Kagan sought secrecy in 4 of 5 open gov't cases


WASHINGTON (AP) – Supreme Court nominee Elena Kagan’s arguments as solicitor general in several cases on government secrecy were at odds with a promise of transparency made by her boss and top client, President Barack Obama.

In four of five cases she dealt with involving the Freedom of Information Act, Kagan argued in favor of secrecy, Justice Department documents show. In those four lawsuits, the Supreme Court took her side and let lower court rulings in the government’s favor stand.

The justices haven’t yet said whether they will take the fifth case, in which Kagan argued against broadening an open records exemption to let corporations claim personal privacy rights and avoid public release of government documents about them.

As the government’s top lawyer arguing before the Supreme Court, the solicitor general generally determines which cases to take to the court and what to argue. The White House and Justice Department declined to say whether Kagan’s arguments in open records cases reflect her personal views.

In the most widely publicized freedom of information case, Kagan successfully argued that the Supreme Court should overturn a New York appeals court ruling that directed the government to release photographs of foreign detainees being abused by their U.S. captors. The American Civil Liberties Union sought the photos; Obama and the Pentagon opposed their release.

“In the judgment of the president and the nation’s highest-ranking military officers, disclosure of the photographs at issue here would pose a substantial risk to the lives and physical safety of United States and allied military and civilian personnel in Iraq and Afghanistan,” Kagan told the court in written arguments.

In another case, Kagan argued that a consumer group should be denied data on physician claims paid by Medicare because it would amount to an unwarranted invasion of the physicians’ personal privacy. That information could be paired with a publicly available Medicare fee schedule to figure out how much each physician earned from Medicare, she and her team argued, contending that the government could withhold the physician claim information under an exemption in the open records law.

“The fact that some arithmetic, using publicly available fee schedules, might be necessary to compute the precise amount of a physician’s income is no privacy protection for the physician at all,” Kagan told the high court in a brief. The court, as Kagan wanted, declined to hear the group’s appeal.

A government watchdog found Kagan’s argument in that case troubling. Kagan didn’t argue that the information the center sought is private, but rather that the information, combined with other things, could lead people to figure out something the government doesn’t want public, said Melanie Sloan, head of Citizens for Responsibility and Ethics in Washington, a frequent user of the open records law.

“That’s really going outside the four corners of the statute,” Sloan said. “I find that kind of a ridiculous argument.”

To read more, visit: http://apnews.myway.com/article/20100622/D9GG8TC80.html

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