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Journalist Bill McMichael and Media Freedom and Information Access Clinic Prevail Over Department of Defense in FOIA Case

In a victory for Yale Law School clinic students, a federal judge has rejected an attempt by the Department of Defense (DOD) to shield investigatory records from review under the Freedom of Information Act. Yale Law School’s Media Freedom and Information Access Clinic (MFIA), under the supervision of Lee Levine and Chad Bowman of Levine Sullivan Koch & Schulz, LLP, represented journalist Bill McMichael in his request for the documents.

The request centered on an investigation by the DOD Inspector General into an allegedly abusive work environment in the U.S. Strategic Command (STRATCOM) – a unified military command that is responsible for space operations, global missile defense, and combating weapons of mass destruction, among other important functions.

McMichael, then a reporter at the Navy Times and now at the News Journal, of New Castle, Del., requested a copy of records from the investigation under the Freedom of Information Act. Vice Admiral Cecil D. Haney of STRATCOM rejected the request with a “Glomar” response – neither confirming nor denying the existence of the records. McMichael’s subsequent appeal to the DOD was denied, leading him to file suit in federal court.

“Glomar” responses are named after the Hughes Glomar Explorer, a secret government ocean vessel that attempted to raise a sunken Soviet submarine. Responding to requests from the media, the CIA refused to confirm or deny the existence of documents concerning the operation.

MFIA argued that the “Glomar” response was improper here because of a significant public interest in the requested records, the important position held by the subject of the investigation, the widespread knowledge of the investigation among STRATCOM employees, and the fact that the subject of the investigation had himself discussed it.

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia agreed, denying the DOD’s motion for dismissal or summary judgment and ordering a proper review of the requested documents. “Balancing [the subject’s] diminished expectation of privacy against the public’s interest in knowing whether the IG investigated allegations of misconduct, it must be concluded that the public interest prevails,” Judge Collyer wrote. “Particularly where the fact of the IG investigation was known to a number of people and the identity of the person under investigation was equally apparent, a Glomar response cannot satisfy.”

“I knew we had a winning argument,” McMichael said. “But I guess you never know how the judge will rule. So the decision is gratifying. We weren’t seeking nuclear secrets. This case is no more than the U.S. government’s attempt to hide what appears to have been abusive behavior by a supervisor on the government payroll. I still can’t believe they invoked Glomar for such an insignificant case.

“I’m deeply appreciative of the hard work and patience the Yale Law School students have put into this case, as well as for the support of Lee Levine and Chad Bowman. I’m fortunate that the students reached out in the summer of 2011 to Mark Caramanica of the Reporters Committee for Freedom of the Press, looking for cases to explore. Mark had helped me shape my original FOIA appeal letters. The timing was exquisite.”

McMichael added, “Anything that can chip away at something that impairs the American public’s right to know is a good thing. It’ll be interesting to see how DOD reacts.”

MFIA members Jenn Bishop ’12, Mike Knobler ’12, James Shih ’13, and Max Mishkin ’14 worked on the case. MFIA, an initiative of the Information Society Project, the Knight Law & Media Program, and the Floyd Abrams Institute for Freedom of Expression at Yale Law School, was founded by Yale Law School students to defend the public’s right of access to government information and to support traditional and emerging forms of newsgathering. Through MFIA, Yale Law students work under the supervision of veteran media attorneys who volunteer their time pro bono on cases where private actors lack the resources to prosecute the public’s access rights. More information is available at http://www.law.yale.edu/intellectuallife/MFIA.htm.