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Census Bureau must release the count it rejected

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  1. Freedom of Information

    NMU         NINTH CIRCUIT         Freedom of Information         Oct 9, 2002    

Census Bureau must release the count it rejected

  • The adjustments Census Bureau statisticians arrived at to account for undercounted households in the 2000 Census are not privileged under the federal Freedom of Information Act and must be released, a federal appellate court ruled Oct. 8.

The U.S. Census Bureau must release the adjusted census numbers it tallied but did not use for the 2000 Census, the U.S. Court of Appeals in Portland, Ore., (9th Cir.) ruled Oct. 8, rejecting the federal government’s argument that the adjusted counts were exempt from the Freedom of Information Act.

After it conducted its initial 2000 census count — primarily through mail-in surveys and personal visits — the Census Bureau used statistical sampling to get a more accurate count where census takers were unable to make actual contact.

However the Commerce Department, the parent agency for the Census Bureau, decided not to use those adjusted figures. It released them in the aggregate, for the national count, but it refused to release any other adjusted figures for smaller geographical or political subdivisions.

Two Oregon state legislators, Democrats Margaret Carter and Susan Castillo, filed an FOI Act request for the adjusted figures, saying that because the Census figures are used to allocate funds to the states and evaluate state legislative districts, there is a strong interest in knowing what the second count revealed.

The Census Bureau and the Department of Commerce rejected their requests. They sued in federal district court in Portland, which ruled in 2001 that the government must release the figures. The government appealed to the Ninth Circuit, which affirmed the district court’s decision.

U.S. congressmen in the House Government Reform Committee filed a similar case in a federal district court in California. The court ruled in March in Waxman v. Evans that they could have the adjusted census figures.

The federal government lost a similar case 10 years ago at the appeals court after refusing to release the adjusted census numbers it calculated for the 1990 census. In the earlier case, Assembly of California v. U.S. Department of Commerce, the Census Bureau decided its methodology for arriving at the new figures was flawed.

The government argued that this time the deliberative process exemption should apply because the bureau, using improved methodology, had actually considered the adjusted figures before rejecting them.

Quoting from its earlier decision, the appeals court found that the numbers themselves were not part of the deliberations. The views of officials as to whether they should be used or rejected comprised the deliberations subject to the exemption, the court said.

(Carter v. Dept. of Commerce; attorney: Thomas Susman, Washington, D.C.) RD

© 2002 The Reporters Committee for Freedom of the Press

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