By Gabe Roth, FTC executive director

Under seemingly everyone’s understanding of federal open records laws — namely FOIA — the judiciary is exempt from them.

That is, everyone but America First Legal, which is suing the judiciary over an unanswered FOIA that concerns correspondence the Administrative Office of the U.S. Courts and the Judicial Conference purportedly had with Democratic members of Congress over recent SCOTUS ethics scandals.

The irony of this request is that, in the end, the AO and Judicial Conference ran interference for primary offender, deciding to drop the complaint against Justice Thomas for not reporting decades worth of gifts, free vacations and other perks on his financial disclosures. (Fix the Court is on record supporting a fine for Thomas’ omissions under the Ethics in Government Act and creating an enforceable ethics regime down the line but opposing harsher penalties like criminal liability or impeachment.)

AFL’s argument in the suit — D.D.C. Judge Trevor McFadden held a hearing today on the AO/JCUS motion to dismiss — boils down to its belief that when Congress, in 5 U.S.C. §551(1)(B), exempted “the courts of the United States” from FOIA, it was not exempting the ancillary bodies within the judicial branch that perform administrative functions, like the AO and JCUS.

So, for example, a judge’s law clerks would count as part of “the courts of the United States” since they’re helping draft opinions and memo, but the clerk of the court would not, since his role doesn’t include adjudicating cases and controversies.

Creative, but unconvincing.

On the other hand, the courts — and today this position was argued by Ethan Torrey, head of SCOTUS OLC, with AO Director Conrad and an attorney from McGuireWoods sitting at the counsels’ table — point out that the AO’s functions are “intertwined” with judicial functions.

In other words, it’s hard to imagine a judge writing an opinion on a computer from her desk in chambers if she has no computer or desk or chambers, each of which is provided by the AO’s budget authority. As far as the JCUS goes, it’s completely composed of federal judges. (AFL’s response: JCUS comprises “judges sitting around a conference table and not on a bench.”)

In addition, there’s case law that favors the judiciary’s position, as, for example, a judge has held that the U.S. Tax Court, which isn’t even in Article III, is exempt from FOIA. “Every court that has considered this,” Torrey said during rebuttal, “has said that FOIA does not apply” to the AO and JCUS.

What was also interesting about Torrey’s presentation was that he used some ethics-related statutes to solidify his position, citing the role the JCUS plays in the financial disclosure statute and noting that the Judicial Conduct and Disability Act makes judges on a Judicial Conference committee act as a de facto court that reviews a judicial council’s determinations of misconduct.

Earlier this week, Fix the Court had requested that a public call-in line be provided for today’s hearing, but that request was denied, which is a shame since the security line at the Prettyman Courthouse this morning was down the block and around the corner for most of the 9:00 and 10:00 hours. That meant some AO staff, reporters and members of the public were either not able to get in or only made it in after half the argument was over.

Finally, it’s worth noting that last year, then-Rep. Schiff introduced a bill that would subject several judiciary agencies to FOIA — and that he and Fix the Court and all the groups cited in his release believed you’d need an proactive provision to make judicial branch records public under FOIA. (This was not the perfect bill, and we’d have edits if given the opportunity, but it was an important one that advanced the conversation on transparency in the judiciary. And Free Law Project get credits for bringing judicial FOIA out from various West Coast legal clinics and into the mainstream.)