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2002 FOI update: Access in the courts

By Harry Hammitt

There were significant changes in policies and attitudes toward access to government information during 2001, but little of that came through the courts. After the terrorist attacks of Sept. 11, concern about protecting personal privacy gave way to a more generalized public feeling that those who didn’t want to reveal personal information probably had something to hide.

Instead of personal privacy being seen as the counter-balance of access, concerns about domestic security led to a greater focus on the balance between access and national security. Routinely available public information was taken down from government Web sites across the country, largely as the result of not terribly well thought-out concerns that terrorists might be able to use existing information about power plants and all kinds of other potentially vulnerable sites to plan new attacks.

Attorney General John Ashcroft issued a new memo on Freedom of Information Act implementation in October that essentially reversed the tone of the Clinton administration’s memo. Agencies were told that the exemptions in the FOIA were every bit as important as the idea of disclosing government information and that agencies should consider them thoroughly before responding to any request. If an agency were forced to go to court, the Justice Department would be glad to defend it. The new standard for withholding information went from “foreseeable harm” to “sound legal basis.”

Court action on access to government information was scattered throughout the year. The most important additions to the case law were the handful that told us more about how the expedited review process included in the 1996 EFOIA amendments should be interpreted.

In the first appellate case, Al-Fayed v. CIA (D.C. Cir. July 13, 2001), the court reversed the trial court and found that a court must hear an appeal of an agency’s denial of expedited processing de novo, rather than the more deferential “arbitrary and capricious” standard.

In the other case adding to judicial interpretation on this provision, Judicial Watch v. United States Naval Observatory (D.D.C., Sept. 4, 2001), Judge Ellen Segal Huvelle ruled that the public interest organization could not litigate the agency’s “no records” response to its request when its suit was filed on the basis of a denial of expedited processing. Huvelle noted that once an agency had substantively responded the requester was required to file an administrative appeal even if they were already in court on another issue.

Privacy cases

There were just a few privacy cases during 2001. They included:

  • Baltimore Sun v. U.S. Customs Service (D.D.Md, Feb. 13, 2001). The court ruled that “receivers of seized property do not possess categorically protected privacy interests in their names and addresses.” The case involved the newspaper’s attempt to get information on the purchasers of property seized by the government as the result of criminal prosecution.

  • Sherman v. Dept. of the Army, (5th Cir., Mar. 7, 2001). In one of the most disturbing decisions of 2001, the 5th U.S. Circuit Court Appeals of ruled that the Army could withhold records concerning medal awards given during several years of the Vietnam War until the requester agreed to pay an estimated $350,000 to $1 million to redact Social Security numbers from each award citation.

  • Lissner v. U.S. Customs Service, (9th Cir., Mar. 12, 2001). In another appellate ruling, the 9th Circuit found that two local California police officers had a lowered expectation of privacy in details concerning their punishment for trying to smuggle illegal steroids across the Mexican border. The court found that the way in which the Customs Service handled the incident was a matter of public interest.

  • City of Chicago v. Dept. of Treasury (D.D.N. Ill, Oct. 4, 2001). In this case, a district court in Chicago found that disclosure of information about multiple gun sales from the Bureau of Alcohol, Tobacco and Firearms’ database would not be an invasion of privacy.

Other judicial activity

The Supreme Court issued a ruling in May that had some general implications for the debate between access and privacy. In Bartnicki v. Vopper (May 21, 2001), the Supreme Court ruled that it would violate the First Amendment to punish a talk radio host for disseminating information obtained by an illegal interception of a cell phone conversation, at least where the media was not a party to the illegal behavior. The case can clearly be read as a victory for dissemination over privacy, at least where it involves the press.

A series of district court judges ended speculation as to whether the White House could be subject to the Privacy Act. After Judge Royce Lamberth found previously that President Clinton had violated the Privacy Act by disclosing the contents of a letter he had received from Kathleen Willey, four other judges faced with the same legal issue all found that the Privacy Act did not apply to the White House. The judges unanimously agreed that because the definition of “agency” in the Privacy Act is identical to that in the FOIA, if the White House was not subject to FOIA it could not be subject to the Privacy Act. The cases involved a Who’s Who of individuals who played roles in various Clinton era scandals, including Gennifer Flowers and Linda Tripp.

Revisiting the same issue previously decided after the 1990 census, a federal court ruling in Oregon, Carter v. Dept. of Commerce (D. Ore., Nov. 20, 2001), found that the Commerce Department could not withhold, under the deliberative process privilege for protecting advice and recommendations, sampling data from the 2000 census that was not used in determining the population count.

The 2nd Circuit Court of Appeals, in County of Suffolk v. First American Real Estate Solutions (July 25, 2001), found that a New York county could copyright its tax maps and protect them from being disseminated through commercial brokers without permission of the county. While the case did not involve access to the maps, it did involve re-dissemination of the records. Bob Freeman, executive director of the Committee on Open Government, had previously written an opinion finding the copyright was at odds with the state Freedom of Information Law. While the trial court agreed with Freeman, the court of appeals found that there was no conflict between the two laws and upheld the county’s right to exercise copyright protection.

The terrorist attacks of last year introduced a new element that in the short run has negative implications for access. The heightened concern with national security, coupled with the present administration’s general hostility towards access to government information, is likely to make 2002 even worse than 2001.

Harry Hammitt is the editor of Access Reports.

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