High court to decide three records access cases

The three cases before the U.S. Supreme Court this term that have piqued the interest of journalists and media organizations would seem to have little in common. One involves a challenge to a California law that prohibits the commercial use of certain police records. Another considers whether Congress had the authority to order states to withhold records. The third will have the court interpreting an exemption to the federal Freedom of Information Act.

Upon closer inspection, a common theme emerges. All three cases involve a person’s right to receive information. The Court may decide these cases on theories ranging from the amount of First Amendment protection commercial speech deserves to whether federalism prevents the federal government from telling the states what information about its citizens it may release to the public. Regardless of the legal theories, each case could have far-reaching implications for journalists.

Three cases involving the right of access to government information will be decided by the U.S. Supreme Court this term.

In the first of the cases to be heard by the Court, LAPD v. United Reporting Publishing, a California company has challenged the constitutionality of a state law that allows access to certain police records for journalists, scholars, and a few other categories of users, but prohibits access for purely commercial use.

The law, which was passed by the legislature in 1995 at the behest of law enforcement agencies, amended an open records provision that made general information about arrestees public. The amended law requires any person seeking access to the addresses of arrestees to promise, under penalty of perjury, that he or she will use the information only for one of the authorized uses.

The original intent of the law, according to its supporters, was to save money because law enforcement agencies would no longer need to prepare large databases for commercial sale. They later asserted the law was needed to protect prisoners from possible harassment by lawyers, and other counselors seeking clients, and from any stigmatization that might come from being on a public list of people who had been arrested.

United Reporting publishes a newsletter, the Register, that contains articles on legal subjects and lists of arrestees’ names and addresses. Its subscribers use the information to solicit business. Two weeks before the law’s July 1, 1996, effective date, United Reporting filed suit in federal District Court in San Diego, claiming the law is unconstitutional and seeking an injunction against its enforcement. The court denied the company’s request, but the state attorney general promised not to enforce the law against United Reporting.

After law enforcement agencies statewide denied its requests for addresses on July 1, the company filed an amended complaint in the District Court. Most cities and counties capitulated, but the Los Angeles Police Department, among others, persisted in denying United Reporting the addresses. The District Court ruled in favor of United Reporting, saying that the law was an impermissible restriction on commercial speech. It also found the agencies’ privacy argument was without merit, because having one’s name and address published in a newspaper of general circulation was far more of a privacy invasion than having the information in a special interest publication such as United Reporting’s.

The U.S. Court of Appeals in San Francisco (9th Cir.) affirmed, saying that while the state’s interests may be substantial, the law fails to advance those interests. The law’s many exceptions allowing the release of addresses, the court said, do not support the contention that the law is meant to protect privacy.

In oral arguments before the U.S. Supreme Court on Oct. 13, 1999, the LAPD asserted that the law only affected access to government information, and did not restrict commercial speech. Because it is allowed to determine what government information is public, the state should also be allowed to determine who is able to receive that information. Several justices, in particular Justice David Souter, challenged the LAPD’s claim that the case was not a free speech case, suggesting instead that the case squarely involved commercial speech rights under the First Amendment.

Justice Stephen Breyer asked LAPD why it would be permissible under the law for a newspaper such as the Los Angeles Times to publish arrestee addresses and then to have attorneys solicit clients from that newspaper list, but would be illegal for the Times or anyone else to get the same information directly from the police and use it to attract customers.

In its argument, United Reporting continued that theme, saying the law on its face is an unconstitutional restraint on commercial speech because it prevents an individual or company from using the addresses to solicit business. The law, the company urged, requires some level of constitutional analysis because it involves more than just access to information.

Justice Ruth Bader Ginsberg, however, questioned United Reporting about whether arrestees and others should have their privacy interests in their addresses and other information protected.

In its friend-of-the-court brief supporting United Reporting, the Reporters Committee argued states should not be allowed to differentiate between classes of information users and urged the court to apply its commercial-speech rules to the case.

Should the Court rule that the law does infringe on commercial speech, LAPD and some members of the Court suggested that instead of limiting access to the information to certain users, the police may restrict access to everyone.

The issue of protecting personal privacy was a central theme behind Congress’s decision to pass the Drivers Privacy Protection Act. That 1994 law, which was intended to limit the bulk sale of driver information, requires states not to make public drivers’ license and motor-vehicle information under the threat of fines and other civil penalties. Before its passage, at least half of the states had laws making the information covered by the act public records.

The DPPA contains 14 exceptions, however, that allow the release and use of driver information to users such as insurers, commercial transportation companies, and even towing services. To gain access to the information, one must promise not to use it for an unauthorized use. Furthermore, the act requires states to allow citizens to “opt out,” or chose not to have their information released under the exceptions.

In Reno v. Condon, which the court will hear Nov. 10, 1999, South Carolina is challenging the DPPA as an unconstitutional use of federal power. The state has passed several laws that were intended to comply with the DPPA, but upon application, the various state laws required by the DPPA and its exceptions and opt-out provision, in particular, were too cumbersome to administer, the state claims. In its brief to the Court, the state argues the law violates the Tenth Amendment because it “thrusts upon the States all of the day-to-day responsibility for administering its complex provisions” and because it usurps the sovereignty of individual states.

The federal government, in its briefs, denies that the DPPA acts to commandeer state law and sovereignty, and says it is not a violation of the Tenth Amendment. It instead argues the law is an authorized use of Congress’s regulatory power under the Commerce Clause to the Constitution, because it will “keep the channels of commerce free of ‘immoral and injurious uses’ . . . Congress has done so in the DPPA by acting to ensure that commerce in personal information does not facilitate stalking, identity fraud, and invasions of privacy.”

The law should be struck down, the Reporters Committee argued in its brief supporting South Carolina, because no constitutional right to privacy exists. While it is uncertain whether South Carolina’s federalism argument will cause the DPPA to be struck down, the threat the DPPA poses to journalists who rely on driving records as sources of information is certain.

The court also will be confronted with the question of how to interpret the “national security” exemption to the Freedom of Information Act when it hears arguments in United States v. Weatherhead later this term.

The act presumes government information is public unless a specific exemption applies to keep it secret. At issue is whether the national security exemption can be used to prevent the release of a letter from the British government to American officials.

The case involves the indictment of a British national, Sally-Anne Croft, by the American government on criminal conspiracy charges. In July 1994, Croft was extradited to the United States amid concern that the proceedings against her would have to be moved from Oregon to ensure a fair trial. Great Britain and the United States had corresponded about the issue, and on Nov. 29, 1994, Croft’s attorney, Leslie Weatherhead, requested a copy of the correspondence concerning his client’s extradition to the United States and the need for a change of venue.

After more than six months, the U.S. Department of Justice replied to Weatherhead, saying that a letter did exist but that it was now in the possession of the Department of State. Despite additional requests from Weatherhead, the U.S. government refused to release the letter, but it did not object to release on national security grounds. On Nov. 17, 1995, Weatherhead sued the departments of Justice and State under the FOI Act to release the letter. In December, the Department of State announced that it had classified the letter in October and that it would not release it.

The federal district judge in Spokane initially ruled in favor of Weatherhead. However, at the government’s urging, he reconsidered, and read the letter in chambers. He then reversed his own decision, saying it would be clear to anyone reading the letter why it must not be disclosed. However, he refused to elaborate as to how the national security exemption (Exemption 1) applied, and Weatherhead appealed to the U.S. Court of Appeals in San Francisco (9th Cir.).

Answering the appeal, several administration officials gave affidavits saying that foreign governments assume that all correspondence between governments will be kept secret, and a decision by the United States not to honor this assumption would injure law enforcement and diplomacy among nations.

They said the court should give great deference to the expertise of agency officials.

The Court of Appeals found that the letter was not covered by the national security exemption. It relied on the Executive Order on Classification issued by President Clinton in 1995. That order differs radically from the previous order issued by President Reagan. It provides that records are presumed to be open and that a specific reason is needed to rebut that presumption. The court was not convinced by the arguments made by the government officials that release of the letter could harm international relations. The letter, it said, was “innocuous.”

The U.S. Supreme Court will probably address whether the presumption of broad disclosure embodied in the Clinton order will force the release of the letter, or whether the broader leeway sought by the agencies in classifying records will prevail.