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FOI UPDATE 2000: In the courts

By Harry Hammitt

03.14.00

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The past year's developments in Freedom of Information Act litigation were eclipsed by two Supreme Court decisions, neither of which were FOIA cases. Together, they may have significant impact on future information policy. In deciding Los Angeles Police Dept. v. United Reporting Publishing Corporation and Reno v. Condon, the Supreme Court set important potential restrictions on access to public records. As for the FOIA itself, courts continued to refine the privacy parameters of access, sometimes in startling ways. Courts also considered the congressional intent of the Electronic Freedom of Information Act amendments. Finally, the Supreme Court allowed the government to persuade it not to hear a national security case which the government only months before had asked the court to hear on an expedited basis.

Information policy
In two disappointingly short decisions, the Supreme Court managed to rearrange the information landscape. Ruling in Los Angeles Police Dept. v. United Reporting Publishing Corporation, the Court upheld a California law that allowed substantial access to criminal history record data but prohibited its use for commercial purposes. United Reporting, which packaged and sold the data to attorneys and others, had convinced the Ninth Circuit that the prohibition violated its First Amendment rights. That court found that the prohibition, which was designed to protect the privacy of both accused and victims listed in the records, did not achieve its aims because the data was available to the press and other groups, but improperly discriminated against commercial users. The Supreme Court, in a plurality decision by Chief Justice William Rehnquist, found the restriction was appropriate. Most importantly, it ruled that the government had no obligation to provide access to anyone if it chose not to do so. Justice Ruth Ginsburg suggested that some access was better than none.

The second case, Reno v. Condon, was the long-awaited decision challenging the constitutionality of the Drivers Privacy Protection Act as a violation of the Tenth Amendment, an attempt by Congress to overstep its constitutional jurisdiction and force the states to limit public access to their motor vehicle records. In a unanimous decision, the court had little trouble finding that the law was proper under the Commerce Clause because the records were sold in the stream of interstate commerce. This ruling opens a vast potential federal jurisdiction over state and local public records, allowing Congress to decide to limit access to such records because of privacy concerns. The only limitation is that the records must be in interstate commerce, which is the case with many public records already.

Privacy
Privacy continued to be an obstacle to access, but there were several interesting twists. The year began with the D.C. Circuit reaching the conclusion that a tracer should be given the names of depositors at several failed banks because they would be willing to give up their privacy if there were potential financial rewards.

A few months later, a district court judge in New Orleans ruled that the New Orleans Times-Picayune should not have access to the mug shot of San Francisco 49ers owner Edward DeBartolo because it would be an invasion of his privacy.

Later in the year, a district court judge in Washington, D.C., found that the Interior Department must disclose the names and addresses of private individuals who had submitted comments on a proposed rulemaking for re-introducing the grizzly bear into parts of Montana and Idaho. The case is under appeal at the D.C. Circuit.

Finally, in a case that had many parallels with the United Reporting Publishing case, the Tenth Circuit ruled that the FCC had violated the commercial speech rights of telecommunications carriers by prohibiting them from contacting current customers concerning unrelated products unless the customers had explicitly agreed to the contact. That case, US West v. FCC, is on appeal to the full Tenth Circuit.

EFOIA amendments
Access advocates in Congress tried to roll back the core purpose findings of the Supreme Court in Reporters Committee by inserting language in the findings of the EFOIA amendments indicating that the FOIA was meant to be used for any purpose and was not limited to disclosing information pertaining to government operations or activities. In two challenges, one in Florida and one in California, both courts rejected that reading out of hand, concluding that if Congress had actually meant to undo the core purpose finding it would have directly amended the FOIA, rather than providing an interpretation of congressional intent. The California case, Lissner v. Customs Service, is before the Ninth Circuit.

National security
The Supreme Court was set to hear oral arguments in USA v. Weatherhead, a national security case, last December. It would have been the first time the court had considered Exemption 1 since EPA v. Mink, the first FOIA case the court decided in 1973. Weatherhead involved disclosure of a letter from the British Home Office concerning extradition of two British citizens to stand trial for conspiracy to murder the U.S. Attorney in Oregon.

The district court originally said the State Department had not met its burden under the Executive Order issued during the Clinton administration, but, after viewing the letter in chambers, changed its mind on the matter of disclosure without saying exactly why it had done so. On appeal, a panel of the Ninth Circuit ruled that the State Department had failed to explain why disclosure of the letter would harm foreign relations and ordered it disclosed. The Supreme Court picked up the case on expedited review. Two weeks before argument was scheduled, however, the government realized that the requester had already seen the letter because the British consul in Seattle had disclosed it to him, although the requester claimed to be unaware that this was a legitimate copy of the letter. The government immediately asked the Supreme Court to moot the issue, particularly requesting that the Ninth Circuit's decision be vacated. The court complied, and the case became history, leaving those on both sides of the issue to wonder what the court might have done if faced with the substantive issue.

Harry Hammitt is editor and publisher of Access Reports.



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