Open Government and Military Justice

Authorby Major Paul L. Luedtke
Pages01

In this article, Major Luedtke discusses the effects which the Freedom of Information Act, 5 U.S.C. § 552 f1076). and the Privacy Act, 5 U.S.C. B 552a (10761, have on the hading of records within the Amy's milihy justice system.

After reviewing the two statutes and lh.& interrelationship, Majw Lnedtke discusses their effect on the availability of court. mrtial t k l and appellate records, and records of nonjudicial punishment under article 15, UCMJ. HE then examines the possible u ~ e of the huo acts LLB altarnatives to discovey in court. martial proceedings. A revim of military diseouey law is pm-vided, including the scope of discovey and the sta7uianis of mlevanee and reasonableness.

Majorhedtke also eonsideis briefg smml other questions, including the question of whether the failure of the military

*This article is an adaptation of a the& presented to The Judge Advocate Gen-eral'e School, U.S. b y ,

Chlviotfesville, Virgirua, while the author w88 B mem-ber of the Twentysixth Judge Advocate Officer Advanced (Gmduate) Claas, during academe year 1977-78. Major Luedtke's thesis wae blietly noted at 86Mil. L. Rev. 172 (1979).

The mpmnions and eonelusions expressed in this article me those of the author and do not necessarily reprenent the *ews of The Judge Advocate General'sSchool, the Department of the Army, or any other governmental agency.

**JAGC, United States Army. Officer m Charge, Branch Office, Hunter Army Aideid, Georgia, af Office of the Staff Judge Advocate, HQ,

24th InPpntry

Di*isian and Fort Stewart, Gear&, 1978 to present. Formerly aasigned to the Administrative Law Division, Office of The Judge Advocate General, at the Pentagon, 197677; trial and defense counsel and chief of justice, Office of the S W

Judge Advocate, U. S. Army Engineer Center, Fort Beivoir, Virginia, 197E-76. B.A., 1965, St. John's University, Collegewlle, Minnesota; J.D., 1970, University of Mimesots Law School. Completed Judge Advoeate Offleer Baaic Course, 1971; Judge Advoeate Offeer Advanced (Graduate) Course, 1978. Mem-ber of the Bars of the Supreme Court of Minneaota, the United States Court of MiMary Appeals, and the United State8 Supreme Coun.

services to publieh punitive regulatias in the Fsdaml RegCtm gives rise to an affirmative &feme fw p m a s chnlged with vialating those regulatiaa.

Ths author dieeuases thvl la& p p of quetias tn a hg.

pothstical mnw, awing t h t they am wwth ezamining be-cawe other tr6nda in dsvelopment of the law m y piwe them

I. INTRODUCTION

Openness-in-government legislation has descended upon the federal pmtitioner with the ever increasing force of an avalanche. From the initial rumblings of the mid-lWs, there has followed more than adeeade of new and amending legislation, implementing replatiom, and court interpretation.' The Freedom of Information Act: the Federal Advisoly

' The date of July 4, 1967, msy t d y be sdd ta be the dam af an opmesa.in-mvernment em. HOWOY~T,the begidninp go back st le-t 21 ye-, to the enpetmsnt of the public idomtion sectSon of the Adminiatmtive Fmcedvre Act, eh. 824, I a, 60 Stet. 238 (1946).

h e

to va~~enesiand other statutory inadequacies. the set WPB Requentiy

used by government agencies a8 authority for withholding informstion. Ulti-mstely its failure to secomphh wideaprsd diaseminntion of government infor-mation gave birth to the new em.

In 1958, Co-a8 weed the h t statute devoted deiy to Reedom of Mormation. It added one aentenoe to the 1789 'hwekeepinfl law now codified at 6 U.S.C. 0 801 (1976): 'Thili section does not mtho- withholding informstion fmm the public or limiting the availability of records to the public." Act of Aug. 12, 1958, Pub. L. No. W19. 72 Stat. 647.

It WPB not until 1888, however, in an act to be edective on July 1. 1967, that Congress mended the pubhc informstion seetion of the Adminishtive Roeed m

Act. Act of July 1. 1888, Pub. L. No. 8 U 7 , 80 Stat. 250. It WPB thia Pet that d e the initid and crucial tramition Rom a requirement ta d e matters

of oKdd m a d wdsble '?to pereons pmprly and directly concerned," to a requirement to d e requested identfibie recorda "promptly svdnbie to any p8-m." Aa a result ofthe A d of June 5, 1967, Pub. L. No. B(c2s,

81 Stat. 51,

dao ellective on July 4, 1967, the otigind set mending the public infarnution aection of the Adminiatmtive Procedvre Act waa codified as part of title 5. Umted

Committee Act,' the 1974 amendments to the Freedom of Information Act,' the Privacy Act of 1974,' and the Government in the Sunshine Act,' are dl part of this recent phenomenon.' While the majority of ice and snow easesding down the mountainside may have reached the valley, the avalanche has not yet ended,n and surely the impact will not be known for years to come.

The military departments are not UnLike other elements of the exwutive branch to which this legislation genedy applies. They prepare budgets, pmure gods and senicea, and engage in the RIII gamut of governmental activities which create records the public Prequently seeh to discover. In addition, they maintain employee personnel files, medid

Staka Code. Sss Houae Corn. on Govement Operations, Administntion of the Fnedom of Infomation Act, H. R. Rep. No. 1419, 92d Cong., 2d Seaa. 1 (1979) [hmiruitor cited ui H.R. Rep. No. 14191.

Them WUIYInever M ad given the oB&d short title, '"Frspdom af Info-tion

Act," but the net of July 4, 1966, Pub. L. No. 8-7, 80 Stat. 2w,bbecome

h o r n 88 aueh. hone sense, thk istechniullyincorred, sa, priorto that statuto's effective dab, it WUPB

repealed by the Ad of June 6, 1967, Pub. L. No. %B, 81 Stat. 64, which mdified the prior statute with ody minor ehges. In any event, the t m

''Freedom of Info-tion Act" ui umd hereinrrRer mfem to ths net codified at 6 U.S.C.

8662 (19761, ui mended.

Pub. L. No. 92-468, 86 Stat. 7TO (1879). The act as mended is mdMd at 6 U.S.C.

App. (1976).

Act of No". 21, 1874, Pub. L. NO. WSOZ, 86 Stat. 1661.

Pub. L. No. 92479, 88 Stat. 1896. Section 3 is e d i d at 6 U.S.C. 866%(1876).e Pub. L.

No. W,

One ahouid not forget that the opennena-in-govement era has .Lao dected

the private aeetor, *..I.. the Fpir Credit Reporting Act, Pub. L. No. 91608, 8 601, 84 Stat. 1127 (1870). eodUled at 16 U.S.C.

1681-1681t (1976). It bdao

d&ed state and local gov~mm~nte,a.8.. the Family Edventiond Rights and

Privacy Act of 1874, (Bueliley Amendmente), Pub. L. No. 9 M ,

8 613,88 Stat.

671, codified at 10 U.S.C.

1281~

8 558 (1976) to ~ D ~ D Y D

the

m i l i w s exemption h m the rule-mahg r=quirementa of the Administrative

h e d m

Ad also could be considered an effort to oroddde more onen mvem.

.~

(1976).

90 Stat. 1241 (1976). Section 8 is codi5d at 5 U.S.C.

8 562b

(1976).

'See, e.g., Omnibva Rlght to Privacy Ad of 1977, H.R. 10076, 96th Cong., la1 Seaa. (l9Tn. Perhaps the pmpod to mend 6 U.S.C.

ment. H.R. ICaSe. 96th Cow, 1st %sa. 0 3 (1917).

fiies, investigatorytiles, andahost ofotherrecordsindexedand retrieved by the names of individuals. In these respects, the immediate impact of openness-in-government iegislation on the military departments is not substantially different &om the impact on the other executive agencies.

The militarydepartments, however, are uniquein that they administer a self-contained criminal justice system.O None of the other executive agencies contains within itself a system in which the prosecuting attorney, the defense attorney, the trial judge, the jury, the court reporter, the clerk of cow, the government and defense appellate attorneys, the appellate judges,'O the criminal investigators, the prison and rehabilitation personnel, and defendant all are memben of the agency. When one adds to this fact that the military justice system includes anonjudiciai means by which punishment car be imposed for minor disciplinary in-fractions," it is not difedt to understand that the military lauyer will be faced with numemua openness-in-government issues unlike those faced by his business suit counterpart in the executive agencies.

It is the purpose of this article to identify unique issues raised by the application of openness-in-government legislation, in particular the Freedom of Information Act and the Privacy Act of 1914, to the military justice system.'* These issues can be divided into two general area: (1) questions pertaining to treatment of military justice records under the acts, and (2) substantive and procedural issues raised by application of the acts to court-martial proceedings. While some issues are susceptible to resolution, most are such that at this time little can be done other than to provide some thoughts to aid in their eventual resolution. It is there-

Uniform Code of Military Justice arts. 1-140, 10 U.S C. B 8 801-940 (1976) mereinaner cited PB U.C.M.J.I. Manuai for Couns-Martlal, United States, 1969 (Rev. ed.) [hereinnffer cited as MCM, 19601.

L(J The hghesf military appellate tribunal, the Court of Mihtary Appeals, eatabBshed me an artieie I court by U.C.M.J. M. 61W, is not part of a militan department, or of the Departmental Defense except far adrmnistrstwe Prupoees Thm fad, however, does not detract from the umquenesa of the situation.

U.C.m.J. ut 15.

Many apeeta ofthe total mIiitaryjut>ce syatem will not be affected dlfierentiy from their equwdent outside the military. For example, it is difficult to evneelve my wque imues arising out af a Privacy Act sceess request far P prisonex's eomeetional treatment flle, The fact that an mdlviduai is s prisoner Bt the Umted States Dieeiplinary Barracks rsrhei than B federal pmon is irrelevant. Such mattem an outaide the scope of this article.

fore hoped that this article will serve 88 the catalyst which sill accelerate development of this aspect of the law to its fulleat extent.

11. SUMMARY OF THE...

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