Davis Wright Tremaine is widely recognized as a national leader in fighting for access to public documents and information. We do this work for some of the country’s top media companies as well as on behalf of many important organizations and individuals who need pro bono assistance.
Here are a few of the current pro bono cases we are handling, all spearheaded by our San Francisco partner, Thomas R. Burke.
Researching the FBI’s Surveillance of the Black Panther Party
Veteran journalist Seth Rosenfeld has devoted much of his career to investigating and reporting on the FBI’s domestic intelligence operations during the Cold War, often relying on records uncovered through Freedom of Information Act (FOIA) requests. His 2012 book, "Subversives: The FBI’s War on Student Radicals, and Reagan’s Rise to Power"—a New York Times bestseller and winner of several literary awards—was based largely on FBI records that Mr. Rosenfeld was able to access only after decades-long FOIA litigation.
Mr. Rosenfeld has recently turned his attention to government surveillance of the Black Panther Party in the 1960s and ‘70s. As part of that research, he submitted a request for FBI records regarding the late Black Panther Party leader Huey Newton. The agency acknowledged possessing 3,622 pages of records responsive to his request, but refused to release them unless Mr. Rosenfeld paid for search fees, insisting that Mr. Rosenfeld did not qualify as a representative of the news media and therefore was not entitled to the standard fee waiver for journalists. The FBI also refused to process any of Mr. Rosenfeld’s 45 other pending FOIA requests because of the dispute.
In March 2016, DWT’s Tom Burke and Kathleen Cullinan sued the U.S. Department of Justice and the FBI on behalf of Mr. Rosenfeld.
Said Mr. Burke in the complaint: "The government has essentially blacklisted our client because he has effectively used the Freedom of Information Act to inform the public about improper FBI activities. Moreover, if allowed to stand, the government’s position would unlawfully bar an entire class of journalists—independent investigative reporters—from receiving news media representative status, subject them to daunting and improper fees, and thus bar public access to vital information held by the government."
In the months after the lawsuit was filed, the FBI agreed to grant Mr. Rosenfeld media status and to reopen all of his pending FOIA requests, which have now been, or are being, processed. All search/processing and duplication fees for the requests have been waived.
DWT’s Ronnie London also played a key role in the case.
Casting Light on Human Rights Abuses in El Salvador
The civil war that lasted throughout the 1980s in El Salvador claimed the lives of at least 75,000 civilians, many eliminated in rural massacres. A UN Truth Commission attributed most of these crimes to state forces, but the commission’s inquiry was limited, and thousands of Salvadoran families are still searching for basic information about the fate of their lost loved ones.
The Unfinished Sentences initiative at the University of Washington Center for Human Rights was launched several years ago to promote truth, justice, and reparations for survivors of the Salvadoran conflict. Among other activities, the center has filed about 200 FOIA requests with various U.S. agencies, seeking information on specific cases under investigation, and has shared those documents received with survivors and their advocates.
But the center ran into a roadblock at the CIA in 2013 when it sought access to documents relating to Sigifredo Ochoa Pérez, a retired Salvadoran politician and military commander, whose troops—ample evidence suggests—carried out multiple civilian massacres. The CIA denied the university’s FOIA request on the inconsistent grounds that the agency could not "confirm or deny" that responsive documents existed but also later insisting that it had too many potentially responsive documents.
With representation from Tom Burke and Seattle associate Tom Wyrwich, the university filed suit against the CIA on October 2, 2015, alleging a failure to comply with the requirements of FOIA. The suit received wide national publicity.
"This kind of action—defending freedom of information, in the interest of generating and disseminating knowledge—lies at the core of our mission as a research university, yet we’re not aware of another such case in the nation," the center said in a press release.
In response to the legal action taken by our client, the CIA undertook a new search, locating and releasing 85 documents regarding Col. Ochoa Pérez—documents that contain details about key moments in his military career and that may provide evidence of war crimes and crimes against humanity.
According to Center for Human Rights, which published the documents on its website in May, the records "also offer broader insights into other topics which may be useful in future human rights investigations, including descriptions of the Salvadoran military chain of command and strategic evaluations of U.S. military assistance. They also leave crucial questions unanswered, with gaps that point to the need for further research and broader declassification efforts."
The CIA continues to withhold 15 documents on the basis of national security exemptions. Additionally, at the center’s urging, the CIA has agreed to search for responsive documents maintained in its "operational files"—an important category of internal documents (reflecting contemporaneous reports from agents in the field) that are rarely accessible to the public through FOIA.
Seeking to Aid Central American Refugees Fast-Tracked for Deportation Proceedings
In February 2016, Tom Burke was retained by several organizations that regularly assist immigrant communities to file a FOIA lawsuit to force the Obama Administration to release policy documents about its practice of fast-tracking deportation proceedings for recent Central American refugee families and children.
The plaintiffs include: the American Immigration Lawyers Association; Community Legal Services in East Palo Alto; the Center for Gender & Refugee Studies, housed at the University of California Hastings College of the Law; and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.
"Without this information, immigration attorneys lack the ability to advocate effectively for their clients, and the public cannot provide meaningful oversight of the fast-tracked hearing process," said Travis Silva, formerly of the Lawyers’ Committee for Civil Rights.
The new fast-track process was instituted in response to a surge of families and unaccompanied children fleeing extreme violence and deteriorating conditions in countries such as El Salvador, Guatemala, and Honduras. According to the complaint: "As the media increasingly focused its attention on the rising numbers, the Administration sought to stem the arrival of migrants and send a message to those who might be considering making the trip."
Among the measures taken in the summer of 2014, the U.S. Justice Department adopted new procedures to speed the adjudication and removal process for unaccompanied children and families, with a focus on "recent border crossers."
The volume and compressed time schedule for handling the cases raised serious questions about whether due process rights were being respected.
These questions were especially pressing as the government made very little information available—such as what standards, procedures, or protocols were being applied to these dockets—to the public or to immigration attorneys seeking to assist this highly vulnerable population.
Several immigration groups submitted FOIA requests for more information about the dockets, but received a fraction of the records requested. As a result, they filed suit.
"The public deserves to know the policies by which the federal government is considering the asylum claims of recent Central American children and families, many of whom have fled horrible persecution abroad," said Jayashri Srikantiah, director of the Stanford Law School Immigrants’ Rights Clinic, which is also serving as co-counsel in the case.
Within months after the lawsuit was filed, the Justice Department’s Executive Office for Immigration Review began releasing thousands of responsive documents containing information previously withheld by the agency. The agency is continuing to disclose additional records in response to the FOIA lawsuit. San Francisco partner Patrick Ferguson also assisted with this matter.
Pursuing Information on Los Angeles Police Department’s 'Muslim Mapping' Project
In 2007, the commanding officer of the Los Angeles Police Department’s counterterrorism bureau disclosed a "recently launched" initiative to conduct a "mapping" project of local Muslim communities. News of the plan sparked outrage among Muslim and civil liberties groups, and it purportedly was abandoned soon after it was made public.
But withdrawal of the plan still left many questions unanswered, such as how such a program could have been proposed in the first place, how far it had gotten, who had proposed it, and how it had been discussed within the department. To answer such questions, Muslim Advocates, an organization that counters anti-Muslim bigotry and fights racial profiling, sent a request under the California Public Records Act for all LAPD records reflecting or relating to the "mapping" proposal.
Over the course of the following two years, the police department failed to produce any significant records, claiming variously that none existed and that there were technical impediments to providing any such records, and even questioning whether there was "public interest" in such records. Eventually the department stopped responding altogether.
In July 2016, Muslim Advocates filed a lawsuit in Los Angeles County Superior Court against the LAPD, alleging numerous violations of the Public Records Act. Muslim Advocates is represented by Tom Burke, Karen Henry, Dan Laidman, and Brendan Charney. The case is ongoing.
Opening up Historical Records Regarding California’s Historic Committees on Organized Crime
In partnership with the Reporters Committee for Freedom of the Press, Tom Burke has succeeded in winning access to important historic records previously closed to both scholars and the public by the University of California, Berkeley Bancroft Library.
The case was pursued on behalf of the Reporters Committee and Stephen Bloom, an author, journalist, and professor of journalism at the University of Iowa. One of Professor Bloom’s current projects is a book about Inez Burns, a California abortion provider who performed 50,000 abortions from 1920 to 1945, before she was prosecuted by San Francisco District Attorney Edmund (Pat) Brown. Brown went on to become California attorney general and governor. His son, Jerry, is California’s current governor, now in his third term.
As part of his research, Professor Bloom sought access to a cache of documents housed in 25 cartons at the Bancroft Library from California’s Special Crime Study Commission on Organized Crime. The commission, first appointed in 1947 by Gov. Earl Warren, was charged with exploring organized crime in California, particularly crimes involving gambling, racketeering, abortion, and prostitution. At the time, it was the largest study of its kind ever undertaken in California. The documents were given to the Bancroft Library by the commission’s chief counsel, Warren Olney III, in 1975.
But when Professor Bloom and the Reporters Committee requested access to the documents, the library maintained they were closed to research until 2028, due to confidentiality concerns. The library claimed, among other things, that the files were not "public records" as defined by the California Public Records Act, because they are "property owned by The Regents" of the university and "not records that relate to conduct of the University’s business." The library argued that the records were therefore exempt from disclosure under the act.
Following the depositions of Bancroft Library officials, whose testimony cast considerable doubt on the strength of their legal position, the library reversed its position entirely and over the summer processed this collection, which is now available for review by scholars and the public.
Professor Bloom’s book, tentatively titled "Inez & Pat: Ambition and Obsession in the City of Seven Celestial Hills," will be published next fall by Regan Arts.