Confidential recordings become public once played in open court

Confidential recordings become public once played in open court

• Otherwise confidential tape recordings lose their exemption for Freedom of Information Act purposes once they are played in open court, and after that must be disclosed

Wiretapped tape recordings played in open court during a public criminal trial must be released in response to a Freedom of Information request, even if they are confidential under the Omnibus Crime Control and Safe Streets Act, a three-judge panel of the U.S. Court of Appeals for the District of Columbia (D.C. Cir.) ruled in late October, unanimously reversing a lower court’s decision.

Judge Patricia Wald wrote for the court that even though an exemption to the FOI Act (Exemption 3) protects records from disclosure that are confidential under other laws, they lose their protective cloak once they are disclosed and preserved in a permanent public record.

Salvatore Cottone was convicted on drug and racketeering charges after an FBI investigation into Colombian and Sicilian drug trafficking in the District of Columbia and Northern Virginia. He has been trying to get copies of the government’s surreptitiously recorded tapes that helped bring about his conviction since 1991, when the U.S. Court of Appeals in Richmond (4th Cir.) rejected his appeal.

Undercover agents who wore hidden recorders during face-to-face meetings with Cottone had played tapes for the jury in open court, but when Cottone requested copies, the government said that the Omnibus Crime Control Act requires that intercepted material be kept confidential. It released two of the audio tapes that were not covered by the crime control law, but with heavy excisions, claiming that the records were law enforcement records that, if released, would harm privacy interests of other individuals (Exemption 7c) .

Cottone sued in a federal District Court in Washington, D.C., which ruled in October 1998 that Exemption 3 protected the tapes from disclosure. That court did not address the withholding of the tapes for privacy reasons.

Cottone appealed, saying the tapes were not confidential if they were played in open court. He also said that most persons referred to in the redacted tapes either had waived their privacy interests or were dead, leaving little privacy interest to be protected.

The appeals panel reversed, ordering the intercepted tapes released. It also ordered the District Court to address Cottone’s claims that no privacy interests in the records exists.

(Cottone v. Reno; Counsel for FOI Requester: Edwin Huddleson III, Washington, D.C.)

© 1999 The Reporters Committee for Freedom of the Press

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