[private] r3n's request for review

So r3n has decided to try to stonewall the FOIA request. Unfortunately, his request is a relatively reasonable one, and we should accept it So, here's what I see as the options:

1) Rule that the SC is not covered by FOIA, and order that the thread(s) in question be released but all posts not made by the VD redacted.

2) Use this request as a chance to revisit the decision we made before, and amend our previous ruling to say "executive or security" branches of government.

I personally prefer #2, for a few reasons. First of all, none of what they do is necessarily public. This differentiates them from the Court, which holds at least its trials and issues its decisions in the public eye, and even more so from the RA, which even in its most private forum is almost as public as it gets, discussion-wise, and is always public for voting.

The SC, on the other hand, is free to discuss and take action in private, and it is completely within the ideals of the FOIA law that citizens be able to determine their actions and their reasoning wherever possible. Disallowing this would provide the body of citizens no power of oversight and place no checks on the SC.

It's also worth noting that the functions of the SC have always been executive in nature. They do not create law, which is legislative, nor do they interpret law, which is judicial. Rather, they enforce and exercise law - the very definition of the executive branch. The scope of this exercise is, additionally, one typically assumed to be executive. In many regions, the Delegate (and sometimes an appointed Minister) is tasked with ensuring regional security, tracking endoswapping nations, and so on. We have assigned such functions to the Security Council, but that does not change their fundamental nature.

Even back when the SC first existed, it was envisioned as an emergency decision-making body that could act in a shorter timeframe than that allowed for the broader government.[/note]Quoth Grosse: "When I drafted the original proposal, my conception was that the security council would be, in effect, a council of elders who convened on behalf of all of the registered voters and regional assembly members to authorize actions on behalf of the region which may be required prior to the time frame in which actions may be authorized under other constitutional and statutory procedures."[/note] While such snap decisions are sometimes necessary and correct, it nevertheless remains vital for the general population to be able to subject those decisions to scrutiny.

Second of all, any compelling reason for discussions of the SC to be exempted are already covered by the law as written - namely, regional security. The law grants a blanket exception to FOIA release if it would impair regional security, and access to knowledge of the inner workings of the SC can easily be protected under that exception. To exempt them from the law as a whole because they deal with security matters sometimes would, in my opinion, be a gross overreach.

And finally, I think this is the best option because I forgot about the SC when working on the previous ruling. Had I remembered it existed, I would have included language that specifically did not exempt it - so that is an oversight that I think should be rectified.

I'll go ahead and accept the request and give a period of time for briefs to be submitted later today. Could you two give your thoughts on this matter in the meantime? And maybe also on the other one still pending?

I wanted to add, I found two relevant previous court rulings.

First, from here:

As far as the Court can see, the Delegate does not have the authority to unilaterally designate an interim Vice Delegate, given that the office does not fall under the Executive Branch.

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This determination was made based on the laws in force at the time - those laws have since changed, and the VD is explicitly named as a member of the executive.

Second, from here:

Wherein correspondence involves officers of the Executive branch to any other branch, that is covered under the Freedom of Information Act.

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So actually, this determination has already been made by prior courts. We could defer to them and deny the review, or uphold it more explicitly. I think I prefer the latter. Y'all?

Hmmm, interesting.

There is a third consideration -

That the SC is not part of the Executive Branch because its function is tantamount to a military activity, and that the SC is not under the command of the Delegate's executive authority and functions autonomously from any branch of the government with the one exception that the Vice Delegate heads the SC; however, the SC cannot be ordered to do anything by the VD or the Delegate (making it exempt from being considered as part of the executive branch for obvious reasons).

The SC was created based upon an idea I originally conceived of - the whole operational idea of the SC is to support the Delegacy if needed and to remove a rogue or usurping Delegate if needed by a concentrated effort of the nations in the SC. This requires that the SC perform a more military/intelligence function that is autonomous from the Executive Authority of The Delegate; in such a sense, the SC under certain circumstances can order the Delegate to perform a very narrow set of actions if needs be.

This latter point means that the SC, while functioning in an executive fashion, is required to be an independent and autonomous agent from the Executive Branch of the government in order to cheque a Delegate who wantonly usurps authority or ignores the Constitution and Laws (primarily if a Delegate goes rogue).

This inability for the Executive Authority of The Delegate and descending chain of command places the SC outside of the SC. The only way to 'order' the SC to do something is by the RA changing the laws pertaining to the SC, and that would only relate to the defined 'mission' of the SC and not specific actions. A further example of this would be if the RA arbitrarily or capriciously decided to remove one Delegate and replace him with another Delegate in a 'legislative coup' in violation of the Constitution, the SC would in no way be obligated to comply.

SC members are not really 'government officials' in terms that apply to other 'government officials' like the Delegate, or Speaker of the House, Court Justices at all other elected or appointed 'officials'.

Also, more importantly, since the Executive Authority over the SC resides in the SC; the Vice Delegate only chairs the Security Council and a co-equal member of the SC.

In a nutshell:

The VD's authority to reject or approve RA membership is independent of the Security Council as the SC members have no control over the VD's decisions in that type of matter. The VD's ability to approve or deny RA membership to applicants is a function of the Vice Delegate, not the SC; nor is it customary for the SC to really have a say as to who is admitted or not to the RA. The Vice Delegate cannot order SC members to vote one way or another on any matters for that matter. The VD's role in the SC is independent of the Executive Authority of the Delegate, the VD being a coequal member of the SC with other members of the SC, and the scope of function of the VD as it relates to the SC being independent of the Executive Branch.

In other words, the SC is independent of the Executive Branch precisely because the SC exists as a cheque on rogue chief executives. Were the SC part of the Executive Branch, a rogue Delegate could order the SC not to remove him as Delegate.

So, boiled down to tar, the SC is not part of the executive branch and would not be subject to FOIA requests in a way that the Executive Branch is. To change this would require specific legislation but would logically be the same as trying to get a FOIA request of the private deliberations of the Court.

However - since the one of the legal functions of the Vice Delegate is to approve or deny RA applications, and that function is independent of the SC, then it could be construed that the Vice Delegate might be required to give a reasonable explanation as to a decision to deny RA membership to an applicant if they were personally charged with an offense stemming from a denial, or if someone were clever enough to ask the court to review the specific denial as to the specific reasons the VD denied the application.

This last item may be a good way to go.

For instance, if the VD denied East-West-Schmuckistan RA membership due to East-West-Schmuckistan being a 'security threat', such a decision really is not the purvey of the SC nor is it under the authority of the SC to make such a decision.

Hence, if someone were to file a Request For Review of the Vice Delegate's decision, the Court could conceivably require the Vice Delegate to explain why East-West-Schmuckistan is a security threat beyond the simple explanation that the VD says that "East-West-Schmuckistan is a security threat because I say so."

And even then, the only reason that a RA membership can be denied to an applicant is if said applicant is actually or reasonably believed to be a security threat.

And, in which instance, since an RA applicant is deemed to be a Citizen of TNP (you have to be a Citizen as per the Constitution to apply in the first place), to deny an applicant RA membership may involve certain constitutional issues which involve things like the right to due process and appeal (which such a denial by one single person like the VD would not really be).

This would then require an appeal method that goes beyond the RA simply voting to over-rule the VD on such decisions and then makes the VD liable to having to explain his reasoning for the denial, and do so in detail beyond a simple 'because I say so'.

See what I mean here?

It would make the one person responsible for RA Applicant Denials accountable for an action that they alone are responsible for.

I don't think that follows.

As I see it, the basic principle of the FOIA law is to give the citizens of TNP the power to scrutinize the actions of their government and to hold members of that government responsible for what they do in office. Its scope therefore ought to be as wide as necessary to accomplish that goal, while still maintaining reasonable boundaries.

That the SC is not part of the Executive Branch because its function is tantamount to a military activity, and that the SC is not under the command of the Delegate's executive authority and functions autonomously from any branch of the government with the one exception that the Vice Delegate heads the SC; however, the SC cannot be ordered to do anything by the VD or the Delegate (making it exempt from being considered as part of the executive branch for obvious reasons).

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Military activity is executive in function, and definitely ought to be covered by the power of the people to criticize their government. Additionally, not being under the direct control of the Delegate doesn't actually make it not executive - as I mentioned, its role is to execute the law. And if you think back to when TNP had a split executive, just because the Delegate and the Prime Minister couldn't boss each other around didn't mean they weren't both members of the Executive branch.

This latter point means that the SC, while functioning in an executive fashion, is required to be an independent and autonomous agent from the Executive Branch of the government in order to cheque a Delegate who wantonly usurps authority or ignores the Constitution and Laws (primarily if a Delegate goes rogue).

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Sure - it needs to be able to act independent of delegate orders. But this also means that it needs to be able to be scrutinized independent of the delegate. It's entirely appropriate for the SC to tell the delegate to ban a certain nation for dangerous endorsement swapping, but it's equally appropriate for citizens of the region to be able to ask questions about this threat and determine the validity of the SC's choice - otherwise, the SC could order the delegate to ban anybody it wished with no more oversight than "because we said so". And we can see how well that works for keeping something like the RL NSA in check.

And if you look at the wording of the law, it actually seems designed to deal with exactly this sort of case. Once the court gets involved, if a determination of regional security is upheld, that determination can only be overturned once the security factors are no longer in play (and not within two months). It seems self-evident to me that most of the security issues the SC deals with do, indeed, cease to be pressing matters of regional security after a period of time. And those issues ought to be able to be declassified in the interest of maintaining an informed electorate.

SC members are not really 'government officials' in terms that apply to other 'government officials' like the Delegate, or Speaker of the House, Court Justices at all other elected or appointed 'officials'.

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Technically, according to the Constitution, they are government officials exactly like the Delegate, Vice Delegate, Speaker, Justices, and so on. They are "constitutionally mandated government officials", even.

In other words, the SC is independent of the Executive Branch precisely because the SC exists as a cheque on rogue chief executives. Were the SC part of the Executive Branch, a rogue Delegate could order the SC not to remove him as Delegate.

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I agree that the SC is independent of the Delegate, but there's no reason to say that it's not executive. Given that the SC's function with respect to the law is executive in nature, it would be more accurate to say that they are co-equal and co-executive.

So, boiled down to tar, the SC is not part of the executive branch and would not be subject to FOIA requests in a way that the Executive Branch is. To change this would require specific legislation but would logically be the same as trying to get a FOIA request of the private deliberations of the Court.

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I don't think this is true. The SC's nature and functions ought to be available for the public to scrutinize as much as possible, with the obvious exception of regional security issues - an exception which is already explicitly built into the law. There is no need to exempt the SC from being subject to the law because everything it has which should not be declassified can already be protected as the law is written. This is different from the Court, where private deliberations do not threaten regional security, and thus cannot be withheld on those grounds. The nature of the court is different than the SC, and all of its actions can already be scrutinized because they are made fully in the public eye.

However - since the one of the legal functions of the Vice Delegate is to approve or deny RA applications, and that function is independent of the SC, then it could be construed that the Vice Delegate might be required to give a reasonable explanation as to a decision to deny RA membership to an applicant if they were personally charged with an offense stemming from a denial, or if someone were clever enough to ask the court to review the specific denial as to the specific reasons the VD denied the application.

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I think that in this case, asking for more reasoning from the VD would not actually accomplish anything. DD provided his reasoning for denying the two - he thought they might tamper with the election. But if you disagree with this determination
The VD already provided his reasoning for the denial, though.

Eh, nah. The VD already provided as much of his reasoning as he seems willing to give. However, since he's required to consult with the SC about it even if he ignores their recommendation, asking for the fruits of that consultation is a means of scrutinizing the actions of the VD themselves. It's very useful for citizens to know if their Vice Delegate is admitting/denying applicants in contradiction of the SC's security recommendation, or genuinely taking their thoughts into account. Voters have a vested interest in knowing if their VD makes a habit of ignoring the SC's suggestions - but they have no way of getting that information except by FOIA.

Let's take a step back here in terms of precedent.

When I was initially denied membership in the SC because someone thought I was a 'security threat', I tried legal action and was denied such action because the SC was deemed NOT to be part of the executive branch. Therefore, an FOIA request of the SC as if the SC was part of the Executive Branch is not valid.

Another approach on the part of the person making such an FOIA request that does not claim the SC is part of the Executive is needed.

Hmm, interesting.

In that case, I refer you to the second quote in my second post, from Justice Grimalkin. He declared that correspondence between the Executive and other branches is subject to FOIA.

SillyString:

Hmm, interesting.

In that case, I refer you to the second quote in my second post, from Justice Grimalkin. He declared that correspondence between the Executive and other branches is subject to FOIA.

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That would be correspondence in terms of PMs and IRC chats, not commentary in running threads.

The irony is that the contents of the thread in question only make DD look bad in terms of being arbitrary and capricious. No vote was taken by the SC on the decision nor would such a vote be relevant in DD's decisions in this matter.

That would be correspondence in terms of PMs and IRC chats, not commentary in running threads.

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Grimalkin doesn't specify PM and IRC, though, he says all correspondence. And the original request says "pm, tg, irc or any other means", which includes a forum thread.

I believe this is what we agreed upon?

Ruling of the Court of the North Pacific​

In regards to the Judicial Inquiry filed by r3naissanc3r on the Ownership Scope of the Executive Branch​

The Court took into consideration the inquiry filed here by r3naissanc3r.

The Court took into consideration the brief filed here by Grosseschnauzer.

The Court took into consideration the relevant sections of the Constitution of the North Pacific:

Article 3:

9. The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.

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Article 7:

2. Government officials are the constitutionally-mandated elected officials, any officials appointed by them as permitted by law, and members of the Security Council.
3. The executive category consists of the Delegate, Vice Delegate, Attorney General, and government officials appointed by government officials in the executive category.

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The Court took into consideration the relevant sections of the Legal Code of the North Pacific:

Regional Assembly Membership Act:

5. Forum administration will have 14 days to evaluate Regional Assembly applicants and verify that they are not using a proxy or evading a judicially-imposed penalty.The Vice Delegate will have 3 days to perform a security assessment of the applicant. All security assessments will be performed in consultation with the Security Council, and in accordance with all laws of The North Pacific.

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Freedom of Information Act:

16. The Delegate and appointed government officials will be delegated the task of informing the Assembly of any governmental action not already disclosed by the respective officers of the Executive.
17. All registered citizens residing in The North Pacific may request information from the Government through the Delegate and the designated officers of the Executive.
18. The Delegate and the designated officers of the Executive will endeavour to retrieve information requested from the different departments of the government, who are obligated to release this information provided it will not and/or does not present a threat to regional security or unduly impinge on the privacy of private citizens, and
19. Citizens which do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information in a regional court, where the Delegate and the designated officers of the Executive may present evidence that addresses any claim that release of the information impairs Regional security.
20. Information not disclosed because of issues pertaining to Regional security will be classified by the majority vote of the Court sitting as a three-member panel.
21. Information whose disclosure is deemed a security threat to the Region will be released by the affirmative vote of a majority of a three-member panel of the Court, no sooner than 2 months after the original request, once the threat no longer exists.

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The Court opines the following:

r3naissanc3r has asked the Court to clarify, for the purposes of the FOIA law, what degree of ownership the Executive Branch holds over the Security Council.

While the Constitution establishes members of the Security Council as government officials, it specifically does not include them within any of the three branches it lays out. Accordingly, they are not a part of the Executive branch and are not, in general, subject to FOIA.

The Court now turns to the specific case of the Vice Delegate.

Grosseschnauzer's brief argues that the Vice Delegate serves a dual role in the government, sometimes as a member of the Executive branch and other times as a member of the Security Council. This argument is supported by discussion within the Regional Assembly at the time the Vice Delegate's security check was originally devised.

The Court therefore carefully examined the Constitution and the Legal Code to determine if such a duality exists. Unlike the Security Council, the Vice Delegate is specified as a member of the Executive branch by the Constitution. The Vice Delegate has few required duties, and those that exist are insufficiently differentiated to classify them into separate roles. Moreover, their role as chair of the Security Council is not established within the section of the Constitution dealing with the Security Council, but rather within the section dealing with the two elected members of the Executive, the Delegate and the Vice Delegate. The Court therefore finds insufficient evidence to rule that the Vice Delegate has functions outside of their role as a member of the Executive Branch.

Additionally, on the matter of ownership, the Court finds that the author of a post owns its content, and posts made while acting as a government official are owned, more broadly, by the poster's respective branch of government.

Accordingly, given that the threads in question were begun by the Vice Delegate performing one of their Executive duties, the Court finds that the thread or threads in question have a split ownership. Those posts made by the Vice Delegate are owned by the Executive Branch, and therefore subject to public declassification under FOIA.

Because of this split ownership, the Court will take responsibility for publishing the required posts and redacting those which are exempt, following a determination of the material's privacy and regional security concerns. It must, therefore, be provided to the Court in full.

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I'm happy with this.

So... upon consideration, I don't actually support this ruling. I'd like to add in a little line at the top saying "Opinion by Romanoffia and Ator People", like what has been done in the past, and possibly draft a clearly unofficial and nonbinding dissent.

Actually, that's funny (the court opines issue as to who supports is and a dissenting opinion).

I like that!

Additionally, on the matter of ownership, the Court finds that the author of a post owns its content, and posts made while acting as a government official are owned, more broadly, by the poster's respective branch of government.

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I have to say I had to read that several times to ponder the implications, and I think it's brilliant. Of course you know, the torches and pitchforks will appear en mass claiming that SC members are government officials but that is negated by the fact of the 'respective branch of government' part. Again, effing brilliant wording.

I approve of this review determination!

Now, I'm going to go out and buy some body armor just as a safety precaution, you know.

I think being elected to the Court should come with a free suit of body armor. The peons are never happy.

I've amended the ruling slightly - I think it makes more sense for the court to issue a proper subpoena for the SC thread, and I'll do that within the original FOIA request rather than the review.

Here's the code, Roman. Feel free to post it whenever you like:

Let me read it over in detail and comment if needed in the next 4 hours or so.

OK, while I support this review, I will not vote for it for. I have my reasons.

Okay, I've rewritten this to become something I can support. Ator, Kiwi, can you take a read?

Ruling of the Court of the North Pacific​

In regards to the Judicial Inquiry filed by r3naissanc3r on the Ownership Scope of the Executive Branch

Opinion drafted by SillyString, joined by Ator People and Kiwi​

The Court took into consideration the inquiry filed here by r3naissanc3r.

The Court took into consideration the brief filed here by Grosseschnauzer.

The Court took into consideration the relevant sections of the Constitution of the North Pacific:

Article 3:

9. The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.

Click to expand...

Article 7:

2. Government officials are the constitutionally-mandated elected officials, any officials appointed by them as permitted by law, and members of the Security Council.
3. The executive category consists of the Delegate, Vice Delegate, Attorney General, and government officials appointed by government officials in the executive category.

Click to expand...

The Court took into consideration the relevant sections of the Legal Code of the North Pacific:

Regional Assembly Membership Act:

5. Forum administration will have 14 days to evaluate Regional Assembly applicants and verify that they are not using a proxy or evading a judicially-imposed penalty.The Vice Delegate will have 3 days to perform a security assessment of the applicant. All security assessments will be performed in consultation with the Security Council, and in accordance with all laws of The North Pacific.

Click to expand...

Freedom of Information Act:

16. The Delegate and appointed government officials will be delegated the task of informing the Assembly of any governmental action not already disclosed by the respective officers of the Executive.
17. All registered citizens residing in The North Pacific may request information from the Government through the Delegate and the designated officers of the Executive.
18. The Delegate and the designated officers of the Executive will endeavour to retrieve information requested from the different departments of the government, who are obligated to release this information provided it will not and/or does not present a threat to regional security or unduly impinge on the privacy of private citizens, and
19. Citizens which do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information in a regional court, where the Delegate and the designated officers of the Executive may present evidence that addresses any claim that release of the information impairs Regional security.
20. Information not disclosed because of issues pertaining to Regional security will be classified by the majority vote of the Court sitting as a three-member panel.
21. Information whose disclosure is deemed a security threat to the Region will be released by the affirmative vote of a majority of a three-member panel of the Court, no sooner than 2 months after the original request, once the threat no longer exists.

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The Court opines the following:

r3naissanc3r has asked the Court to clarify, for the purposes of the FOIA law, what degree of ownership the Executive Branch holds over the Security Council.

Grosseschnauzer's brief argues that the Vice Delegate serves a dual role in the government, sometimes as a member of the Executive branch and other times as a member of the Security Council. This argument is supported by discussion within the Regional Assembly at the time the Vice Delegate's security check was originally devised.

The Court therefore carefully examined the Constitution and the Legal Code to determine if such a duality exists. Unlike the Security Council, the Vice Delegate is unequivocally specified as a member of the Executive branch by the Constitution. This inclusion is relatively recent, following the Vice Delegate's explicit exclusion from the Executive branch, and this is a strong argument against duality.

There are counterpoints to this argument. The changes made to Article 7 of the Constitution which reclassify the Vice Delegate as an Executive Officer are focused on preventing members of TNP from holding multiple, conflicting positions. The Security Council was excluded from classification in order to continue to allow government officials of all types to join its ranks, while the Vice Delegate was included in order to acknowledge the existence of a conflict of interest between serving simultaneously in that position and in another elected role. It is possible for this conflict of interest to exist if the Vice Delegate does hold a dual role, held in the executive component, and thus acknowledging it by restricting access to multiple offices is not equivalent to rejecting duality in the position.

As for the actual duties of the Vice Delegate, Grosseschnauzer is correct in asserting that they can be classified into two categories. The first concerns the Vice Delegate's occasional duties, which normally are held by the Delegate but which fall to the Vice Delegate during any absence or vacancy of the former. Examples of this includes holding the delegacy, selecting or serving as Election Commissioners, and serving as deputy Attorney General. The second concerns the Vice Delegate's own duties which they always hold, and include administrative functions related to the Security Council's membership and functions as well as doing a security check on Regional Assembly applicants. The question for the Court is whether both aspects of these are executive in nature.

A compelling argument found in the Legal Code is this clause:

18. During any period when serving as acting Delegate, the Vice Delegate will be considered absent from the office of Vice Delegate.

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To rephrase in a manner more applicable to this question, according to the law, when the former category of duties moves from potential responsibility to actual responsibility, the Vice Delegate is relieved of responsibility for their stand-alone duties to the Security Council. The law envisions a difference between the nature of these two categories, which can comfortably be accommodated in potentiality but which cannot coexist in actuality.

The Court therefore opines that the Vice Delegate has functions both inside and outside of the Executive Branch.

As for the Security Council itself, its status likewise cannot be determined solely from Article 7 of the Constitution. Given that the Chair of the Security Council holds that power only in the absence of holding executive authority, the Court opines that the Security Council is not categorized under the Executive Branch. Given that, and given that the Delegate has no legal authority over the Security Council with which to compel it to release information, the Court opines that the Security Council is not subject to the Freedom of Information Act as written.

As an additional finding, on the matter of ownership, the Court finds that the author of a post owns its content, and posts made while acting in one's capacity as a government official are owned, more broadly, by the respective branch of government within which that capacity falls.

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I can agree.

I agree - well written.