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Court Says Nsc Can Ignore Freedom Of Information Act Case Dates Back To Lawsuit Filed During Reagan Years

Associated Press

The National Security Council that advises the president is not subject to the Freedom of Information Act, a federal appeals court ruled Friday in a case dating to the closing days of the Reagan administration.

The three-judge panel overturned an earlier decision that ordered the council to comply with freedom-of-information requests from journalists and the National Security Archive, a Washington research group.

“It’s a dark day for government accountability,” said Kate Martin, counsel for National Security Archive.

“If this had been the law in 1989 President Reagan would have been free to destroy all of the White House e-mail tapes as he was leaving office,” she added.

The Justice Department had no immediate comment on the ruling.

The Archive, journalist Scott Armstrong and others filed suit in 1989 seeking security council data from the Reagan White House.

The case originally focused on whether electronic messages, known as e-mail, were government records.

The group obtained a temporary restraining order preventing destruction of Security Council e-mail in 1989.

It sought to obtain information about council activities during the Iran-Contra affair involving council staffer Oliver L. North and others.

The circuit court ruled in 1993 that the e-mail files are records as defined by law and, thus, subject to the Freedom of Information process.

The Clinton administration then argued that the Security Council is not subject to that law, the case decided Friday.

The council should not be subject to the law because it is an advisory group for the president and “does not exercise substantial independent authority,” Judge Douglas H. Ginsburg concluded, writing for himself and Chief Judge Harry T. Edwards.

Judge David S. Tatel dissented, noting that the council complied with the law under former presidents Ford, Carter, Reagan and Bush, only recently declaring itself exempt.

Martin said her group is contemplating its next move.

It could appeal to the Supreme Court or ask the full 11-member appellate court to reconsider the decision of the three-judge panel.

The Freedom of Information Act requires government agencies to make their activities and files public, except under certain limitations to protect national security.

But the act exempts officials within the president’s office who serve in an advisory capacity.

The National Security Council, formed in 1947, is chaired by the president.

Among the members are the vice president, secretaries of state and defense, central intelligence director and chairman of the military joint chiefs of staff.