See, I was hoping you'd take that post as a brief so I didn't have to rewrite everything.
As a note, I have plagiarized liberally from my previous posts. Sue me.
In answer to Kiwi's question, I would like to present an argument to the court that the judicial branch is not covered by the FOIA law, by arguing that it was only intended and written to apply to the executive branch. There are several components to this argument, which individually are insufficient to establish the answer definitively one way or the other, but which in combination paint a very clear picture.
There are three overarching elements - the law itself, the context in which it was written, and the potential implications it has.
The Law
Clause 15 of this law states,
15. 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.
As worded, this clearly bounds the expectations of disclosure. It explicitly makes reference to governmental action, and names only executive officers who have a duty to disclose. Additionally, the limited scope of this clause was deliberately established - it is not through quirk of interpretation or unclear wording that this only includes Executive officials; they are explicitly chosen and named.
It makes no mention of disclosure by the other branches of government, or the officials thereof. And indeed, the necessity for such disclosure could not arise. It is impossible for the RA to hold a private vote of which its members are unaware, and it is impossible for the court to issue a secret verdict that the region cannot access - even in the case of private RA deliberations and a sealed trial, if such were to occur, the resulting action would still necessarily be public - and voting and verdicts are the only
actions which the legislative and judicial branches respectively can take. The executive branch, on the other hand, has much greater freedom of action - it controls foreign affairs, the military, and the intelligence agency, all of which have a much higher need for secrecy and, accordingly, require a legal provision for overriding that secrecy when it is in the interests of the common citizen to do so.
The clause also references information not yet disclosed by the
respective Executive officer - that is, respective to the category of the action. While an undisclosed military operation does have a respective Executive officer, namely the Minister of Defense, there exists no Executive officer with respect to the Legislature or to the Judiciary (The AG, while an Executive Officer, exists with respect to the AG's office and not the Court proper).
Clause 16 says,
16. All registered citizens residing in The North Pacific may request information from the Government through the Delegate and the designated officers of the Executive.
Taken alone, this could be interpreted quite broadly. However, given the context in which it appears, it is far more limited than it might otherwise be. Following directly after an establishment of the Executive branch's duty to keep the public informed, this clause clearly is intended to create a method for the RA to hold an executive responsible who fails to abide by the transparency obligation.
This is made even more clear from the choice of wording within the clause - the capitalization of Government, in combination with another explicit reference to Executive officials only, sets up a clear conformity with the British English meaning of "Executive Branch" and not the system as a whole.
The use of government is uncertain - this I will concede. Owing, I believe, to the mixed British and American membership in the region, the Constibillocode is inconsistent with its usage. In recent times, we have swung toward the American usage of the term, with the vast majority of instances of "government" clearly encompassing all three branches. However, if one consults the Legal Code, there are three references to "Government" (capitalized, yes) which are obviously the British meaning - 1.5.20, 3.3.8, and 3.3.10. That is to say, there are certainly instances in the Constibillocode where the Executive-branch meaning is used, and it being read as such here would not be the sole (and therefore nonsensical) exception to the rule.
Similarly, like the use of "respective" in the previous clause, clauses 16 and 17 both make reference to "designated" executive officers - which still do not exist for the two other branches of government.
Clause 17 says,
17. 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
Again, just like the two preceding clauses, this references only officials of the executive branch in its obligations. Additionally, the specification of regional security restricts the context away from both legislative and court functions - because of the inherently public nature of votes and verdicts, regional security does not enter into consideration.
Moreover, the use of the word "departments" is telling. While it is not used anywhere else in the Constibillocode, it was nevertheless deliberately chosen and there is a great deal of information in its meaning. A department is something with a specific scope that is nevertheless subordinate to a central authority - The Judiciary and the Legislature are branches of government, but they are not departments; they are subordinate to no single figure, and in the real world, one never hears "department" used to refer to a branch of government.
Rather, departments is an appropriate term to use to refer to executive subdivisions, which clearly do fit within the linguistic scope of the term. In the US, you can find State, Justice, Homeland Security, etc - whose functions are independent of one another, but whose leadership is all subordinate and responsible to a single, central, Executive head. In other contexts the word is used, as in "department store", the same principle can be seen - the various departments all deal with different categories of product, and may have separate management and staff, but those department managers all answer to a central store manager, by whom they are also likely hired.
In no context whatsoever that I can think of is the word "department" ever used to indicate subdivisions which are controlled by a central document, which would be the only way to consider the legislature and the judiciary as departments of the government. It is far more reasonable to interpret its usage in the FOIA law in a way which is in line with both the existing semantic scope of the word as well as the general gist of the rest of the law, rather than one which supposes that the authors deliberately coined a brand new usage of the term without defining it.
The rest of the section (Clauses 18-20) deals with issues relating to regional security exemptions from the law, which calls upon the Delegate and Executive officers to argue the case for security before a private court. This goes back to the previous point made, where the scope of this entire section clearly points to the Executive branch alone. In addition, the fact that this case is made to the standard court indicates that the Judicial branch cannot possibly have been involved earlier in the process - for it to have been the target of an initial FOIA request would represent a blatant conflict of interest later, and require the selection of an entire court of THOs - an absurd situation.
The Context
It is worthwhile to examine the context in which this law was written, discussed, and pased, to see what extra information can be gleaned.
This originally rose out of a policy of the
Department of Internal Affairs (the only other official reference to "department" that I can find), and was codified into law. The discussion thread about it, which can be found
here, contains several important elements.
Mr Sniffles, who introduced the bill, had as a main concern the ability to check the power of the executive branch and hold it accountable. He said, "I think this legislation is needed now more than ever since there is no Minister of Communications and the cabinet is handpicked by the executive. We need a check and balance, this is one of my many responses."
The original legislation, moreover, made reference to the "CLO" - a now-defunct body consisting of, I believe, the Speaker of the RA and three elected ministers - whose sole purpose was to review
executive actions. It was the CLO who had the responsibility of ruling on the "regional security" aspect of FOIA requests.
"Department" has also never been used in TNP to refer to the RA or the court - in searches on the term, we find people referring to the FA department, the WA department, the communications department, and so on, but not to the RA or the court. This serves to further strengthen the previous claim regarding the semantic scope of the term - if it has not been used in a particular way in the past, and has not been defined to mean that thing, we should interpret it in a familiar, not novel, way.
The Implications
Precedentally speaking, there are gigantic risks associated with ruling that the court falls under the FOIA law. If it does, then any and all court deliberations at any time can be forced into the public eye. The court was established with a private discussion chamber for a reason - it is important for the administration of justice that its members have the freedom to speak candidly to one another without excessive concern about public backlash for taking unpopular positions. Placing the court under the jurisdiction of FOIA, however, removes that privilege, and prejudices all future deliberations. Justices will be under pressure to consider how their words will reflect on them, and their re-electability, if made public, and not to apply the best justice they can.
This clearly presents a major risk of a gross miscarriage of justice in the future, and accordingly, the court should be inclined from the beginning to rule against any interpretation of the FOIA law that would include the court or the RA under its jurisdiction. Only if no other interpretation is deemed possible should it even be considered.
I thank the Court for its consideration, and apologize for the height of this wall.
