FOIA Advisor noted two weeks ago that Dan Metcalfe had died in late January at the age of 72. Apropos of “Sunshine Week,” below is more extensive tribute—with lots of citations (as Dan liked), to boot.
When I first met Dan in 2003, he asked me a question that quickened my heartbeat: “How many mistakes do you think you made on your resume?” I had prepared a lot for this interview, but not for that question. Was it just a test or did he have me dead to rights? I played it straight. “I had thought none,” I replied, “though now I have more doubt.” That was the right answer. Dan proceeded to point out one or two inconsistencies in my spacing—nothing I had ever noticed. After I got the job, which I wasn’t expecting after leaving his office, Dan surprised me with a phone call to tell me that DOJ would raise my starting salary, which I hadn’t negotiated or even complained about privately. Whether this was Dan’s doing I don’t know, but I appreciated his personal call. This was Dan (to me) in a nutshell: tough and generous.
More about Dan. He began his career as a trial attorney in the Department of Justice’s Civil Division, where he specialized in Freedom of Information Act and Privacy Act litigation. One case he handled from this period that stands out is Lesar v. DOJ, 455 F. Supp. 921 (1978), aff’d 636 F.2d 472, 486-88 (D.C. Cir. 1980), which upheld the government’s withholding of personal information about Dr. Martin Luther King from records of its assassination investigation out of respect for the privacy interests of his surviving family. This concept of “survivor privacy” was embraced by the U.S. Supreme Court a quarter century later in the landmark FOIA case, NARA v. Favish, 541 U.S. 157 (2004), which positively cited Lesar v. DOJ. Dan also was involved in some of the earliest FOIA litigation establishing the government’s appropriate use of a Glomar response,[1].
What Dan will be most remembered for, of course, is his 25-year run at DOJ’s Office of Information and Privacy, which he co-directed with Richard (Dick) Huff beginning in 1981.[2] Among his many responsibilities, Dan directly supervised the defense of—by his count—more than 500 FOIA and Privacy Act litigation cases.[3] He also co-authored the DOJ’s Guide to the Freedom of Information Act, a legal treatise analyzing key judicial decisions that was relied on by both government and private practitioners. His speaking appearances with Mr. Huff at training sessions and other events were audience favorites and became popularly known as the “Dick and Dan show.”
Dan was only 55 years old when he retired from DOJ in 2007 after 30 years of service.[4] Wasting little time, he joined American University’s Washington College of Law later that year as both an adjunct professor and the founding director of the Collaboration on Government Secrecy, the first educational center of its kind. In addition to his academic endeavors, which included hosting Sunshine Week events and other conferences, Dan found time to flex his litigation skills when he represented law school graduates in a protracted and ultimately successful Privacy Act lawsuit against DOJ.[5] Dan closed CGS in 2014 to care for his ailing father, but he continued to teach law for several more years.
I cannot do justice to Dan’s innumerable professional accomplishments, but Dan will not be shortchanged. Several months before his death, Dan published a memoir (with no shortage of endnotes) that chronicled his career and discussed notable transparency issues. [6] Given the meticulous written work for which Dan was known, as well as his near-photographic memory, the last sentence of the book’s Preface rings loud and true: “any factual error . . . is . . . entirely mine, only mine and actually doubly mine—but I warn anyone who thinks I made one that, by definition, ‘I was there,’ and that I kept darn good notes, of course.”[7]
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[1] See, e.g., Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) (approving "Glomarization" that acknowledged overt contacts with educational institution but refused to confirm or deny covert contacts).
[2] See, e.g., DOJ, FOIA Update, “New FOIA Office Established,” Vol. III, No. 2 (1982), https://bit.ly/49Sns9O. The name of the office was changed to the Office of Information Policy in March 2009, see DOJ, FOIA Post, “Annual FOIA Report Q&As,” (2009), https://bit.ly/3Tks2XV, in large part because OIP’s Privacy Act responsibilities had been transferred to DOJ’s Office of Privacy and Civil Liberties in March 2006.
[3] I can claim credit for working on a few of those cases for Dan, whose edits in purple magic marker brightened many pages. A streak of two or three purple-free pages was an accomplishment for a rookie OIP litigator.
[4] DOJ, FOIA Post, “OIP Holds Silver Anniversary Celebration,” (2006), https://bit.ly/3wCI4ol. Dan was appointed to Senior Executive Service at age 32, which may have made him the youngest SES appointee then and since.
[5] Class of Attorneys Sues DOJ Over Job Denials Based on Ideology, Courthouse News Serv., July 1, 2008, https://www.courthousenews.com/class-of-attorneys-sues-dojover-job-denials-based-on-ideology/. Following a six-year odyssey to the D.C. Circuit, the lawsuit was settled in 2014 for $572,000. See Ben James, DOJ Settles Political-Bias Claims Over Honors Program, Law360, Mar. 17, 2014, https://www.law360.com/employment-authority/articles/519041/doj-settles-political-bias-claims-over-honors-program.
[6] Daniel J. Metcalfe, Inside Justice: Secrecy at Work (2023).
[7] Id. at 3.
