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Watchdog’s Fast and |Furious Suit Revived

(CN) - The D.C. Circuit revived a challenge to unseal settlement talks in the case lawmakers brought for records on Fast and Furious, a botched plan to track guns smuggled from Mexico.

Orchestrated by the Phoenix field office of the Bureau of Alcohol, Tobacco and Firearms, Operation Fast and Furious involved turning a blind eye to the transfer of illegally bought firearms to third parties in Mexico, in the hopes that U.S. agents would follow them to cartel leaders.

The mission fell apart, however, after agents lost track of thousands of guns, some which turned up at the scene of the 2010 firefight in Arizona that resulted in the death of Border Patrol agent Brian Terry.

Faced with an investigation by Congress, the Justice Department initially sent a letter to the House Oversight and Government Reform Committee denying that guns had been allowed to walk across the border. It later informed Congress that the letter was incorrect.

The committee sued Holder when he withheld some records it wanted regarding the DOJ's initial denial.

After referring the case to mediation in March 2013, U.S. District Judge Amy Jackson ordered the DOJ earlier this month to produce certain documents by April.

Amid these proceedings, the DOJ also faced a lawsuit from Judicial Watch regarding its settlement discussions in the House committee case.

To avoid turning over responsive documents, the DOJ said it lacked discretion. It quoted Judge Jackson's reaction in the committee case when settlement discussions came up. "I don't know what you said," Jackson said. "I don't want to know."

Though the evidence led U.S. District Judge Richard Leon to grant the DOJ summary judgment against Judicial Watch, the D.C. Circuit reversed Friday.

"Judge Jackson's statement, 'I don't want to know,' clearly bars the parties from divulging the contents of their settlement discussions only to her; a broader bar, if any, would have to be inferred for it is not explicit," Judge Douglas Ginsburg wrote for a three-judge panel.

The statement does not clearly refer to third parties, let alone protect responsive records from a Freedom of Information Act request, the court found.

"The Department offers a good reason Judge Jackson might have wanted to prohibit disclosure to third-parties - because protection from disclosure promotes more open dialogue during settlement - but there is no extrinsic evidence that was what the judge intended; indeed, that concern is nowhere mentioned in the record in this case, and it is equally plausible that Judge Jackson wanted simply to preserve her objectivity in case she ultimately were to preside over a trial," Ginsburg continued.

On remand, Judge Jackson must clarify what she intended by her statement.

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