City must disclose details about drug-smuggling cops

From the Spring 2001 issue of The News Media & The Law, page 39.

Claiming that the federal Freedom of Information Act only exists to let the public know what the federal government is up to, the U.S. Customs Service tried to withhold all but the most basic information in its files about fining two Hermosa Beach, Calif., police officers only $500 when they smuggled steroids over the border from Mexico.

But the U.S. Court of Appeals (9th Cir.) in San Francisco disagreed. The public’s interest in the fining of the two policemen outweighs any privacy interests they might have in the records. On March 12, it reversed the lower court holding that open government advocate James Lissner is entitled to the information he requested.

Lissner, a Hermosa Beach resident, wanted to know why errant policemen in his town received what looked to him to be a break from the Customs Service — only a “slap on the wrist.”

The appeals panel agreed with Lissner and with a friend-of-the-court brief, filed by the Reporters Committee for Freedom of the Press, that the privacy arm of the FOI Act’s law enforcement exemption does not apply to these records because the public’s interest in disclosure greatly outweighs any privacy interests of the two officers in the requested information.

However the panel did not address arguments by Lissner and the Reporters Committee that 1996 FOI legislation overrode a precedential 1989 Supreme Court decision setting parameters for invoking the FOI Act’s privacy exemptions. A federal court of appeals in Atlanta had rejected a similar argument in a 1999 case (O’Kane v. U.S. Customs Service).

In its findings to the Electronic Freedom of Information Act, Congress said the FOI Act was to be used for “any public or private purpose,” a finding that Sen. Patrick Leahy (D-Vt.) said was intended to set right the high court’s pronouncement that the FOI Act was only intended to shed light on government operations and activities. (Department of Justice v. Reporters Committee)

Lissner in June 1998 read in Easy Reader, a weekly South Bay newspaper, that officers Lance McColgan and William Charles were fined by the U.S. Customs Service for bringing in Sostenon, a steroid available over the counter in Mexico, but only by prescription in the U.S.

Reporter David Hunt wrote that Customs had considered the officers’ actions “administrative violations,” which did not merit criminal charges.

The local department suspended the officers, cut their pay and ordered them to undergo three years of drug testing. The then police chief called McColgan and Charles “young officers that made a stupid decision with dire consequences,” it reported.

Lissner filed an FOI request for the federal records with the Customs office in Otay Mesa, Calif., on the Mexican border. It denied his request for all but basic information required to be released by agency regulations — identities, charges and penalties assessed. He appealed to the Washington Office, which affirmed the denials.

Customs officials told Lissner that disclosure of any additional information would intrude upon the officers’ privacy.

The agency said it relied upon the 1989 U.S. Supreme Court’s ruling in Department of Justice v. Reporters Committee to invoke the privacy arm of the FOI Act’s law enforcement exemption.

In that case the high court required agencies to balance the public’s interest in disclosure of information about what the government is “up to” against the intrusion disclosure would cause to personal privacy.

Soon after that decision, the federal government narrowed the public interest side of the balance even further saying only federal government activities could be considered.

Lissner sued for Customs’ records in federal district court in Los Angeles. The lower court ruled that congressional efforts to change the high court’s decision were not sufficient and the records officers would only tell about the officers’ conduct, not how the federal government had performed its responsibilities.

A unanimous appeals panel reviewed the withheld documents and disagreed. They found no intimate or private details and noted that the officers are public law enforcement officers, not ordinary citizens.

Lissner is a retiree who has taken a strong interest in local government. He videotapes school board meetings for the local cable access channel and has filed numerous FOI requests. He won the 2001 California First Amendment Coalition’s First Amendment award for his successful efforts in reducing copying fees for police reports. –RD