Case Title

1. Scoop may succeed in her challenge on the merits, if she is able to persuade a judge to review the classification.

The 1974 amendments to the Freedom of Information Act (FOIA) give judges the power to examine classified documents to determine if they have been classified properly as outlined in the applicable executive order. President Clinton’s E.O. 12958, effective April 17, 1995, substantially changed the classification system in place since the Reagan administration. However, Attorney General Jon Ashcroft's Memorandum of October 12, 2001 makes it more difficult for citizens to gain access under the national security exemption.

Section 1.5 of the E.O. 12958 clearly lists the criteria documents must meet be classified under the National Security exemption. It states that information may not be considered for classification unless it concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or facilities; or
(g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

Since documents relating to cheating on exams by midshipmen at Annapolis do not easily fall under any of these categories, the Navy’s claim of national security is spurious in its face.

Sec. 1.8. of E.O. 12958, Classification Prohibitions and Limitations, also supports Scoop’s claim. In asserting a national security interest in nondisclosure, the Navy said that release of the requested information would "embarrass the Navy." Section 1.8 states that " In no case shall information be classified in order to...prevent embarrassment to a person, organization, or agency.

While it is likely that the Navy would use FOIA’s personal privacy exemption, the requirements of the Buckley amendment, and all other applicable federal privacy statutes to protect personal information in the requested documents from disclosure, Scoop’s appeal of the denial under the National Security exemption should be successful. Absent a successful claim under other applicable federal statutes, the Navy will be required to turn over the requested material after reviewing it and redacting all personal information.

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