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Federal records on local police drug case not ‘private’

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  1. Freedom of Information

    NMU         NINTH CIRCUIT         Freedom of Information         Mar 15, 2001    

Federal records on local police drug case not ‘private’

  • The public’s interest in the case of two policemen arrested and fined for smuggling steroids outweighs their privacy interest and justifies disclosure of the records in the case.

The public’s interest in the arrest and fining of two policemen for smuggling steroids outweighs their privacy interest, a federal appeals court ruled on March 12.

The U.S. Court of Appeals in San Francisco (9th Cir.) balanced the public and private interests in federal records concerning the handling of the case of two Hermosa Beach, Calif., policemen by the U.S. Customs Service.

In response to a Freedom of Information Act request from Hermosa Beach resident James Lissner for information about the arrests and fines, the Customs Service revealed the names of officers Lance McColgan and William Charles and the fact that they were fined $500 for smuggling steroids into the country. But the agency declined to release other redacted information because to do so would intrude upon the privacy of the officers.

Lissner sued in federal district court in Los Angeles, hoping to learn why the federal agency had reduced the fine from $5,000 to $500 and other facts surrounding the investigation. His lawsuit triggered the release of some but not all of the denied information, but the lower court ruled in favor of the government.

Reversing that decision, the appeals panel found there was legitimate public interest in how the investigation was handled. The court said nothing in documents was particularly personal and that the general physical description of the two men would not subject them to danger, harassment or embarrassment.

The Customs Service had argued that because Lissner had not shown any government misconduct in the investigation, the public’s interest was slight, but the appeals panel rejected that argument. The public interest may be greater where there is evidence of wrongdoing but a requester is not required to show knowledge of agency misfeasance under the FOI Act, the court said.

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief in the case, arguing that the public interest in release of the records outweighed any privacy interests the police officers may have in the information. Its brief also pointed out that under the 1996 amendments to the FOI Act, a request can be made “for any public or private purpose.” The Reporters Committee argued that this language and the legislative history of the amendments nullified a 1989 U.S. Supreme Court decision and a decision by the U.S. Court of Appeals in Atlanta (11th Cir.) that limited the FOI Act to those documents that shed light on what the government “is up to.”

The Ninth Circuit did not address the reach of the 1996 amendments, but ordered the release based on the weighing of the public and privacy interests.

(Lissner v. U.S. Customs Service; Requestor’s Counsel: James Chadwick, Gray Cary Ware & Freidenrich, San Diego) CC

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© 2001 The Reporters Committee for Freedom of the Press

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