Originally Posted by Bart
There are two primary reasons for information not being made public: the information is classified, or the bureaucracy makes it difficult to avail the information.
In this case, the reason is different: there is a specific exemption in the FOIA rules that allows the FAA to refuse to disclose their regulations; all they have to do is to assert that it it relates to aviation security. The problem is not that we asked for them in the wrong way; the problem is that no matter how you ask, they are exempt from FOIA disclosure.
I will also point out that the secret regulations I'm talking about are unclassified. No one is claiming that the photo ID regulations are classified. The FAA shares them with airlines and their airlines; the FAA just won't share them with the passengers who are affected by the regulation.
(Given your work in the military, you probably know the criteria for classifying something SECRET: "information which, if disclosed without authorization, could reasonably be expected to cause serious damage to the national security." Well, I don't think that the regulation requiring us to show ID falls into that category.)
Among the many things I did in my military career, one was to work with the Freedom of Information Act process. The guidance was crystal clear: cooperate as much as possible; find ways to release the information within the restrictions of classified information (if necessary...not all the information requested was classified).
That may be accurate in general, but that's not the rule at the FAA.
By the way, you may be aware that the guidance today appears to be a little different from what it was when you worked in this area. There is now a certain attitude of denying everything and forcing the requestor to sue in court to get what they are entitled to. But that's a bit of a tangent -- several organizations issued FOIA requests for the FAA photo ID regulations long ago, in the previous administration, and were rebuffed.
However, the rules were to give them exactly what they asked for, too: no more, no less. In the great majority of the requests, it was all in the wording of the request. In some cases, people just didn't know how to ask for the information. In other cases, they tried to be cute and dance around the topic, so we just gave them exactly what they asked for without making any assumptions.
That isn't the problem here. I know some of the people who submitted the FOIA requests asking for the photo ID regulations, and they are full-time lawyers who are experts in FOIA. Are you familiar with EPIC (
www.epic.org)? They are a civil liberties organization, and one of their major activities is to submit FOIA requests. They got nowhere with the FAA.
For instance, here is a denial document from the FAA that dates back to 1996:
http://www.epic.org/privacy/faa/letter.html
Note the statement at the end about how the FAA Administrator has broad discretion to prohibit disclosure of information (this includes denying FOIA requests).
In fact, there's some history here that you might not be aware of. John Gilmore et al started with FOIA requests 10 years ago, and the FAA refused to give them anything. It is only after 10 years of trying other routes that Gilmore filed this lawsuit.
I agree with you that the logic behind the rule requiring identification ought to be made public. However, the Gilmore case didn't exactly ask that question. It danced around the issue but never (to my knowledge) directly asked the question. I don't know if any cases have done that.
I don't know of any legal cause for action. The law is clear: the FAA is not required to release this information. I happen to think the law is an ... in this case, but the courts are not the answer to all injustices. This is a bad policy decision that can only be cured by Congress, or by the FAA. I wouldn't expect to see it in the courts, because everybody agrees that the law allows the FAA to withhold disclosure of these regulations. It's bad policy, but no court is going to overturn a law merely on the basis that it's a bad idea. That's why, realistically, the only way to fight the secret law issue is probably to fight it in Congress, or in the court of public opinion.