USIA bar on U.S. broadcasts exempts transcripts from disclosure 02/23/98

WASHINGTON, D.C.--A law that prohibits the United States Information Agency from propagandizing U.S. citizens exempts the agency from the disclosure requirements of the Freedom of Information Act when requesters seek records of the agency's communications outside the country, the U.S. Court of Appeals in Washington (D.C. Cir.) ruled in mid-February.

A sharply divergent panel ruled that the USIA may invoke the Smith-Mundt Act to refuse to release transcripts of Voice of America and Worldnet Television broadcasts to a group of researchers, scholars, organizers and journalists represented by Public Citizen. The exemption to the federal Freedom of Information Act that defers to confidentiality requirements in other laws would apply, Judge Karen LeCraft Henderson wrote for the majority.

The Smith-Mundt Act directs the USIA to improve relations with other countries through the "broadest possible" sharing of information. It states that the information "shall not be disseminated" within the United States but that media, scholars and members of Congress may have access to the information "for examination only."

Public Citizen said the Smith-Mundt Act prohibits only unsolicited dissemination of these records within the United States. It was not meant to prohibit the agency from answering inquiries from the public about its activities, or from disclosing the records in response to a specific request, the organization argued.

Henderson wrote separately that because the Smith-Mundt Act spells out how information will be made available, it is a disclosure statute that displaces the FOI Act, which she said does not apply to these records. Other panel members did not join this ruling.

Dissenting Judge David Tatel wrote that the Smith-Mundt Act clearly distinguishes "dissemination" of information, which it bars, and "disclosure" which it not only permits but requires in certain circumstances.

Essential Information, Inc., a non-profit citizen activist group founded in 1982 by Ralph Nader asked the USIA for six months of the USIA records in February 1996 and was denied. In May 1996, joined by several other groups associated with Nader, it sued for the records. In November 1996 the federal District Court in Washington, D.C., ruled that the Smith-Mundt Act is one of the statutes requiring confidentiality which is addressed in the FOI Act's Exemption 3. (Essential Information, Inc. v. USIA; Plaintiffs' Attorney: Collette Matzzie, Washington, D.C.)