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Court finds DEA's release of letter violated Privacy Act

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    NMU         SECOND CIRCUIT         Freedom of Information         Apr 7, 2000    

Court finds DEA’s release of letter violated Privacy Act

  • A letter that identified an agency informant contained ‘information about an individual’ is a record under the Privacy Act, a federal appellate court said.

The Drug Enforcement Agency should have considered a letter identifying an agency informant as a record and considered whether the Privacy Act protected it, the U.S. Court of Appeals in New York (2d Cir.) ruled in early April. The letter, which the informant wrote on his personal stationery and sent to the DEA, was a “record” that contained “information about an individual” under the Privacy Act, the court said. The court remanded the case to the trial court to determine if the agency had violated the act.

The letter in question, written by a member of a neighborhood association, identified local individuals including a member of the sheriff’s office suspected of drug trafficking. The informant sent to letter to the DEA in July 1993 and requested that it be kept confidential.

The DEA decided not to pursue the allegations. The letter was later released to a member of the sheriff’s office. The local district attorney then brought criminal charges against the letter’s author for making false statements, among other things. The author was also sued in civil court for defamation.

The letter’s author then filed suit in federal District Court in Buffalo, N.Y., alleging the DEA had violated the Privacy Act and the First Amendment by releasing the letter and retaliating against him for exercising his rights to free speech and to petition the government. The District Court dismissed the author’s claims in August 1996, and he appealed the dismissal of the Privacy Act complaint.

In a departure from how most other appeals courts have handled the question, the Second Circuit ruled that the letter was a confidential record merely because its letterhead contained the informant’s name, home address and telephone number.

Such a broad definition of “record” was required, the Second Circuit said in an April 3 opinion, because of a 1994 Supreme Court decision ruling that home addresses of government employees were confidential personnel records under the Freedom of Information Act.

A record must contain more personalized information to receive protection under the Privacy Act, the Ninth, Eleventh and District of Columbia Circuits have ruled. Only the Third Circuit has adopted a definition for record similar to what the Second Circuit decided.

The letter’s author was found not guilty of one of the criminal charges, while the other charges and the defamation claims were dismissed.

(Bechhoefer v. U.S. Dept. of Justice)


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