NEW YORK, NY—The U.S. Court of Appeals for the Second Circuit has ruled in favor of the Brennan Center for Justice in a Freedom of Information Act lawsuit over the Bush administration’s funding policies for NGOs working on HIV/AIDs projects abroad.
In 2009, the Brennan Center filed a Freedom Of Information Act lawsuit against the U.S. Department of Justice, the U.S. Department of Health and Human Services, and United States Agency for International Development (USAID) for improperly withholding a 2004 U.S. Office of Legal Counsel Opinion. The opinion speculated on the constitutionality of an anti-prostitution pledge that U.S.-based non-governmental organizations receiving grants to do anti-HIV/AIDS work abroad were forced to take. The constitutionality of the pledge requirement is the subject of a related Brennan Center case, AOSI v. USAID.
“This ruling is an important victory for all groups and organizations that face questionable government restrictions,” said Inimai Chettiar, director of the Brennan Center’s Justice program. “The Freedom of Information Act was created to increase transparency and keep our citizens informed, and we are pleased that the court found that government agencies must be held accountable for decisions made behind closed doors.”
In 2004, the Bush Administration decided not to compel U.S.-based organizations to pledge their opposition to prostitution, based on the Office of Legal Counsel’s opinion. But 18 months later, the Office of Legal Counsel changed course and opined that the pledge requirement was constitutional after all. The government’s attempts to apply the pledge requirement spurred litigation challenging the practice on First Amendment grounds. The Second Circuit held that that the pledge was unconstitutional, upholding a commitment to free speech.
On August 30, 2011, the U.S. District Court for the Southern District of New York granted the Brennan Center’s motion for summary judgment and ordered DOJ, HHS and USAID to turn over the opinion. The government appealed the decision to the Second Circuit, plaintiffs responded, and oral argument was heard on January 21, 2012.
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