Newsroom search request must be processed

Two journalists with a long-time interest in newsroom searches are trying to learn through Freedom of Information Act requests if the Privacy Protection Act is effective. Congress passed the Privacy Protection Act after the U.S. Supreme Court refused to hold that police who raided the Stanford Daily had violated the First and Fourth amendments, and it is supposed to bar most newsroom searches by law enforcement authorities.

Daniel Fidducia and Edward Kohn, who worked on the Stanford Daily when the raid occurred, have been trying since 1986 to get government records on enforcement of the act. The U.S. Court of Appeals in San Francisco (9th Cir) told the government in early August that its delays violate the law, but that it could invoke a privacy exemption to “protect” the journalists who were searched.

Nine officers from the Palo Alto, Calif., Police Department and the Santa Clara County Sheriff’s Department in April 1971 arrived at the Stanford University Hospital, where demonstrators had seized administrative offices and set up a barricade.

They forced a door open and were attacked. All of the officers were injured, but they could only identify two of their attackers.

After the Stanford Daily, Stanford University’s student newspaper, published photographs of the clash between demonstrators and police, the Santa Clara District Attorney obtained a warrant to search the newspaper’s office for photographs that might identify the attackers.

Although none of the newspaper staff was accused of any wrongdoing, police officers searched their photographic laboratories, filing cabinets, desks, and waste baskets.

The newspaper and several staff members then sued Palo Alto Police Chief James Zurcher and other officials in federal District Court in Sacramento, arguing successfully at the District Court and before the U.S. Court of Appeals in San Francisco (9th Cir.) that when the government conducts a search of a newsroom merely because the newspaper has reported on crimes, it violates the media’s Fourth Amendment right against unreasonable searches and their First Amendment rights.

However, in May 1978, a divided U.S. Supreme Court reversed, with Justice Byron White writing that reasonable restraints on searches and on the issuance of search warrants were protection enough for news organizations. (NM&L, Spring 1978)

Congress reacted to that decision by enacting the Privacy Protection Act, which prohibits federal and state officers and employees from searching or seizing journalists’ work or documentary materials except in certain limited circumstances.

Daniel Fidducia and Edward Kohn, who were student journalists at the Stanford Daily when the police searched the newsroom, have remained keenly interested in the success of the Privacy Protection Act.

From 1986 to 1993, Fidducia, and then Fidducia and Kohn, tried first through Freedom of Information Act requests, and then through lawsuits in federal District Court in Sacramento to get specific information from the Department of Justice and other agencies on how the Privacy Protection Act is working.

They asked for records showing attempts to get search warrants against persons who were not accused of wrongdoing, records showing disciplinary actions against federal officers or employees who have violated the act, and other federal records concerning the act.

In the course of the litigation, Fidducia and Kohn received hundreds of records, but also faced numerous denials and refusals to respond.

For instance, Fidducia and Kohn had requested all records on FBI searches of Richard Seelmeyer and Coqui Santaliz. In 1988, agents searched the home of Seelmeyer, a former congressional aide who published a military newsletter. Agents then held a news conference to announce they had conducted the search to look for records that might show fraud and bribery in Pentagon weapons procurement.

Santaliz had spoken angrily and at length to the press at a press conference she convened with Norman Mailer and several other prominent writers after the FBI searched her home. She accused the agency of taking her typewriter and a draft of her novel because of her support for Puerto Rican independence.

The FBI invoked the FOI Act’s privacy exemptions (6 and 7c) and refused to confirm or deny that it had any records at all on Seelmeyer or Santaliz. To do so would violate their privacy, it claimed.

The agency simply did not process some requests, such as one for records on searches of a Minneapolis newspaper and a Spokane, Wash. television station.

Similarly, the Immigration and Naturalization Service did not acknowledge in any way a request for records on its 1980 Search of La Opinion, a Spanish language newspaper in Los Angeles that had been searched not long after it ran articles critical of the INS.

The District Court reviewed affidavits from some of the agencies regarding the use of exemptions to deny records. Some agencies provided no affidavits.

In May 1997, the District Court ruled for the government with minor exceptions. It approved the use of the privacy exemptions to protect records of Seelmeyer and Santaliz. It granted the FBI a stay until 2001 on processing the requests for the Minneapolis and Spokane searches. It accepted the affidavits of agency employees and did not order the agencies that had not submitted them to do so.

The court did not acknowledge the request to the INS for records of the La Opinion search.

Fidducia and Kohn appealed to the U.S. Court of Appeals in San Francisco.

The “cat is out of the bag” on the searches of Seelmeyer and Santaliz, they argued. If information has been revealed — particularly when it has been made public by the agency itself, a subsequent disclosure is not logically an invasion of privacy, they said. More importantly, there is a strong public interest in knowing how the government conducts searches that would outweigh any privacy interest, they told the court.

They argued that the time delays were simply illegal. Although, in the past, failed efforts to get funding had been considered some justification for delays, the FBI has new funding and has still not provided records, they said. They also noted that even though the FBI had requested funding in some years, the Justice Department had not necessarily forwarded those requests to Congress.

Fidducia and Kohn complained that the lower court had accepted affidavits that did not specifically address the records withheld and that it had not required affidavits from some agencies.

They also noted that the court had not addressed its request for INS records of the La Opinion search.

The government argued that passage of time may have made the searches of Seelmeyer and Santaliz more private. They may no longer want these events made public. Early publicity does not negate a statutory interest in privacy, it said.

The FBI gave the appeals court a list of excuses why it could not process the requests for the Minneapolis and Spokane search records until 2001: The requests would be in the agency’s “slow” queue because more than 100 pages were sought. There were special delays in the slow queue, too. The FBI was experiencing an increased workload, a shortage of personnel, and a big case, increasing its litigation effort and diverting agency resources. Also, the agency said, a new law giving priority to requests concerning the assassination of President John F. Kennedy was diverting its resources.

The government defended its denial letters as self-explanatory without affidavits. If affidavits agencies filed did mirror other affidavits from other cases, that is because the situations were similar, it said.

The government still did not acknowledge the request for the La Opinion search documents.

In early August, the appeals panel ruled that the FBI must process requests for records of the Minneapolis and Spokane searches. People who requested records in 1986 and revised and clarified the request in 1993 cannot be made to wait longer, it said. Congress gave agencies 20 days, not 20 years, it said, to respond to requests. The requesters are not entitled to jump the queue or receive expedited review, but they are entitled to have their response.

The FOI Act may pose practical difficulties for federal agencies, the court said, but it is still the law. “We cannot repeal it by a construction that vitiates any practical utility it may have,” it ruled.

Although the appeals panel held that affidavits are not always necessary, it did rule that FBI “boilerplate” affidavits were insufficient because they did not describe what was being withheld and the reasons for withholding.

Seelmeyer and Santaliz did not lose their privacy interest because of earlier publicity, the court ruled. It did not address the public’s interest in the disclosure of these papers.

The appeals panel did not address the request for records on the La Opinion search.

In early October, Fidducia and Kohn asked for a hearing before the full court. (Fidducia v. Department of Justice)