In a legal brief filed in federal court last week, the U.S. Department of Justice denies allegations by a gay rights group that it has violated the Freedom of Information Act by refusing to release hundreds, if not thousands, of documents linked to an anti-gay executive order issued by President Dwight D. Eisenhower in 1954.
The DOJ was responding to a lawsuit filed against it in April by the Mattachine Society of Washington, D.C., an LGBT rights group that specializes in uncovering archival documents showing how the federal government persecuted LGBT people in the not too distant past.
The lawsuit, filed in U.S. District Court for the District of Columbia, calls for the release of all documents linked to what it says was a massive purge of gay and lesbian employees of the federal government in the 1950s and 1960s as a result of Executive Order 10450.
“The information that plaintiff seeks in its Freedom of Information Act (‘FOIA’) request is exempt from disclosure under FOIA,” says the DOJ’s legal brief, which was filed June 30 by lawyers from the Office of the U.S. Attorney for the District of Columbia. U.S. Attorneys are part of a division within the DOJ.
The DOJ brief also says the lawsuit “fails to state a claim upon which relief can be granted” and calls on U.S. District Court Judge Royce Lamberth, who is presiding over the case, to “deny plaintiff any relief.”
The Mattachine Society said in a statement that its lawsuit was the “culmination of three years of delay and government excuses for withholding documents, which the department has identified and refuses to release.”
The lawsuit says that despite repeated requests for documents created over a 40-year period, DOJ and the FBI had released only 552 pages of documents and withheld 583 pages of documents.
“It defies logic to believe that only 1,135 pages concerning Executive Order 10450 were created by the government under a program that lasted 40 years and resulted in terminating the federal employment of thousands of LGBT Americans,” the lawsuit says.
Citing accounts by historians and news media reports from the 1950s and 1960s, the lawsuit says an estimated 7,000 to 10,000 federal employees were fired on grounds of homosexuality in the 1950s alone following the Eisenhower executive order.
The executive order, among other things, characterizes homosexuals as being prone to “infamous, dishonest, immoral, or notoriously disgraceful conduct.” It claimed they posed a serious security risk and were unsuitable for federal employment.
In its June 30 response, DOJ disputes the number of documents the lawsuit claims it released, saying it has “produced approximately 816 pages of documents.” It says repeatedly throughout its response that, “certain pages of responsive documents were exempt from disclosure pursuant to application FOIA exemptions.”
The DOJ response was referring to a provision in the Freedom of Information Act that allows government agencies to withhold documents on grounds that releasing them could jeopardize national security, breach confidential government sources, violate the confidentiality of a grand jury, or jeopardize law enforcement investigations.
Attorneys with the D.C. law firm McDermott Will & Emery, which is representing the Mattachine Society on a pro bono basis, dispute claims that the documents the group is requesting are exempt from FOIA.
“On information and belief, the requested agency records have been improperly withheld in that the FOIA requires their disclosure and they do not fall within any of FOIA’s exemptions from required disclosure, including but not limited to those exemptions cited by defendant,” the lawsuit says.
The lawsuit comes at a time when U.S. Attorney General Loretta Lynch, who heads the DOJ, has been praised by LGBT activists for her recent statements and policy positions in support of LGBT rights in general and transgender rights in particular.
It couldn’t immediately be determined whether the U.S. Attorney’s office consulted with Lynch over how to respond to the Mattachine Society lawsuit.
A DOJ spokesperson didn’t reply to a request for comment by the Washington Blade as of Wednesday.
William Miller, a spokesperson for Channing Phillips, the U.S. Attorney for D.C., said, “We typically do not comment on pending litigation and have no comment on this particular case.”
“I think now is the time for the Justice Department to release what it has on this executive order and stop these delays,” said Charles Francis, president of the Mattachine Society of Washington
The executive order began a period of “brutal discrimination against LGBT Americans,” he said.