Justice Department changes position regarding drone records


On May 22nd, PRM filed suit against the U.S. Department of Justice, seeking access to legal opinions that detailed the circumstances under which the U.S. government could use drones to project lethal force against persons inside the United States.

PRM sought these documents – and more – through a 2011 FOIA request that the DOJ’s Office of Legal Counsel (OLC) denied in its entirety. OLC refused to confirm or deny the existence of some records; told us that they had identified other records that were “responsive to the remaining items” in our request; and then issued a blanket denial related to all of the documents.

In May, we filed suit in federal court to get access to the OLC’s legal opinions, and sought to challenge the government’s use of FOIA exemptions to withhold the records. While we initially sought three categories of records, we only sued to get access to one category – legal opinions related to domestic drone use.

We filed our complaint in May of this year. When the government filed its answer, we noticed a curious detail. Paragraph 21 of their answer denied the allegation made in paragraph 21 of our complaint, which read:

21. Defendant has acknowledged possession of legal opinions and/or memoranda responsive to Item 3 of Plaintiff’s FOIA request.

The “Item 3” documents in our request related to domestic drone use. To our eyes, this response could be read in two possible ways. Either:

1. DOJ was denying that they had acknowledged possession of the documents, or;

2. DOJ was now claiming that they did not possess responsive documents, as previously represented.

In subsequent discussions with the DOJ’s trial attorney, we were told that the later situation was the case. DOJ claimed that they did not, in fact, possess records of the type we were seeking, and planned to alter their FOIA response to represent that position.

Prior to our Rule 26(f) conference earlier this week, the OLC sent a letter via trail counsel that altered their earlier FOIA response. In that letter, the OLC noted that:

“None of the responsive records we identified are responsive to” Item 3 documents. “Rather,” the letter stated, “any responsive records located are responsive to the second category, construed broadly.”

A Washington DC-based FOIA attorney that we have consulted with has advised us that while changes to initial FOIA responses are not unusual in the course of litigation, changes from a “records” to “no records” position are fairly rare.

Next Tuesday, the pretrial conference in our case will take place at the federal courthouse in Minneapolis. Both sides have proposed a joint briefing schedule to the court. Watch our blog for more updates.