[R4R] Regarding "On Freedom of Information Requests against the Judiciary"

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
Previous court ruling number 35, On Freedom of Information Requests against the Judiciary.

2. What portions of the Constitution, Bill of Rights, Legal Code, or other legal document do you believe has been violated by the above? How so?

Section 7.4 Clause 27 of the Legal Code:

For the purposes of this section "the government" refers to the Delegate and the Executive Officers, including the departments which they oversee, the Vice Delegate and Security Council, and the Speaker's office.

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Section 7.4 Clause 34 of the Legal Code:

For the purposes of this section, "government records" are those which are kept on any platform utilized by the government and are open to members of the government and anyone assisting them.

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At the time of ruling, standing law in former Section 6.2 (now Section 7.4) of the Legal Code required Freedom of Information Act (FOIA) requests only apply to information belonging to the Executive Branch as detailed by the court. Amendments to the legal code have altered this reality, now rendering all information as defined in Clause 27 above to be eligible for FOIA request unless classified. The key difference being the inclusion of the Speaker’s Office in the currently standing Legal Code.

The target ruling requires the Court only comply with FOIA law to the extent of requested information belonging to the Executive branch, which plainly contradicts currently existing clauses of Section 7.4 of the Legal Code above.

To briefly address an additional matter, I draw attention to the following text in the ruling:

Private deliberations of the Court are exempt from any and all FOIA requests, and publication of such private deliberations is absolutely prohibited under any and all circumstances.

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The court has, on many occasions since this ruling, published their private discussions and deliberations for public viewing, which can be found in the Declassified Justice Archive. This is an obvious violation of the target ruling, which strictly prohibits this behavior with absolutely no room for alternative interpretations. Given the court has continuously published these private deliberations for nearly a decade, the court has effectively overturned this portion of the ruling in all ways but by official ruling by simply ignoring it.


3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?
Previous court ruling number 41, On the Physical Representation of Outdated Rulings on Requests for Review, establishes the ability for Requests for Review (R4R) rulings to result in the overruling of previous court rulings, as is being proposed in this R4R.

Previous court ruling number 77, On the Reconsideration of the Time at Which Oaths Become Binding, serves as an example of the court striking down only a portion of a previous ruling.

Previous court ruling number 66, On the Regulation of the Regional Message Board, serves as an example of the court striking down a previous ruling based on the continuous actions of the court in contrast to what the ruling effectively established, detailed specifically under "On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition"

4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated.
Standing derived by my position as Court Examiner, defined in Legal Code Section 3.6, Clause 34: "The Court Examiner will have standing in all cases of judicial review brought before the Court."

5. Is there a compelling regional interest in resolving your request? If so, explain why it is in the interest of the region as whole for your request to be decided now.
This request intends to address a contradiction between standing legal code and a previous court ruling, intending to correct the record for ease of understanding and maintaining legally sound precedence. This is firmly in the interest of the region as the clear contradictions between legal code and court ruling can damage the integrity of the legal precedence the judicial system is built upon.

This request includes a review of the court’s conduct with respect to a portion of the ruling. The court has, knowingly or unknowingly, repeatedly violated the ruling by publishing private deliberations and discussions for public viewing. While the court likely did not do this out of malice, it is in the interest of the region to rectify this by altering behavior or striking out the targeted portion of the ruling.

6. Do you have any further information you wish to submit to the Court with your request?
No

The Court accepts this request for review, and I will serve as the Moderating Justice. The Court does not recognize any responsible government official to be recognized as respondent, given this is a Court decision under review.

At this time the Court will accept briefs from any interested party, until five days from this post.

I submit to the court the following brief.

To the Honorable Justices of The Court of The North Pacific:

I am writing to you to detail why the original ruling in consideration (#35) ought to be upheld in part and struck down in part.

I identify four particular reasons for this. (1) The Court is elected while simultaneously being responsible for all judicial review, even of controversial or scandalous cases that may otherwise threaten to damage the social fabric of the region were it not for trust placed in The Court. (2) The Court is tasked with presiding over criminal cases, involving defendants, and freedom of information may present a due process violation of civil liberties for said persons. (3) Some presented arguments about Section 7.4 of the legal code by the Court Examiner are factually incorrect. (4) Some presented arguments about the Court’s behavior are not based on substantially equivalent precedent.

The Court being beholden to voters and yet being tasked with difficult decisions presents a dilemma: how is one to speak candidly in private about cases under their purview, knowing that any court proceedings may be publicized and thus subject to the scrutiny of the electorate? It is not reasonable to expect this standard of an institution that is tasked with the most honorable duty of resolving disputes that cannot be resolved via other means. These disputes will often inherently cause Justices to make statements that outside the context of court might be considered hurtful, and thus damage their reputation going into an election. It is not difficult to imagine the corruption that might unfold with a Court subject to Freedom of Information. For example, it would be child’s play to blackmail a justice with a request for such information, when that justice may otherwise prefer to separate their office from their personality.

Subjecting the Court to Freedom of Information would violate due process rights of individual citizens per Clause 9 of the Bill of Rights:

“No action by the governmental authorities of the region and its territories shall deny to any Nation of The North Pacific and its territories, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific and its territories the equal and fair treatment and protection of the provisions of the Constitution.”

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It would be a governmental authority fulfilling a Freedom of Information request on behalf of the court, and no current clause within the legal code prohibits information from being distributed based on its sensitivity to defendants. A consequence of this is that through revelation of any such sensitive information via private court documents requested, privacy rights of individual citizens and residents will be violated without a true due process of law. Such information becoming public may jeopardize any ongoing trial, and thus in no sense of the phrase constitutes due process. Therefore, even if The Court has been releasing private court documents, it is absurd to believe the legal code requires such releases, given the potential for harm, and in general the Court should be careful that any such releases do not constitute a due process violation. In this sense, the ruling that it is never acceptable for The Court to release private proceedings as such is overly strict; as long as no due process violation is evident, there is no legal issue with releasing such information, such releases are merely subject to the internal policy of The Court.

It is not true, furthermore, that Section 7.4, Clause 34, refers to the court. The private court deliberations are not something the government (as defined in Clause 27) would have access to by virtue of government office alone, and therefore their location is not a platform for the government, but rather merely the court. This also is made evident by the fact that the law at the time of the original ruling had a similar scope to the current law in terms of its effective definition of the government, in the sense they both broadly refer to the government while only meaning a subset of the full government of The North Pacific per The Constitution. In fact, the original code was less explicit in this regard by referring vaguely only to ‘governmental action’, and yet it was sufficient to rule on. Compare:

Legal Code 7.4.27: “For the purposes of this section "the government" refers to the Delegate and the Executive Officers, including the departments which they oversee, the Vice Delegate and Security Council, and the Speaker's office.”

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Prior Legal Code 6.2.16: “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.”

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Finally, while it is certainly true that at times a common practice can be made legal by virtue of falling out of practice, the effect of Ruling #66 is substantially different in its effect from the proposed remedy in this case: in the case of #66, successive caveats to a doctrine were made in a legally complex and broad subject area in a way that materially caused the subject area’s legal substrate to change. Here, this is not the case: publishing internal court proceedings, while a matter of the court, is not a matter of case law, and therefore is not grounds in itself for overturning doctrine. Poor official practice alone, in other words, is not an excuse for overturning laws.

I once again urge The Court to uphold its original decision in part, with the exception to the upholding being as follows, from the last paragraph of Ruling #35:
Private deliberations of the Court are exempt from any and all FOIA requests, and publication of such private deliberations is absolutely prohibited under any and all circumstances with respect to criminal trials. Though it is otherwise permissible, this should not be construed to suggest the current law requires any publication of private court documents.

Your honours,

I will not focus on what could be considered the primary question of this request for review - concerning the expansion of the Freedom of Information Act to cover the Speaker's records - because I think that is a very clear case of a Court decision being rendered obsolete by statute. Instead, I will focus on the question of the initial ruling which prohibits the publication of private judicial records.

The ruling On Freedom of Information Requests against the Judiciary ("the 2014 ruling") expounds at length on its reasons for barring requests under the Freedom of Information Act against the Judicial branch, and for further prohibiting the release of sealed Judicial branch documents under any circumstances. In essence, there are two separate elements to the ruling. First, it specifies that the Freedom of Information Act does not apply to the Judicial branch. Second, it requires that Judicial branch documents may not be released to the public under any circumstances. These are two separate issues which must be considered in turn.

Needless to say, it is evident from the statute that the Freedom of Information Act does not apply to the Judicial branch. The Act requires the release to the public (i.e. all residents) of certain records which meet specified conditions. The clause (in chapter 7 of the Legal Code) which enacts this, clause 36, compels the release of "private government records." They, according to clause 35, are "those [government records] which are kept on any platform utilized by the government [...]" – the preceding clause is the definition of "government records," so the word "those" evidently refers to them. In turn, "government records" are those which are "kept on any platform utilized by the government and are open to members of the government and anyone assisting them" (clause 34.) While the scope of what a platform "utilized by the government" is remains somewhat ambiguous (e.g. is the forum considered one platform, and does it thus meet the definition?), the second requirement, that only members of the government be able to access the records, makes this irrelevant. That is because the government, for the purposes of the Freedom of Information Act, is "the Delegate and the Executive Officers, including the departments which they oversee, the Vice Delegate and Security Council, and the Speaker's office" (clause 27.) Needless to say, this list excludes the Court, and being outside the definition of government, its records are not within the scope of the Freedom of Information Act.

Does the law forbid the publication of private Judicial records under any circumstance?

The core issue in contention in this case is whether the law forbids the publication of private Judicial branch records, under any circumstances. The 2014 ruling submits that allowing the publication of private Judicial branch records would cause Justices to place undue weight on the political consequences of their arguments in chambers becoming public, which would prejudice the trial. Second, the ruling submits that the confidentiality of Judicial records is recognized by custom and should thereby be upheld as law. Conversely, in his submission, the petitioner submits that the Court has repeatedly published its own internal records, thereby effectively overturning the 2014 ruling by making it irrelevant.

The second point – that "[t]he privacy of court deliberations has always been recognized and protected in The North Pacific" – is easily dismissed. It argues a matter of customary law. A legal custom exists where a certain legal practice is universally observed and universally agreed to be legally binding. In this case, the 2014 ruling suggests exactly that – that it is universally recognized that judicial records are protected and may never be published. Even if that was the case in 2014, it is no longer the case today, because any legal custom that did exist has been overturned by secondary legislation.

The Constitution grants legitimacy to all laws, including the Bill of Rights, statutory law (i.e. the Legal Code), and Court rulings. This also extends to secondary legislation, which is legislation made on the basis of delegated authority from primary legislation (constitutional and statute law.) For example, in real life, the Canadian Radio-television and Telecommunications Commission has the ability to regulate broadcasting and telecommunications in Canada – these regulations are secondary legislation – on the basis of the Broadcasting Act, which is a law passed by the Canadian Parliament (primary legislation.) In The North Pacific, the Constitution authorizes "[g]overnment bodies [to] create rules for their own governance subordinate to this constitution and the laws'' (article 6.15.) Effectively, this grants all government institutions in The North Pacific the power to regulate, by secondary legislation, their own internal procedures. For the Court, this is the Court Rules and Procedures. Chapter 6 of this document establishes the procedure for the Court to release its own private records.

We have to consider all primary and secondary legislation as having supremacy over customary law, because it is directly created by institutions empowered by the Constitution such as the Regional Assembly. Otherwise, the regional government would be in the absurd position of being unable to alter many legal practices just because they were widely considered to be black-letter law. That scenario is obviously absurd and contrary to the Constitution, which grants sweeping legislative powers to govern, and indeed, change, the affairs of the region. When legislation contradicts customary law – and, if we accept the 2014 ruling's argument about the existence of a legal custom, it does – the legislation must always hold force over the custom.

Therefore, even if, at the time of the 2014 ruling, there was an arguable customary law case for the classification in perpetuity of Judicial records, that legal custom has since been overturned by the Court Rules and Procedures.

The 2014 argument's first argument, which raises a valid point of constitutional law, is on stronger ground, but is still much weaker than the ruling asserts. First, it should be emphasized that, while the argument does have a basis in law, the 2014 ruling articulates it very poorly. Rather than citing any legislation or case law, it expounds at length on matters of principle without even discussing connections to any source of law. Despite this, in its claim that "Justices are encumbered with [...] determining the guilt or innocence of an accused party, and of debating the particulars of points of law, in a way which is as impartial [...]," and, more broadly, in its heavy focus on impartiality, it connects to article 7 of the Bill of Rights. Article 7 guarantees to all resident criminal defendants "a fair, impartial, and public trial." It could be argued that, for the reasons outlined in the 2014 ruling, the release of private Judicial records could compromise the rights of defendants to an impartial trial.

In its opinion, the Court (in the 2014 ruling) claims, "[k]nowing that their preliminary thoughts and arguments could be made public, Justices would likely be pressured to tailor their posts to fit with political sensibilities." In effect, the publication of private discussions among the Justices would cause those Justices to, rather than speak in full frankness, constrain themselves, for fear of adverse domestic political consequences when their words become public. Although this is unquestionably an issue which could undermine the impartiality of the Court in a criminal trial, thereby violating the Bill of Rights, the 2014 ruling's argument for a full publication ban does not hold water. First, it is not remotely true that all judicial records are associated with criminal trials. Indeed, criminal cases are relatively rare. Most notably, the Court also sits in judgement of requests for judicial review; additionally, the Court must periodically discuss the election of the Chief Justice and the appointment of two Bar Commissioners. A brief look at the Declassified Justice Archive easily demonstrates this fact; the vast majority of private Judicial records have nothing to do with the criminal cases the Bill of Rights requires to be impartial. Moreover, many records do not even relate to Court cases at all; many are merely administrative and do not even fall within the scope of the 2014 ruling's argument.

Second, even in relation to criminal cases, there is no case to keep Court records private in perpetuity. Even if the Justices are concerned about political retribution for what they say in chambers, at the end of the case, they are still required to produce a public verdict, with an attached rationale – there is no escaping accountability for that. In addition, the Regional Assembly is the body which determines whether Justices will remain in office. While there are undeniably scenarios in which the Court could be called upon to investigate the behaviour of members of the bench – for example, during a criminal investigation – in general, the determination of whether a Justice has upheld standards for office should be, and is, made by the Regional Assembly in judicial elections. This is a core element of the constitutional framework of The North Pacific, and questions of political influence must be balanced against the need for the Regional Assembly to properly fulfil its role as the institution that selects Justices. It is therefore in the public interest for the public – and thereby, the Regional Assembly – to have a reasonable level of judicial transparency, so long as this does not compromise the integrity of ongoing proceedings. It is impossible to shield Justices entirely from accountability for their opinions on the bench. It is therefore unreasonable, when considering whether or not a trial is impartial, to uphold the 2014 ruling's standard that Justices should be wholly shielded from potential public backlash.

Nonetheless, while the Regional Assembly does have a legitimate constitutional role in the selection of Justices, this does not constitute an argument for complete transparency. The basic rights the Bill of Rights guarantees to defendants are supreme over any arguments about the public interest. In order for a trial to be impartial, Justices must be protected from the adverse political consequences of their opinions on matters of fact and law while the trial is ongoing – otherwise, domestic political interference could change the course of a trial in a prejudicial way. A trial during which the presiding Justice was subject to recall proceedings because their view, expressed in chambers, on a matter of law became public during the trial would be more closer to a trial by the Regional Assembly than a legitimate judicial proceeding. However, political matters which may unfold after publishing the verdict (even assuming that the Justice's words in chambers were released immediately, which is not the Court's practice) are mere hypothetical questions, rather than matters which could directly alter the conduct of the judicial process. Although it is possible that they may weigh on the minds of Justices, the Justices may (and must) uphold their commitment to the law and disregard them. On the other hand, the possibilities of direct interference in an ongoing trial are very real, and not something that a Justice can simply elect to ignore as a part of their duty as an impartial adjudicator.

It should also be made clear that associated proceedings to a criminal case besides the trial – such as requests for review attached to a criminal trial – must be held to the same Bill of Rights standards as the trial itself. Those proceedings effectively serve as the defendant's avenues for appeal against the decisions of the Court; a trial where the defendant cannot appeal adverse decisions by the Court is manifestly unfair. Likewise, an appeal that is compromised by domestic political influence inherently compromises the integrity of the trial. Therefore, judicial deliberations relating to a criminal trial, such as on any requests for review connected to it, must also be kept secret until they are all complete.

As a proviso to that, it should be noted that requests for review relating to a criminal case can arise at any time, even far into the future. Right now, the Court is reviewing a decision, albeit not a criminal one, made ten years ago. It is also typical, in criminal cases, for the parties to cite other criminal trials from years ago, given that they are highly infrequent and so the precedent to cite is limited. It would be unreasonable to force the Court to protect its records of a criminal trial for years on the chance that a future case could arise where the Court would consider the legal implications of the trial. That kind of case would not prejudice the Court in the original trial, because there is no possibility that it could affect the actual interests of the defendant.

Thus, the Court should clarify that the Bill of Rights solely compels the protection of criminal case discussions in chambers, until such time as the Court reasonably believes that proceedings which could affect the outcome of questions of fact or law decisive to the verdict or sentence have ended and will not resume.

Conclusion

The Freedom of Information Act does not apply to the Judicial branch. This portion of the ruling should remain intact.

However, the 2014 ruling is wrong to state that private Judicial records cannot be published at all. Its arguments are either incorrect or obsolete in the present day. This portion of the ruling should be overturned.

Your Lordships,

I would like to be submit my brief on the above subject as given by the Court Examiner @TlomzKrano . I have written my brief in multiple parts for the sake of brevity and convenience.

• The Court’s Previous Ruling [On Freedom of Information Requests against the Judiciary]
• Court’s behaviour since the ruling and discussion on Right to Freedom of Expression and Right to privacy
• Potential Course of Action which may be taken by the Court.

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On Freedom of Information Requests against the Judiciary

First, let us discuss what the “On Freedom of Information Requests against the Judiciary” ruling established. The court took into consideration the FOIA act and was presented with the question whether the Court itself is subjected to the act or not. I would also provide my opinion on the ruling alongside.

Your Lordships play a very important role in imparting justice to the people in an impartial and fair way. If the private deliberations amongst the Justices were to be subjected to FOIA act, interested parties involved in a judicial issue might get informed beforehand on the opinions of the Justices and try to influence the minds by the merit of their influence or power of the office which they hold. The justices will be forced to tread carefully so as to not hurt the sentiments of anyone. This marks a clear departure to the fair and due process of the judicial process as indicated by The Bill of Rights clause 9,

“Each Nation in The North Pacific and its territories is guaranteed the organization and operation of the governmental authorities of the region and its territories on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region and its territories shall deny to any Nation of The North Pacific and its territories, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific and its territories the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.”

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In the Court ruling, the justices ruled that all private deliberations of the Court are not subjected to FOIA law and are exempted in any or all circumstances.

The thoughts and opinions of the justices must be given a space not devoid of privacy so as to provide a judgement most fair. The ruling, if overturned, will lead to gross violation of the principles of justice and equality and severely affects the integrity of the judicial process here at TNP.

Court’s behaviour since the ruling

Despite that, the Court and its justices, again and again have published private chats on public forums as discussed by @TlomzKrano . This leads to a contradiction because:

1. The Court (or its justices) by publishing their private deliberations in public in turn violated the Court’s Ruling.
2. A question also arises that whether chats/talks between the Justices and the Delegate and government officials are subjected to the FOIA. Since the Previous ruling focused only on the Deliberation within the Court as stated, “The question before the Court is whether the Judicial branch is subject to the FOIA law, or more specifically, whether the private deliberations of the Court are subject to release upon request.” It seems there is no discussion on the matter whether chats/deliberations between the Court and the Government are subjected to the FOIA or not.

Let’s start with the first one:

I would like to take a excerpt from the ruling, “On Freedom of Information Requests against the Judiciary”.

“Knowing that their preliminary thoughts and arguments could be made public, Justices would likely be pressured to tailor their posts to fit with political sensibilities and not ruffle prominent political feathers. There would also be pressure to take into account the opinions of prominent members of the region and render final decisions in accordance with their interests, rather than relying on the opinions of the members of the Court and pursuing the path of justice.”

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The above statement clearly highlights the fact that how the publishing private chats of the Court could affect the Due process of law in turn violating clause 9 of The Bill of Rights which states,

“Each Nation in The North Pacific and its territories is guaranteed the organization and operation of the governmental authorities of the region and its territories on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region and its territories shall deny to any Nation of The North Pacific and its territories, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific and its territories the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.”

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Every judgement of this Esteemed Court undergoes an intensive deliberation for it bears a huge responsibility. If we were to overturn the ruling and allow private thoughts and arguments of the Justices to be made public, this would grossly violate freedom of expression of Your Lordships and would deprive the freedom to discuss judicial issues without any pressure or bias from prominent members of the region. While arguments can be made in defense or against the accused or defendant during the deliberation process, only the final judgement of the court matters. But for the final judgement to come to fruition, intensive discussion without any undue influence is required. I ask the Court for the reasons stated above, the previous ruling shall not be overturned.

It is, in fact, true that the Court, over the next decade that is from 2014 till 2024, the members of the Court continued revealing the private conversations violating the ruling every time they did. @TlomzKrano states rightly so,

“The court has, on many occasions since this ruling, published their private discussions and deliberations for public viewing, which can be found in the Declassified Justice Archive. This is an obvious violation of the target ruling, which strictly prohibits this behaviour with absolutely no room for alternative interpretations. Given the court has continuously published these private deliberations for nearly a decade, the court has effectively overturned this portion of the ruling in all ways but by official ruling by simply ignoring it.”

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While it may be out of ignorance or lack of discussion amongst the people of the Court, there was, with no doubt, a violation of the Ruling made by this Court. The course of action, that should be taken, I, humbly leave it to the wisdom of the Court.

There’s another ruling which I would like to direct Your Lordships’ attention. Please take a look at the ruling, “On Justices as Government Officials”. In this ruling, the Court ruled that Justices are Government officials. I would like to take an excerpt from the ruling.

“The question before the Court is to determine if Justices are government officials. This question is most directly answered by looking at Article 6 of the Constitution. This notes that “government officials” must maintain membership in the Regional Assembly, and that any election candidate must be a Regional Assembly member for 15 days before the opening of nominations. Because these requirements are included within the same clause, this Court believes that they should be considered together and linked. Justices are elected positions, as is made clear in Article 4 of the Constitution and in Chapter 4 of the Legal Code. Article 6.1 also makes clear that government officials are positions above and beyond just an RA member. In other places in the Constitution and Legal Code (namely, Article 6.3 of the Constitution, and during various parts of Article 4 in the Legal Code, as well as possibly others), Justices and other Judicial posts are included with but also defined separately from the other branches of governance. Specifically, Article 7.3 separates government officials into three categories: legislative, executive and judicial. To this end, the Court finds that all members that have elected extra-Regional Assembly offices are government officials.”

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There’s another ruling called “On the Definition of Government Officials” and I would like to mention an excerpt which states that,

“Article 6 of the Constitution notes that all government officials shall swear an oath of office. This oath is the requirement to assume a position giving the officeholder authority and powers beyond the ability to introduce legislation and vote in elections which are conferred to members of the Regional Assembly.”

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Since we have now deduced from the above that Justices are Government Officials, I would like to direct your attention towards the FOIA act section 7.4 clause 27 which states,

“For the purposes of this section "the government" refers to the Delegate and the Executive Officers, including the departments which they oversee, the Vice Delegate and Security Council, and the Speaker's office.”

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The Court ruling, “On Freedom of Information Requests against the Judiciary” took this clause of the FOIA act into consideration (which of course has now been amended but the intention of the Court back then is of paramount importance here in making my point.”

“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.”

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There’s a clear conflict between the previous rulings and FOIA act. I humbly urge the Court to either overturn a part of or the entirety of the previous ruling(s) and also provide more clarification “On Justices as Government Officials.”

Let us discuss the second point now.

Before getting into this in detail, let us first discuss the relationship between the Court and the TNP government here. The Government as described by the Court in the ruling, “On the Scope of Clause 9 of the Bill of Rights”,

“The Court in reviewing the term "Government Authorities" hereby establishes a "Government Authority" is any elected or appointed office of the North Pacific and not the individual being elected as the Court eluded to in our first ruling on the matter.”

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The justices of the Court, elected by the citizens of TNP are bound by pretty much the same rules and regulation as the government officials of the government with variation existing of course. It might seem there’s a difference on first glance but the Court in the Ruling on, “On Justices as Government Officials” stated,

“With respect to flemingovia's direct question around Astarial's candidacy, the Court opines that at first glance these two clauses could intimate that “government officials” do not include Court Justices. However, within the context of the Legal Code there does not appear to be such an inconsistency. With regards to Legal Code Section 2, Clause 12, the distinction is clearly more of a practical nature, as the Justices will not be the party filing and indictment – the indictment is filed by the 'executive' office. Further, with regards to Section 1, Clause 17, this is a combination of a clarification of the different branches of government, as well as a practical consideration. In this case, the two separate branches are Government and Court.”

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I might go on a stretch to say that the relationship is interdependent. The Executive depends on the Court’s expertise on the interpretations of the Constitution and the legal code.

Are private discussions of an ongoing judicial case amongst the Court members (government officials of the Court) being subjected to FOIA illegal? Yes, we have already established that. Are private discussions between the members of the Court and the Government officials of the Executive about an ongoing judicial case being subjected to FOIA violative of any legal code or past rulings? No.

The court on the ruling, “On Freedom of Information Requests against the Judiciary” only ruled about the deliberations amongst the judges ONLY.

“It is therefore the decision of the Court that the FOIA law may only be used to request information belonging to the Executive branch. Private deliberations of the Court are exempt from any and all FOIA requests, and publication of such private deliberations is absolutely prohibited under any and all circumstances.”

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Are private discussions between the members of the Court and the Government officials of the TNP subject to FOIA act? Yes. This is what the FOIA act says,

Section 7.4 clause 37, “At any time a resident may request the release of any government record or private government record through the appropriate officers.”

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Section 7.4 clause 28, “For the purposes of this section, “appropriate officers” are those officers responsible for the types of records being requested or released.”

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Therefore, in my opinion, the private discussion between members of the Court and the government are subject to FOIA act and does not violate the Court’s ruling, “On Freedom of Information Requests against the Judiciary”.

I humbly ask Your lordships to provide further and much needed clarification on such matters as stated above.

Potential Course of Action

Now, the question arises, Your Lordships, what could be the potential course of action? In my humble opinion, I believe the court should do the following.

First, the Court might(must) acknowledge that there was a plain disregard for its own ruling in the matter as stated by the Court Examiner @TlomzKrano but should also affirm that it might not have been out of the justices’ personal interest. An excerpt of the R4R states just that,

“The court has, knowingly or unknowingly, repeatedly violated the ruling by publishing private deliberations and discussions for public viewing. While the court likely did not do this out of malice, it is in the interest of the region to rectify this by altering behaviour or striking out the targeted portion of the ruling.”

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The Court must clarify its position on FOIA act applying on government officials and the dynamic relationship between the members of the Court and government officials of the Executive. Since Justices are, indeed, government officials as stated by "On Justices as Government Officials", I, in my opinion, feel that there is a need to revisit the old rulings and make necessary amendments or provide clarification on certain part of the ruling(s) if need be.

I firmly believe, this Esteemed Court should continue to uphold the previous ruling on “On Freedom of Information Requests against the Judiciary” since Privacy in deliberations among the Justices related to judicial issues should be protected. If not, I am afraid the judicial integrity of the TNP court will be compromised.

I thank Your Lordships for giving me your valuable time.

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Brief

If it pleases the Court, I would submit the following brief.

This request raises two issues in relation to the Court's prior Opinion On Freedom of Information Requests Against the Judiciary ("the Official Opinion"): that the law has been amended such that the statements in it as to what is now section 7.4 of the Legal Code being limited to requests against the executive branch no longer reflects the law; and, that the statements as to the permissibility of the release of judicial discussions were wrong in law or that the Court's practice of releasing its discussions is wrong in law (it is suggested the request is unclear as to which is said to be pursued).

This brief will submit that as to the first limb of the request, the Legal Code has now moved on such that certain statements in the Official Opinion do not reflect the law but that it remains correct as to the application of the Code to the Court. As to the second limb, it will be submitted that the Court should conclude that that portion of the decision was wrong in law at the time it was made and should be overruled, to the extent that the Court held that no Court discussions were liable to release by any means.

General Application of the Freedom of Information Act

The Court held in the Official Opinion that then Freedom of Information Act in section 6.2 of the Legal Code was applicable to the executive branch only and the Court proceeded on this basis in its Opinion On Content Ownership and Freedom of Information Requests against the Security Council. The law at the time of the Official Opinion required that "Delegate and appointed government officials" inform the Regional Assembly of matters not "disclosed by the respective officers of the Executive" and for requests by citizens (the term then in use for those who would now be called residents) to be responded to by "the Delegate and the designated officers of the Executive", who would retrieve information from "the different departments of the government" and, if necessary, would defend a refusal to release information in proceedings before the Court.

Sillystring, in the proceedings leading to the Official Opinion, presented a brief setting out the reasons why the language of the law, the context of its adoption, and the consequences of its application to the judiciary pointed towards its application being limited to the executive branch. For the reasons she submitted, it is suggested that it is apparent that the law then in force was limited only to the executive branch and that the Court was correct so to hold.

The law has, however, been amended since. It now expressly defines its application as being to "the government" meaning "the Delegate and the Executive Officers, including the departments which they oversee, the Vice Delegate and Security Council, and the Speaker's office". That is a clear and deliberate expansion of the law by the Regional Assembly to capture other regional bodies within the scope of the law (and, in relation to the Security Council, to rationalise disclosure provisions by bringing it under the standard of the Freedom of Information Act rather than maintaining free-standing provisions for the Council). Consequently, insofar as the Court stated:

"[...] is intentionally restricted to apply the Executive branch alone, [...]

It is therefore the decision of the Court that the FOIA law may only be used to request information belonging to the Executive branch."

This analysis is does not reflect the law as it has been amended and may be marked as defunct.

Application of the Freedom of Information Act to the Judiciary

The primary subject of the Official Opinion was as to the application of the Freedom of Information Act to the judiciary. It is submitted that the holding of the Official Opinion that it does not apply to the judiciary and the reasons for that holding remain substantially correct.

The law as now drafted is clear in its specification as to which government bodies it applies to and does not include the Court among them. There are robust reasons as to why it should be that the Court is not subject to the ordinary disclosure regime, which are set out in the Official Opinion. For those reasons, insofar as the Official Opinion holds that the Freedom of Information Act does not apply to the Court , it was right so to hold and continues to be an accurate statement of the law.

Disclosure of Court Records

The present review takes issue with the final words of the Official Opinion: "Private deliberations of the Court are exempt from any and all FOIA requests, and publication of such private deliberations is absolutely prohibited under any and all circumstances". Alternatively, it takes issue with the practice of the Court, as set out in Chapter 6 of its Rules, to disclose certain Court records. It is submitted that in holding that there is an absolute prohibition on any release of private deliberations in any and all circumstances, the Court was wrong to reach this conclusion.

As has been noted by other briefs, there are matters which the Court must decide which are not deliberations in relation to any particular case before the Court. To the extent that discussions of appointments of other officials or of amendments of the Court's Rules or other matters which do not involve the decision in a particular case would be caught within the scope of the Official Opinion's conclusion, that would not be supported by the reasoning of the Official Opinion. Such decisions do not concern the liberty of defendants before the Court or to the entitlement of petitioners for review to impartial determinations of the law. Moreover, they are matters where there is a regional interest in understanding why the Rules are adopted in the form that they are or why particular persons are chosen as government officials. The guarantee of the Bill of Rights for All Nations to "the organization and operation of the governmental authorities of the region and its territories on fundamental principles of democracy, accountability, and transparency" plainly favours such discussions being liable to publication and there is no countervailing right justifying an absolute restriction on publication.

In relation to deliberations that do concern particular cases, it is submitted that the Official Opinion does identify clear reasons as to why release of those deliberations could properly be restricted. In criminal proceedings a defendant is entitled to "a fair, impartial, and public trial before a neutral and impartial judicial officer" and in relation to requests for review a petitioner (and other parties) enjoy general rights to due process and to equal and fair treatment. Those rights could well be jeopardised if the publication of deliberations were to affect the process by which Justices reach decisions and avenues by which that could come to pass are identified in the Official Opinion.

It is submitted also that the separation of powers and the need to guard the Court against interference from other bodies and, thereby, to ensure it is able to carry out its tasks in a fair and impartial manner, may well justify a finding that the Court cannot be liable to disclosure on the same terms as other government bodies. In relation to that, it is perhaps notable that the Regional Assembly has not itself sought to bring this issue into question and has chosen to allow the Court to remain outside of the regime it has prescribed for most other government bodies.

However, the interests identified are ones that are liable to wane with the passage of time. Former Justices, whose discussions are published a year later to little public interest, are not likely have been substantially impacted by the prospect of disclosure at the time when they were sitting on the Court. Conversely, there remains a general regional interest in ensuring that the Court in its deliberations is proceeding in a fashion that accords with its functions and, in that respect, is in fact complying with the requirements of fairness in deliberations rather than merely paying them lip service in its public reasons.

Further, there may, unusually, be cases where the circumstances actively compel release in particular cases. Were it to be the case that the deliberations of the Court amounted to exculpatory evidence (for instance, were a Justice charged with gross misconduct), it is submitted that the there would be an obligation on the Court to disclose it given the Court's opinions On the Duty to Disclose Exculpatory Evidence, On the Power of the Court to Compel the Disclosure of Information, and On the Process for Declassifying Information for Use as Evidence in a Criminal Trial and the fact that, plainly, the Court could not comply with its obligation to conduct a fair trial if it knew of exculpatory evidence it withheld from a defendant.

For the above reasons, it is submitted that the holding of the Official Opinion that release of judicial deliberations can never occur cannot be right and should be overruled. However, it is submitted that there do exist strong justifications for maintaining a separate regime for disclosure for the Court as compared to other bodies of government. Those justifications may be such that it would be contrary to the requirements of the Bill of Rights for the Regional Assembly to seek to subject the Court to the same regime or, potentially, even for a regime to be prescribed by law at all, as opposed to remaining a matter for the Court's exclusive purview. As to those issues, it is submitted that they do not ultimately arise for decision in this review and that the Court need not, therefore, render a conclusive opinion upon them and should instead limit its holding to overruling that aspect of the Official Opinion and to finding that the Court's current regime for disclosure is lawful.

Conclusion

The Freedom of Information Act has been amended since the Official Opinion was rendered. Those amendments clearly mean the conclusion of the Court that the law is limited just to the executive branch is no longer an accurate description of the Legal Code and that conclusion may, therefore, be marked as defunct. In its holding that the law does not apply to the Court however, it was an remains correct. As to its further holding that judicial deliberations are absolutely prohibited from disclosure, this was and is wrong in law and ought to be overruled.

For the reasons set out in this brief, it is submitted that the Court should dispose of this review by, if it thinks fit, ordering the Official Opinion to be marked showing the relevant passages to be defunct and overruled respectively but should otherwise leave the ruling to stand and affirm it in its conclusion that the Freedom of Information Act does not apply to the Court.

Unless I can be of further assistance, those are my submissions.

EDIT: "7.2" to "7.4"

The briefing period is closed, and the Court will now begin deliberating.

As an update, the Court hopes to have an opinion delivered soon, it has found itself delayed due to the scheduling needs of the justices.

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

The Court took into consideration the legal briefs filed here by Jinkies, here by Comfed, here by SkyTheAquariusOP, and here by Zyvetskistaahn.

The Court took into consideration the relevant portion of the Bill of Rights for all Nations of The North Pacific.

9. Each Nation in The North Pacific and its territories is guaranteed the organization and operation of the governmental authorities of the region and its territories on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region and its territories shall deny to any Nation of The North Pacific and its territories, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific and its territories the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

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The Court took into consideration the relevant portion of the Legal Code of The North Pacific.

Chapter 7: Executive Government:

Section 7.4: Freedom of Information Act
27. For the purposes of this section "the government" refers to the Delegate and the Executive Officers, including the departments which they oversee, the Vice Delegate and Security Council, and the Speaker's office.
28. For the purposes of this section, “appropriate officers” are those officers responsible for the types of records being requested or released.
29. The Delegate and the designated officers of the Executive are responsible for records related to the Executive.
30. The Vice Delegate is responsible for records related to the Security Council.
31. The Speaker is responsible for records related to the Speaker's office.
32. For the purposes of this section, classified information is that which fits any of the below definitions:
• Real life information about any NationStates player from which there is a risk of inferring that player's real life identity and which has not willingly been disclosed to the public, including, but not limited to, an individual's name, IP address, physical address or location, phone number, place of employment or education, appearance, social media accounts, and other knowledge about a player, unless the player in question provides explicit consent for this information not to be considered private.
• Real life information about any NationStates player for which there exists a reasonable real life expectation of privacy or discretion, including, but not limited to, health status, both mental and physical; financial status; personal tragedies; changes in personal status such as marriage, divorce, pregnancy, birth, or death; and other similar information, unless the player in question provides explicit consent for this information not to be considered private.
• Information that, upon being made public, would jeopardize any ongoing military or intelligence operations; or jeopardize the security of units and agents participating in them, or be harmful to the diplomatic interests, military interests, or security of The North Pacific.
• Information that, upon being made public, would jeopardize Security Council operations in response to threats and attempted coups.
33. Notwithstanding any process for publication, any information which meets the criteria to be classified will not be released.
34. For the purposes of this section, "government records" are those which are kept on any platform utilized by the government and are open to members of the government and anyone assisting them.
35. For the purposes of this section, “private government records” are those which are kept on any platform utilized by the government and are restricted to only the Delegate, the designated officers of the Executive, and any other individuals granted access by the Delegate; only the Speaker, the Deputy Speakers, and any other individuals granted access by the Speaker; or only the Vice Delegate, the Security Council, and any other individuals granted access by the Vice Delegate.
36. Private government records which reach one year of age will be relocated to the appropriate Declassified Archive visible to residents.
37. At any time a resident may request the release of any government record or private government record through the appropriate officers.
38. The appropriate officers will retrieve information requested from the different departments of the government.
39. Residents who do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information to the court, where the appropriate officers may present evidence that addresses any claim that release of the information meets one or more of the acceptable criteria for classification.
40. Information appropriately not disclosed will be accepted as classified by a majority vote of the Court sitting as a three-member panel.

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The Court took into consideration the relevant portion of the Court Procedures

Chapter 6: Declassification and Privacy
Section 1: Declassification of Records
1. Private Court records, in either the Justices' private forum or the private archive, which reach one year of age will be relocated to the Declassified Justice Archive.
2. Private Court records which have reached six months of age may be released early in the same manner when requested by a Citizen.
3. Private Court records which are younger than six months but predate the sitting Court may be requested by a Citizen and released if the Court finds a compelling benefit to their publication.
4. Private Court records from within the term of the sitting Court will not be released.
5. Private Court records which pertain to open or ongoing cases will not be released, regardless of their age.
6. Records formerly owned by the Attorney General or by a Prosecutor will not be considered to be private Court records and will not be released.
Section 2: Privacy of Information
1. Information protected as private is defined as follows:
Real life information about any NationStates player from which there is a risk of inferring that player's real life identity and which has not willingly been disclosed to the public, including, but not limited to, an individual's name, IP address, physical address or location, phone number, place of employment or education, appearance, social media accounts, and other knowledge about a player, unless the player in question provides explicit consent for this information not to be considered private.
Real life information about any NationStates player for which there exists a reasonable real life expectation of privacy or discretion, including, but not limited to, health status, both mental and physical; financial status; personal tragedies; changes in personal status such as marriage, divorce, pregnancy, birth, or death; and other similar information, unless the player in question provides explicit consent for this information not to be considered private.
Information that, upon being made public, would jeopardize any ongoing military or intelligence operations; or jeopardize the security of units and agents participating in them, or be harmful to the diplomatic interests, military interests, or security of The North Pacific.
2. The Court will not release Private information during its declassification process. This may take the form of withholding a thread in its entirety, or producing a copy of of the original thread with the Private information or posts redacted.

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The Court took into consideration prior rulings by the Court here, here, here, here, here, here, here, here, here, and here.

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The Court opines the following:

On Standing
The petitioner is the Court Examiner, and enjoys universal standing for all questions before this Court. There is no question of proper standing in this case.

On the Court’s Prior Ruling
The Court is asked to reconsider a prior ruling which held that the Freedom of Information Act does not apply to the judiciary and only applies to the executive branch, and that private deliberations of the Court are not only exempt from FOIA requests, they are absolutely prohibited from being published. The Court Examiner rightly points out that since this ruling was made, the FOIA has been changed extensively and in fact applies to other government bodies, including the legislative branch and the security council. While it continues not to apply to the judiciary, the Court has as a matter of course made public its private deliberations through its own timeline of releasing records as established by the Court’s own procedure.

We agree that at the time of the ruling, the FOIA law only applied to the executive branch. The FOIA law also did not yet require disclosures after a set period of time, which is the primary way the law is applied in modern times. The Court’s position on this matter was very strongly opposed to applying the law given it was entirely concerned with citizens requesting specific information and a scheduled release of material after the fact was not yet part of the process. The Court was also concerned with balancing constitutional rights related to the proper and fair application of the Court system against the public’s right and expectation to have greater transparency from its government officials. There are legitimate dangers to compelling release of these deliberations, and any form of such disclosure would need to be careful not to risk impacting the integrity of judicial proceedings. An absolute barrier to such disclosures was certainly the most cautious approach, one that placed a high premium on constitutional rights. However, in so doing, the Court tipped the scales too far in one direction.

On Freedom of Information Requests against the Judiciary
While the FOIA still does not apply to the Court, even after its last major overhaul, the Court’s procedures have a substantially similar system for accepting FOIA requests. Regardless of how carefully constructed such a system is, it is plainly obvious that the fact it exists at all is a contradiction with the existing ruling the Court reviews today. That ruling weighed heavily the importance of impartial and well-considered judgment without concern for popular or political consequences. The Court will not pretend such sensibilities are completely absent even with robust barriers to disclosure, but protecting this process from outside prying during a trial is certainly a worthwhile endeavor and will at least spare justices having to fret about such things until long after the trial is over. A period of respite is often enough to cool even the most passionate of observers and allow time and context to solidify and create some form of objectivity. As the Court previously argued that custom always protected privacy in deliberations, so too the Court can recognize that current custom is for there to be a reasonable amount of time prior to private government communications being released as a matter of course.

The Court’s process for handling disclosure of its communications is distinct from the FOIA, and for good reason. The Court has two substantially different types of work: managing criminal trials and responding to requests for review of government actions or legal documents. Criminal trials touch on personal and individual rights more directly, and consistently, than requests for review, and premature attention to its deliberations in the case of criminal trials is far more likely to be destructive to the Court’s work and the defendant. For the Court to properly safeguard the rights of defendants, it needs insulation from FOIA that the other branches do not. The Court’s current procedures provide an absolute prohibition from disclosure for open or ongoing cases, which would be the essence of the Court’s prior prohibition in the challenged ruling. They further control release of records in a time frame that is too soon after a case’s completion, and ultimately call for total disclosure after a year, same as the FOIA.

We feel that the Court set appropriate limits to these requests in its procedures, and its release of records can continue under those principles. And we believe that these procedures, which provide the distinct guardrails that would mitigate the concerns this Court has previously outlined, serve as a strong baseline and model for any future revision of the FOIA that would include the Court. The Court’s procedures also contain similar language regarding privacy of information that the FOIA law employs, which this Court agrees are sufficient, and we would expect that any FOIA amendment incorporating the judiciary would apply the same privacy rules to that body as it does the other branches.
The judicial branch is just as subject to scrutiny and the citizenry’s right to hold its leaders accountable, and that must be balanced against the Court’s need for privacy in handling the important matters under its purview. It simply cannot be the case that disclosure of such deliberations must necessarily always be prohibited.

Holding
We find that the following portion of our prior ruling On Freedom of Information Requests against the Judiciary is now defunct as precedent:

the FOIA law may only be used to request information belonging to the Executive branch.

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Therefore, that portion of the ruling will be modified with strikethrough tags, acknowledging its obsolescence while preserving it for historical purposes. We hereby overturn the parts of that same ruling that asserted applying the FOIA law to the Judiciary would be a gross violation of the principles of justice and of the integrity of the judicial process, and that publication of private deliberations is absolutely prohibited under any and all circumstances. We affirm the Court’s continued disclosure of its deliberations on the schedule as currently constituted in the Court’s rules. Any potential alteration of the FOIA to incorporate the judiciary must take these restrictions into account and provide strong protections for criminal defendants by being deliberate and gradual in providing for when and how private judicial records might be disclosed or requested.[/B][/CENTER]