Feds must justify secrecy on Young investigation files

Richard Mauer
Congressman Don Young addresses the Alaska Federation of Natives convention Thursday, October 20, 2011, at the Dena'ina Convention Center in Anchorage. Marc Lester / Anchorage Daily News

A federal judge in Washington, D.C., ruled Tuesday that the Justice Department was wrong in categorically refusing to provide any of its criminal investigative files on U.S. Rep. Don Young, R-Alaska, to an anti-corruption public interest group.

The judge, in rejecting the Justice Department's request to dismiss the Freedom of Information Act lawsuit, instead ordered the agency to produce an index of its material on Young.

The case was brought in April by the nonprofit Citizens for Responsibility and Ethics in Washington after the Justice Department turned down its public-records request on Young.

CREW sought the records of two investigations: allegations of bribery and other criminal activity between Young and the defunct Alaska oil-field contractor Veco Corp.; and an FBI investigation requested by Congress in 2008 into an earmark which was mysteriously inserted into a transportation bill to study a highway interchange in Florida.

The Coconut Road interchange was sought by a developer who helped raise $40,000 for Young's re-election in 2006. The earmark, inserted when Young chaired the House Transportation Committee, emerged as a "correction" in the transportation bill after it was signed by President George W. Bush. Young has never publicly explained how the bill was changed, though he said construction of the interchange would be beneficial to the area.

In 2010, Young announced that the Justice Department had told his attorney that it would not file any charges and had concluded its investigation. Young has refused to discuss the matters further. He was not a party in the CREW lawsuit.

The Justice Department said Young's privacy rights overruled the public interest in disclosing the investigative files.

But in her decision, U.S. District Judge Gladys Kessler said the agency was improperly categorical in its flat denial of CREW's request. While her order won't necessarily result in release in any investigative material, she will allow the public interest group to argue which documents should be made public.

Kessler, a 1994 appointee of President Bill Clinton, gave the Justice Department 60 days to produce a list of documents that would satisfy CREW's Freedom of Information request. She said she would entertain a motion to seal the list or the legal arguments about them, possibly preventing disclosure until her final ruling.

CREW said it was gratified by Kessler's decision.

"When will the Justice Department stop trying to protect politicians from the American people?" CREW's executive director, Melanie Sloan, said in a prepared statement. "No government officials should be above the law. Why has Rep. Young been allowed to avoid consequences for his actions?"

The Justice Department didn't respond to a request for comment to a spokeswoman.

A spokesman for Young said the congressman would make no comment on Kessler's decision.

Young had been under investigation in Alaska since at least 2006 over allegations he accepted illegal campaign contributions and gifts from Veco and two of its officials convicted of bribery, chairman Bill Allen and vice president Rick Smith.

Kessler's decision focused on the Coconut Road earmark, using strong language to support the public's right to know.

"It is difficult to understand how there could not be a substantial public interest in disclosure of documents regarding the manner in which (the Justice Department) handled high profile allegations of public corruption about an elected official," she wrote. "Clearly, the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job."

She agreed that Young deserves at least limited privacy protection even as an elected official. But, she ruled, Young effectively waived his rights by commenting on the case.

Congress asked the Justice Department to investigate the earmark in a 2008 bill, she noted. Young acknowledged the investigation from the House floor, denying he did anything wrong. There was nothing secret about the matter, she said.

"The court concludes that the balancing of Rep. Young's privacy interest against the public interest in releasing the requested documents tips strongly in favor of the public interest," she wrote. "Above all, because release of this information would 'contribute significantly to public understanding of the operations or activities of the government,' the public interest in releasing this information is very strong," she said, quoting the language of a 2009 appeals court decision.

Reach Richard Mauer at rmauer@adn.com or 257-4345.

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