The feds have now entered the battle for the police 
    department's FTAA 
    operational plan
The feds have now entered the battle for the police department's FTAA operational plan
Jonathan Postal

Breakin' the Law

The federal government has thrust itself into the middle of a court battle between Miami's Civilian Investigative Panel (CIP) and the city's police department in an effort to keep bureaucrats from breaking the law.

This past Thursday the U.S. Attorney's Office filed a motion to prevent city officials from following through on their threat to release sensitive federal security information if they lose to the CIP in court, even though the CIP has stated it doesn't want or need to see that information. The federal motion uses pointed language to criticize the Miami City Attorney's Office, which is defending the police department, for its lack of cooperation. Drastic action, the feds say, to prevent "the unlawful disclosure of sensitive security information."

The original lawsuit came in the wake of the 2003 Free Trade Area of the Americas summit held in Miami, during which police were repeatedly accused of using excessive force. The CIP, a police watchdog group approved by voters in 2001, announced it would investigate police procedures and requested various records, including the department's operational plan for the FTAA. Police Chief John Timoney refused, claiming the document was exempt from public-records laws. (Another option would have been for police to redact, or black out, portions of the plan.) The CIP took him to court, and a circuit court judge, after reviewing the document, ordered police to release it. The city attorney's office appealed to the Third District Court of Appeal, and arguments are scheduled to be heard July 12.

After losing to the CIP in state court, Miami officials contacted various federal agencies and "stated the order might implicate federal documents," without mentioning which ones, according to the federal motion. Federal officials had to investigate for themselves which documents the police were referring to. And that's when they learned a seven-page U.S. Coast Guard memo was included in the operational plan. The Coast Guard was responsible for securing the Port of Miami during the FTAA. The memo detailed where personnel would be deployed and what specific tasks they would perform.

"We advised the defendant, City of Miami, that the memorandum contained federal sensitive security information, and that federal law prohibited the city from disclosing that material," the motion states. The feds also contacted CIP lawyer Charles Mays, who immediately cooperated and sent a letter May 31 stating the CIP was not interested in the Coast Guard memo or any other "sensitive security information."

Federal officials assumed the matter was resolved. On June 2 a Department of Justice attorney sent all parties a letter saying, "In light of this letter from the panel, we believe that the security interests of the United States in this matter have been protected, and we will thus not be appearing in the state court proceedings."

But Miami city attorney Jorge Fernandez decided to play hardball.

"Despite the clear statement from the Panel that it is not seeking access to the Coast Guard memorandum, and although federal law prohibits disclosure of that document, the city nonetheless informed us through its counsel that it will release the memorandum (along with the rest of the Operational Plan), unless a State appellate court reverses the trial court's disclosure order," the motion states. "Because of the city's position, the United States can protect this federal sensitive security information only by intervening in this appeal."

After learning the city's position, the Transportation Security Administration issued a "final order" declaring the Coast Guard memo officially "sensitive security information," making it illegal to reveal publicly. Then the TSA warned the city not to release it.

None of the parties involved would comment because the matter is still in court, although Fernandez did quip, "We think the world of our Justice Department. They have finally seen the light and have joined us in this fight."

After the Coast Guard memo's presence in the plan was revealed, Fernandez apparently had hoped the feds would write a brief to support the city during the appeal. Instead the feds narrowly sought to protect their interests. It's not clear if that's because Justice Department officials have reviewed the operational plan and agree it should not be exempt from public-records law or if there are other factors at work.

It's likely the CIP will argue the feds' involvement at this point does not prove that the entire FTAA plan is too sensitive to release. That's because all along the CIP has offered to allow the department to redact sensitive information, including the Coast Guard memo, contending the bulk of the document could still be reviewed by the panel.

Fernandez is not making many friends with this case. Earlier he crafted the losing argument that the CIP was not an independent agency, was in fact subservient to the city and the police department, and thus had no standing to file a lawsuit. Circuit Court Judge Michael Chavies didn't buy that assertion.

Fernandez's tactic of strong-arming the feds into helping him by threatening to reveal sensitive information is hardly improving his popularity. In fact the feds have in essence declared him a potential lawbreaker. After all, when the feds claim in their motion that the U.S. Government has to insert itself into this matter "to prevent the unlawful disclosure of a federal document," it is Fernandez they are talking about.


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