The U.S. Senate does not have to release its full report detailing the Central Intelligence Agency’s interrogation and detention program following the Sept. 11, 2001, attacks, a federal judge ruled Thursday.
Journalist Shawn Musgrave sought the 6,700-page document, citing a “common law right of access” to public records. The legal argument is conceptually similar to the Freedom of Information Act. Congress is not subject to the Freedom of Information Act, and the U.S. Court of Appeals for the District of Columbia Circuit ruled in 2016 that the report was a congressional record. Musgrave’s legal argument was made in an attempt to get around that limitation.
Common law right of access is decided in the District of Columbia Circuit based on a two-part test that requires a determination that the document is a public record and then balancing the government’s interest in keeping the document secret against the public’s interest in disclosure.
District of Columbia District Judge Beryl Howell ruled that the report “does not qualify as a public record subject to the common law right of public access” because although it was part of the committee’s investigation, it was aimed at gathering information and did not make recommendations or propose legislation. Therefore, she said, it falls under the protections of the 1st Amendment‘s speech and debate clause protecting legislators’ speech while crafting legislation.
The government interest in keeping the information secret outweighs public interest, Howell wrote.