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Court says privacy exemption does not protect former INS official

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  1. Freedom of Information

    NMU         SECOND CIRCUIT         Freedom of Information         Nov 26, 2002    

Court says privacy exemption does not protect former INS official

  • Information about a former Immigration and Naturalization Service official involved in a program allegedly associated with wrongdoing must be disclosed under the Freedom of Information Act, a federal appeals court ruled.

The public has a strong interest in information contained in an inspector general’s report about a former high-level Immigration and Naturalization Service official and that interest outweigh’s any privacy interest of that official, the U.S. Court of Appeals in New York City (2nd Cir.) ruled Nov. 25.

The court ordered the information to be disclosed to New York immigration attorney Steven Perlman, who in 1999 filed a Freedom of Information Act request for the INS report.

Reversing an August 2001 lower court decision, the three-judge panel ordered release of information on Paul Virtue, former INS general counsel, contained in a 143-page report by the Department of Justice’s inspector general detailing improprieties in a program offering special visas to wealthy foreigners investors.

Virtue worked with the INS for 16 years, was involved in the program and had testified about it before Congress on behalf of the agency.

The court said that in finding a strong public interest in disclosure it considered Virtue’s rank, the degree of wrongdoing alleged, the inability of the public to find the information anywhere else, whether the information shed light on a government activity and whether the information about Virtue related to his job function or was of a personal nature. The public interest outweighed privacy concerns in its consideration of each of those factors, the court said.

However, the panel allowed the government to continue to withhold information in the report naming or identifying alien investors and witnesses. For those people, the stigma of being associated with an investigation constitutes a privacy interest superior to any public interest in knowing who they are, the court said.

The report examined the INS handling of the Alien Entrepreneur Program, which Congress designed to give permanent U.S. residency to foreigners who would invest $500,000 in a venture that would employ at least 10 people. Perlman said he believed that the program benefits were available to preferred consultants and not to his clients.

The INS denied Perlman the entire report in January 2000, citing the privacy exemptions to the FOI Act. Perlman appealed to the Department of Justice in February 2000 and sued for the report in August 2000 in federal district court in New York City when it did not respond. At that point the Justice Department turned over about 20 percent of the report, including some of the inspector general’s conclusions, but it but refused to divulge any names or information identifiable to individuals.

In the meantime, Perlman said, someone leaked portions of the document to The (Baltimore) Sun, which reported that government insiders had given preferential treatment to a firm that expedited investor visas. On the board of that firm were former immigration and other government officials. The Sun reported that they pocketed high fees from alien investors who could not meet the requirements and would ultimately face monetary loss and deportation.

(Perlman v. Reno; Attorney for Perlman: Mark Zaid, Lobel, Novins & Lamont,) RD

© 2002 The Reporters Committee for Freedom of the Press

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