The Electronic Frontier Foundation’s FOIA efforts to receive records detailing the telecoms’ campaign for legal immunity (under the FISA Amendments Act of 2008) implicates government-side disclosure of lobbying. The EFF’s release is here and it contains all of the relevant links, including a Feb. 9, 2010 9th Circuit opinion.
This case concerns the discussions between telecommunications carriers (including their lobbyists and attorneys) and the government, as the carriers sought retroactive liability protection for any participation in the program. This appeal concerns the extent to which the public has the right to information about those discussions and related lobbying efforts under the Freedom of Information Act (“FOIA”).
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There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. As the Supreme Court has explained, “[o]fficial information that sheds light on an agency’s performance of its statutory duties” merits disclosure. Reporters Comm., 489 U.S. at 773.
Disclosure of lobbyists’ contacts has been a hot topic. The White House Fact Sheet, “Cracking Down on Special Interests,” notes the issue: “Lobbyists should disclose everyone they lobby and when, where, and what the substance of the contact was.” The 9th Circuit’s opinion does raise the interesting question of what prevents the relevant government official from disclosing the contact. The administration implemented government-side disclosure for some ARRA-related contacts.
Peering into my snowy crystal ball, I’ll safely predict more required disclosure of lobbying contacts is in the future (but I wouldn’t expect quick action on it). In Citizens United the majority cited Harriss, noting that the case upheld lobbyist registration and disclosure requirements. “(Congress ‘has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose’).” NAM v. Taylor is a relatively recent case upholding certain lobbying disclosure requirements enacted as part of the Honest Leadership and Open Government Act of 2007. Is there something about the specifics of lobbyist contacts that would change the analysis?