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St. Thomas Law Review

First Page

281

Document Type

Article

Abstract

Naturally, the events of 9/11 raised serious concerns about the availability of certain types of government records. The ability of America's enemies to gain access to information which could then potentially be used in future attacks brought to the fore questions about where to draw the line between openness in government and guarding against terrorist activities. In its broadest terms, the impact of 9/11 on the FOIA can be seen in two ways. The first of these has been greater deference on the part of courts in FOIA cases toward government agencies withholding certain types of information. This has not necessarily required new developments in the law, just a modification in the application of previously established rules. As will be discussed in greater detail below, this greater deference by the courts is not unique to the post-9/11 world, but is consistent both with a general hesitancy by the judicial branch to interfere with the judgment of the executive and legislative branches on matters related to national security, and with greater deference by the courts to the other branches during times of war or other threats to national security. The second way the impact of 9/11 on the FOIA can be seen is through the application of new rules and the development of new categories of FOIA law with regard to Exemptions 1, 2, 7E, and 7F. Rather than just being new, more government-friendly applications of prior precedent, here the government has sought, to some degree, to establish new categories as a means of giving greater protection to certain classes of records. However, even here it should be noted that the groundwork for these types of changes was present in pre-9/11 FOIA law. This second impact has perhaps been the more important development for the FOIA. But this article will consider both types of changes to the FOIA landscape.

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