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Access to 50-year-old records denied to protect 'privacy'

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information    

Access to 50-year-old records denied to protect ‘privacy’

  • A federal appeals panel refused to order government follow-up to determine if disclosure of old FBI records would intrude upon the privacy of people named in the records.

Nov. 19, 2003 — Releasing 50-year-old law enforcement records would intrude upon the privacy of those named in them, and they can be withheld under an exemption to the federal Freedom of Information Act, a U.S. appeals panel in Washington, D.C., ruled Monday.

The three-judge panel refused the request of Professor Ellen Schrecker, an expert on McCarthyism, that it order the FBI to take greater steps in determining whether people mentioned in records were alive, noting that death diminishes the need to protect privacy.

The panel rejected a friend-of-the-court brief filed by Public Citizen on behalf of several groups, including The Reporters Committee for Freedom of the Press. The public interest brief provided statistical analyses that showed the small likelihood that persons mentioned in the records would still be alive. It also argued that the government could take a few simple steps to help determine if people mentioned in the records were alive. The panel called the government’s efforts “adequate.”

Schrecker, who teaches at Yeshiva University in New York City, has written extensively about political repression in the U.S. during the era of Sen. Joseph McCarthy’s hearings. Since 1995 she has sought records on two men who were under FBI surveillance because of their alleged Communist connections. Her litigation has resulted in four published court decisions, and has led to the disclosure of 24,000 pages of records the government initially did not locate.

Her most recent suit challenged the FBI’s routine reliance on a “100-year rule.” The rule allows the agency to presume individuals are dead only if the sought-after records contain a birth date that is 100 or more years old, or a social security number that could be searched to determine if death had occurred.

The FBI has claimed, and courts have agreed, that the association of a name with a law enforcement record is so inherently stigmatizing that if the government discloses the association it has intruded upon the personal privacy of the named individual. Where a privacy interest is found, information will be disclosed only if a weightier public interest can be served by the disclosure.

Courts have regularly found that death diminishes the privacy interest protected by FOI Act privacy exemptions.

Schrecker sought records concerning Gerhard Eisler, a German Communist living in the United States during the Cold War, and Clifton Jencks, a union official indicted for filing a false affidavit under the Taft-Hartley Act, which required union leaders to affirm they were not supporters of Communism.

A lawsuit by Jencks resulted in a landmark ruling by the U.S. Supreme Court in 1957. Jencks v. U.S. requires prosecutors to disclose any evidence to defense attorneys if it would help clear their clients.

(Schrecker v. Dep’t of Justice; Attorney: Jim Lesar) RD

© 2003 The Reporters Committee for Freedom of the Press

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