We Are Unlikely To Know Who Prevailed In Georgia Before Tomorrow Around Midday…

The runoff races for the two Senate seats there are. . . each essentially toss-ups.

It may come down to just a thousand or fewer votes, state-wide, in each case. So we should be prepared to wait it out. . . patiently — even though effective control of the Senate, and thus the possibility of Democratic agenda setting roles last seen in the 2008 to 2010 period (when Messrs. Obama and Biden were able to broker what became the ACA of 2010. . . or Obamacare, if you prefer — the most significant US health care delivery / reform measure ever enacted) hangs in the balance, here overnight.

In the mean time, in DC, the NAACP LDF (one of several of my backgrounders is here) has moved to compel Baby T’s law enforcement taskforce to disclose all its documents, in the suit it has won in federal court there. Here’s the full memo of law, from the motion filing, and a bit:

. . .FACA’s disclosure requirement is not dependent on who ultimately reviewed any documents or how they were used. Instead, in order to determine whether an advisory committee’s “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” must be publicly disclosed, Section 10(b) asks whether the documents were “made available to or prepared for or by” the advisory committee. 5 U.S.C. app. 2 § 10(b). Thus, the document’s origins and intended audience are critical—for example, a document “prepared for” the advisory committee (including public comments or staff work product) must be disclosed under Section 10(b), even if it was ultimately only shared with a subset of the committee’s membership. The D.C. Circuit recognized as much in Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), finding that Section 10(b) required disclosure of records that were not shared with all committee members.

Similarly, a document “prepared. . . by” one or more members on behalf of the advisory committee must also be disclosed under Section 10(b), even if the document itself is nonsubstantive or administrative. And as courts in this district have determined, an advisory committee’s working groups may themselves be subject to disclosure under FACA where — as here — they are substantively involved in holding hearings and drafting the committee’s work product.

While some materials within Defendants’ asserted categories may be properly withheld — such as personal messages sent to Commissioners or privileged documents concerning this litigation — Defendants have not provided sufficient information to identify and exclude those materials from production. Therefore, Plaintiff respectfully requests the Court order Defendants to disclose all documents that were “made available to,” “prepared for” or “prepared. . . by” the Commission and its working groups, including any such documents found in the eleven categories of documents currently being withheld; and further order Defendants to provide an index describing with specificity any documents they continue to withhold based on any proposed exemption or privilege. . . .

Onward, into the sunshine — and do trust that our system of ordered liberty is self-healing, and righting itself. . . as I type this, in real time — primarily with all the voter enthusiasm in the Peach State. As ever, grinning.


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