From the Fall 2004 issue of The News Media & The Law, page 12.
By Eddie Florek
Thirty-two years after his mother was kidnapped and released when a $1 million ransom was paid, a Minnesota man has won court-ordered release of Federal Bureau of Investigation documents relating to the kidnapping for a book he is writing about the incident.
Harry C. Piper III hopes to obtain even more documents in the case and has asked the U.S. Court of Appeals in Washington, D.C., to re-evaluate his request in the wake of the March U.S. Supreme Court ruling in National Archives and Records Administration v. Favish. Although the requester lost in that case, the high court made clear that in some circumstances a public interest in disclosing information can trump the need to protect privacy interests.
The high court ruled in Favish that privacy interests of surviving family members of the late White House Deputy Counsel Vince Foster outweigh the public’s interest in disclosing pictures taken at the scene of his death. However, the court discussed both privacy and public interests and said the balance will not always favor privacy protection.
Piper’s attorney, Dan Alcorn of Vienna, Va., thinks that the public has a strong and apparent interest in knowing the details of the case, which he said is the largest unsolved ransom kidnapping case in U.S. history.
Piper, who was 19 when Virginia L. Piper was snatched from her yard in1972, sued the FBI in 1998 after it denied a Freedom of Information Act request for documents related to the investigation of the kidnapping. The kidnappers were never convicted and the ransom was never recovered.
Piper, a former Justice Department civil rights lawyer, also sought a hair sample found in the getaway car and resembling the hair of Ken Callahan, one of his mother’s alleged kidnappers. Piper wanted to have the hair sample analyzed, but the FBI destroyed it.
The district court partially sided with Piper and partially with the FBI in December 2003 and on reconsideration in March. Many of the documents Piper wanted no longer exist. The FOI Act requires the government to look for, but not necessarily produce, such information. Piper argued that the FBI should be forced to reconstruct destroyed documents, but the court ruled that the FOI Act did not require the FBI to reconstruct such documents.
The court ruled that the FBI was not required to reconstruct the documents because the agency acceptably searched for the files, followed procedures under the FOI Act and Privacy Act, and double-checked for the documents before determining that they no longer existed.
Piper contends that the document search was not sufficient and argues that FBI and Department of Justice employees deliberately destroyed the files in order to prevent him from accessing the information. The court denied Piper’s request to depose FBI and DOJ personnel in seeking proof that they destroyed the documents. Piper also said he believes that the FBI maintains additional abstracts of records in a file card index which could lead to second and third copies of the documents he seeks.
The court also ruled that the FBI must release photographs of an alleged government-doctored fingerprint, but can shield identities and photographs of witnesses, suspects and FBI special agents. And the court rejected the government’s argument that locating redactions in documents under deadline would burden the FBI.
The government claimed that many documents it kept from Piper were justifiably withheld because a sample of the disclosed documents showed why some of them should not be released. But Piper also argued that the Vaughn index, used by the government to explain what documents are withheld and why, also showed that certain documents must be released under the FOI Act.
Piper has received all but six of the 22 documents the court ordered released to him. However, almost every page has information blacked out, Alcorn said. The government claims that the information was redacted to protect the privacy of individuals involved in the case.
Two suspects in the kidnapping were brought to trial in 1979 but acquitted. “The government has withheld a lot of information on personal privacy grounds. . . . It doesn’t make sense that people who have had two [public] trials have a personal interest that outweighs the public interest,” Alcorn said in an interview.
Piper asked the district court to order the government to pay his attorney fees under provisions of the FOI Act. The court determined in August that he “substantially prevailed” in his lawsuit, making him eligible for attorney fees for the portion of the case in which he won — a total of $74,155 of the $84,973 he requested.
Piper is back in court for one more attempt to obtain more FBI documents related to his mother’s kidnapping. He thinks that more documents will be released if the court reexamines his case in light of the language in the Favish decision concerning the balance of privacy and public interests. (Piper v. Department of Justice)