Judge rules against Homeland Security Office in privacy suit

WASHINGTON -- The Office of Homeland Security lost the first round in a legal fight to keep its activities secret as a federal judge ruled it will have to answer questions about its power over other federal agencies.

U.S. District Court Judge Colleen Kollar-Kotelly ordered the office to prove it has no authority other than helping and advising President Bush if it wants to dismiss a lawsuit seeking access to its records.

The ruling last week favored the Washington-based Electronic Privacy Information Center, which is trying to get Homeland Security records on proposals for a national driver's license and for a "trusted flyer" program that relies on biometric information to identify airline passengers.

Kollar-Kotelly said the center "may inquire into the nature of the authority delegated to (the Office of Homeland Security) to determine whether or not it possesses independent authority." David Sobel, attorney for the privacy group, called the ruling an intermediate victory over Homeland Security Director Tom Ridge.

"This is about opening a window into the activities of what has been, until now, a very secretive entity," Sobel said.

Homeland Security tried to get the lawsuit dismissed, claiming it doesn't have to release records because it's not an agency.

The privacy group said it didn't have enough information to prove otherwise and asked for permission to find out how the office exercises its authority.

The privacy group has until Feb. 24 to find out whether other agencies receive instructions or directions from Homeland Security or if they have to get the office's approval for policies or activities.

Homeland Security spokesman Brian Roehrkasse said the office is reviewing the opinion and working with the Justice Department to figure out what to do next.

The office, created by President Bush after the Sept. 11 terrorist attacks, has consistently denied that it's an agency. Earlier this year, Ridge refused to testify before Congress about the office's budget on the grounds that he merely advises President Bush.

Homeland Security will no longer be able to make that argument when it becomes a new federal department on Jan. 24.

Sobel said Homeland Security's increased power and reach will warrant even closer public oversight.

The new department, for example, will receive information from the FBI, which has expanded powers under the USA Patriot Act, passed in response to the Sept. 11 terror attacks, Sobel said.

"We're already seeing an effort on the part of all the separate entities to really close the door on any scrutiny," he said.

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On the Net

Electronic Privacy Information Institute: www.epic.org

Office of Homeland Security: www.whitehouse.gov/homeland/