Finding on FOI Act purpose not sufficient to change standard

CALIFORNIA–Another federal judge ruled in mid-June that Congress’ efforts in 1996 to reassure FOI requesters that the federal Freedom of Information Act was meant to be used for “any purpose,” were not sufficient to overcome a 1989 U.S. Supreme Court determination that when Congress enacted the FOI Act, it had intended that it only be used to show what the federal government “is up to.”

The federal District Court judge in Los Angeles said that language in the 1996 Electronic FOI Act stating that the FOI Act was to be used “for any public or private purpose” and the Senate Report accompanying the newer law stating that the new act was intended to refute the 1989 Supreme Court decision in Department of Justice v. Reporters Committee was insufficient to overcome the high court’s decision in that case — that the only purpose of the FOI Act was to shed light on the activities of the government. The House report did not address the Reporters Committee decision but instead criticized a Ninth Circuit decision which similarly limited the purpose for which the FOI Act could be used.

A federal Court of Appeals in Atlanta (11th Cir.) made a similar finding earlier this year in O’Kane v. U.S. Customs Service.

The effect of the new decision was to allow the agency to successfully invoke the law enforcement privacy exemption to the FOI Act.

The court refused to order the U.S. Customs Service to release records concerning two Hermosa Beach, Calif., police officers who were detained and ultimately fined $500 for illegally attempting to import steroids from Mexico. The agency invoked the privacy exemption saying no public interest in disclosure outweighed the officers’ privacy interests. The information would not tell anything about the federal government, it said, but would only concern the conduct of the two officers who broke federal laws in trying to import the drugs.

It upheld Customs’ denial of the request of a Hermosa Beach resident, James Lissner, who sought details of the arrest of police officers assigned to his neighborhood that he had read about in his local newspaper.

A Hermosa Beach newspaper, Easy Reader, reported in June 1998 that officers Lance McColgan and William Charles had been fined $500 each by Customs for failing to declare that they had brought in Sostenon, a steroid available over the counter in Mexico. California law makes possession of steroids a misdemeanor unless obtained by prescription and the newspaper reported that the Hermosa Beach police were conducting an internal affairs investigation of the incident.

In denying Lissner’s request, the FOI appeals officer at Customs noted that “Customs understands your concern over the activities of persons appointed to serve as armed peace officers in your neighborhood,” but said the privacy of those officers was the kind of interest the privacy exemptions were intended to protect.

Customs regulations require disclosure of the identity of a violator, the section of the law violated and the amount of penalty paid and the agency determined that all other information in the records was private.

(Lissner v. U.S. Customs; Attorney: James Chadwick, Palo Alto)