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Court rejects expedited review request, citing lack of media interest

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  1. Freedom of Information

    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Court rejects expedited review request, citing lack of media interest

  • A federal judge refused to give a Freedom of Information Act request priority because the requester did not show there was a compelling public interest in disclosing the records.

Dec. 15, 2004 — A federal agency does not have to provide expedited review of a Freedom of Information Act request for records showing how it mines personal data to detect terrorist activity, even though the program could affect civil liberties and privacy, a federal district judge in Washington, D.C., ruled Dec. 8. The ruling reiterated language from an earlier decision that expedited review must be granted “sparingly.”

The Electronic Freedom of Information Act of 1996 requires federal agencies to set aside their “first come, first-served” processing of Freedom of Information Act requests and fill requests of reporters or others primarily engaged in disseminating information where there is a “compelling need” for the public to have the information.

The Electronic Privacy Information Center in Washington, D.C., filed an FOI Act request for the data mining records with the Defense Intelligence Agency in May. It asked for expedited review saying the use of data mining technology to detect terrorist activity “implicates serious privacy and security issues that have received considerable news media attention.”

EPIC augmented its case for the records by noting that a Defense Department advisory committee had just released a report concluding that rapid action is necessary to address the many government programs that involve data mining.

EPIC’s record as an information disseminator made it eligible for expedited review if it could demonstrate a compelling need for the public to have the information, but the court found that it had not done so.

The court considered the urgency to inform the public and, quoting from agency regulations, said the requester must show “that the information has a particular value that will be lost if not disseminated quickly.” That, the court said, ordinarily “means a breaking news story of general public interest.”

Regarding the “public interest” as an interest the media have exhibited in an issue rather than as an interest inherent to public well-being, U.S. District Judge Colleen Kollar-Kotelly noted that The New York Times , Reuters and the parent companies of the Wall Street Journal and CBS News were familiar with the data mining software and knew something about the agency’s use of it, but had published nothing about it.

“Widespread media attention” has been adopted by the Department of Justice in its regulations as one criterion for granting expedited review, but other agencies have not adopted it.

(Electronic Privacy Information Center v. Department of Defense; Attorney: David Sobel, Washington, D.C.) RD

© 2004 The Reporters Committee for Freedom of the Press

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