents and Vice Presidents a time-limited monopoly on certain information to encourage the preparation of their memoirs, their research in particular has important privacy interests at stake."

Cook failed to show that the records would expose how Bush and Cheney are trying to shape public opinion about their tenures, according to the ruling.

"The American public stands to gain little from knowing what the former officials are researching during the time period protected by the PRA," the opinion states. "In contrast, the invasion of privacy on the former officials and their designees is great."

Cook told Courthouse News that he has not yet made any decision about an appeal.

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