Tapes played in open court are public, regardless of crime law

From the Winter 2000 issue of The News Media & The Law, page 13.

Information revealed in open court and made a part of a permanent public record is "public domain" information and open under the Freedom of Information Act, even if another statute would prohibit its release, a federal appeals panel in Washington, D.C., ruled in late October.

The case involved the FBI's purge of drug dealing and racketeering in local pizza parlors. The panel also told the government to justify redactions made for "privacy."

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As a 19-year-old merchant marine, Sicilian Salvatore Cottone jumped ship in New York in 1966 and soon afterward found a job as a dishwasher in New Jersey, embarking upon a restaurant career that ended, according to court documents, with restaurants and other businesses he owned being used to launder money from his more lucrative interests in drugs and racketeering.

In January 1990, a federal jury in Norfolk, Va., convicted Cottone of 14 drug and racketeering offenses. The jury had heard a witness describe how Cottone, as proprietor of pizza parlors in Washington, D.C., and northern Virginia, paid him to torch competitors' restaurants. It also heard an undercover FBI agent describe "hit man" negotiations intended to end in a "hit" of Cottone's former partner in a pizza parlor venture in Springfield, Va.

Cottone had moved to Virginia Beach in the early 1980s and operated Michelangelo's Restaurant in Norfolk. He was convicted of selling cocaine from that restaurant.

In what it called the "pizza connection," the FBI in the late 1980s investigated the use of metropolitan Washington pizza parlors as fronts for cocaine sales, a probe that led to the jailing of 28 persons including Cottone's brother Giuseppe.

Cottone had worked for Giuseppe's release, repeatedly offering an FBI agent exchanges of information on drugs and mafiosi, hoping to buy Giuseppe reduced time.

At trial, the government introduced numerous tape recordings from Giuseppe's phone, including Cottone's efforts to solicit the hit from an FBI informant. The government only played portions of wiretaps but made the full recordings available to Cottone's counsel.

Cottone appealed his convictions to the U.S. Court of Appeals in Richmond (4th Cir.), arguing in part that wiretap excerpts used were misleading, but in March 1991 the appeals panel unanimously upheld the convictions.

In January 1992, Cottone filed a Freedom of Information Act request with the FBI seeking all documents and tape recordings cross-referenced to his name, including tapes that the government had played for the jury during his trial.

Three years later the government provided many of the documents but only two of the tapes -- and they were heavily redacted. The Omnibus Crime Control Act prohibits disclosure of the material the government is authorized to intercept so the government invoked the FOI Act's Exemption 3, which allows agencies to withhold information made secret by other laws.

The FBI also invoked the privacy arm of the Law Enforcement Exemption (Exemption 7c) to redact most information from two tapes it had recorded with consent of a party. Deleted portions of the heavily redacted tapes would, if disclosed, intrude upon the privacy of other persons recorded or mentioned, it said.

Cottone sued for the records in federal District Court in Washington, D.C., and the court ruled for the government in October 1998.

Cottone appealed to the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.). He argued that when the government played the tapes for the jury, the tapes were no longer protected by statute, they were in the public domain.

He also argued that no one's privacy could be jeopardized by release of these tapes because everyone on the tapes had either died or consented to disclosure.

But the government said it had no choice in the matter of the wiretaps obtained by lawful intercept. The Omnibus Crime Act prohibits disclosure of these communications to anyone other than law enforcement officers. The law does not provide for a "waiver," it said.

The agency also said that it had released all information it had concerning people it knew to have consented to release or knew to be dead. All other information on those tapes must be withheld, it said. Individuals suffer privacy intrusions when they are linked -- in whatever fashion -- with alleged criminal activity, it told the appeals panel. Persons named in these tapes have a significant privacy interest that ought to be protected, the government said.

In October 1999 the appeals panel reversed. Even records that are confidential under law lose their protective cloak when they are disclosed and preserved in a permanent public record, Judge Patricia Wald wrote for the unanimous appeals court.

Quoting from an earlier case she wrote, "the logic of FOIA" demands that when requested information is "truly public," enforcing an exemption fulfills no purpose. Tapes that had been played in open court must be released to Cottone, she said. Cottone could show from the record which segments had been played, and he could obtain those portions, the court said. However, it agreed that segments not played would not be available.

The FBI must also justify its redactions under the privacy exemption, the judge wrote. The agency "conclusorily asserts" in an affidavit that information pertains to third parties. Instead it must provide relatively detailed justifications, specifically identifying the reasons a particular exemption is relevant and correlating those claims with particular parts of the tapes that it will withhold. (Cottone v. Reno)