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

Pallaith

Pallaith

TNPer
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The Court Examiner has wasted no time in continuing to bring another R4R challenging a past Court decision. Standing was obvious, and we know the drill, so I have accepted this request. The briefing period has been opened.
 
With the briefing period now over, I was curious if you had any initial thoughts on this one. We have quite a few briefs to chew on compared to other recent cases, and I am actually glad because I think the initial approach I had in mind for this one may be changed a bit by what I have seen.
 
Well, I figured I might as well provide a draft opinion, since it fell into place much easier than I had been thinking. Let me know what you think.

Ruling of the Court of The North Pacific
In regards to the Judicial Inquiry filed by TlomzKrano on the Reconsideration of Freedom of Information Requests against the Judiciary
Opinion drafted by Chief Justice Pallaith, joined by Justices Vivanco and Nutmeg the Squirrel​

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.
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.
 
After taking a close inspection on the case, I agree on the draft presented!
 
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