Journalist wins case for names of pardon applicants

• The federal government may not withhold the names of unsuccessful applicants for federal pardons in order to protect their privacy, a federal district court ruled.

April 13, 2005 — The Department of Justice must disclose the names of pardon applicants whose requests for presidential pardons were denied, U.S. District Judge John Bates has ruled, rejecting the government’s argument that releasing the names would violate the applicants’ privacy rights.

The agency must also disclose the names of private citizens who wrote letters supporting a pardon applicant or who were listed as character references on pardon applications, the judge said. Bates, calling the Freedom of Information Act lawsuit a compelling case for disclosure, said his ruling would bring executive pardons under the “sharp eye of public scrutiny.”

The government had argued that supporters of a particular pardon applicant might be reluctant to have their thoughts made public and that releasing the applicants’ names would reveal little about the agency’s conduct.

Washington Post reporter George Lardner, who is writing a book about presidential pardon power, filed an FOI Act request with the Justice Department’s Office of the Pardon Attorney for certain clemency records from a 29-year period.

The agency provided many of the records but invoked the FOI Act’s privacy exemptions — Exemption 6 and 7c — in withholding names of applicants who were rejected and of people who vouched for them.

It also withheld most advisory documents less than 30 years old, including communication from the attorney general to the president as to whether clemency should be granted. The agency cited the Act’s Exemption 5, which protects privileged records, in this case the presidential privilege or decisional process privilege.

Lardner sued for the information. Bates withheld pardon applications in which no decision has been made, agreeing with the government and a federal appeals court decision in another case that the applications themselves contained highly personal information protected from disclosure. Bates also allowed most of the communication between the attorney general and president to be withheld as privileged.

But Bates ruled March 31 that Lardner could have the identities of the pardon applicants and the people who supported them for pardon or commutation of sentence. He reasoned that the applicants petition the government to perform a public act; the conviction they seek to be annulled was public; and if they are successful, their pardons will be public.

Release of the applicants’ identities would shed light on the pardon powers in important ways, Bates wrote, saying a comparison of successful and unsuccessful applications may well be essential to understanding how the decisions are made.

It is the “paradigmatic case for disclosure, in that the information would serve directly to open the Government’s activities ‘to the sharp eye of public scrutiny,'” he wrote, referring to language in the 1989 landmark U.S. Supreme Court case on the privacy exemptions Department of Justice v. Reporters Committee for Freedom of the Press. In that case, the high court ruled that if records are not informative about the operations and activities of government, there is no public interest in their release.

Bates also ruled that identities of supporters would also not be private because they performed “a public action” by writing letters to the government expressing their views on an issue of governance.

(Lardner v. Dept. of Justice; Media counsel: Michael Tankersley, Washington, D.C.) — RD

© 2005 The Reporters Committee for Freedom of the Press

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