One opinion spoils spirit of federal access law

Since ’89, agencies have relied on the Supreme Court decision in Reporters Committee to curtail press access with the approval of courts

From the Spring 2001 issue of The News Media & The Law, page 40.

By Catherine Cameron and Rebecca Daugherty

Twelve years ago, the media suffered a devastating loss when a unanimous U.S. Supreme Court decided that information in an FBI rap sheet, compiled from information otherwise publicly available, was protected from release under the federal Freedom of Information Act by an exemption in the act protecting against intrusions upon privacy.

The Reporters Committee case involved a request made by the late CBS reporter Robert Schakne who sought the criminal history rap sheet of a Pennsylvania defense contractor found by the Pennsylvania Crime Commission to have mob ties and who was aided by a congressman. The FBI refused Schakne’s request, and ultimately Schakne and the Reporters Committee for Freedom of the Press sued for the records. They lost in federal district court in Washington, D.C., but twice panels of the U.S. Court of Appeals in Washington, D.C., ruled that the records must be made available under the federal FOI Act.

In an appeal by the government, the Supreme Court turned those decisions around. Going further than the government had asked, Justice John Paul Stevens skewed the balance between privacy interests and public interests, introducing three new concepts to FOI Act decisions.

First, he added weight to the privacy side. Agencies must now consider whether the “practical obscurity” of dormant files is itself a privacy interest worth protecting from disclosure.

Second, he lightened the public interest side. The “core purpose” of the FOI Act was to show what government was “up to,” to open agency action “to the light of public scrutiny,” and no other public interest purpose could be considered in the balance. Occasionally, courts use this rule positively to emphasize that records must be disclosed when they show what the government is “up to,” but far more frequently agencies and the courts use the “core purpose” notion to limit what requesters can get.

Third, Stevens allowed agencies to close whole categories of records, such as criminal history rap sheets, presuming that privacy interests would always outweigh public interests in disclosure. On this point Stevens lost concurring justices Harry Blackmun and William Brennan, who said that the public should still have an overriding interest in the rap sheets of candidates for public office. (See NM&L, Spring 1989)

Ever since the 1989 decision, federal agencies have used Department of Justice v. Reporters Committee for Freedom of the Press to cripple press access to many records naming individuals, and with few exceptions the federal courts have endorsed their actions.

The decision has never been overturned by the court, but Congress tried to change its use to eliminate the “core purpose” limitations. Rejecting the Court -defined “core purpose” of FOI as describing government operations and activities, Congress in the Electronic Freedom of Information Act Amendments of 1996, found that the purpose of the FOI Act is to “establish . . . the right of any person to obtain access to [agency records] . . . for any public or private purpose.” Sen. Patrick Leahy (D-Vt.), a primary sponsor of the 1996 legislation, gave his view of this language and it was never contradicted in the body of the report.

In a Senate report, Leahy said, “Efforts by the courts to articulate a ‘core purpose’ for which information should be released imposes a limitation on the FOI Act which Congress did not intend and which cannot be found in its language and distorts the broader impact of the Act in effectuating government openness.”

However, the findings and the report have gone unheeded by the federal courts.

In fact, the federal judiciary, through the Judicial Conference of the United States, is exploring ways to use the rationale behind Reporters Committee to limit access to electronic court records to close off “sensitive” and “private” information in court records that are public so long as someone goes to a courthouse to get them. Unless courts have taken direct action to seal particular information, court records have always been open in this country, but the judiciary has suggested that easier access to the information makes it more violative of privacy interests. (See NM&L, Winter 2001)

In the states, reporters have often found it easier to access government information from states under state open records laws. However, even though the Reporters Committee case involved only the federal FOI Act, many states are using the opinion to determine access at the state level. And, unfortunately, when Reporters Committee is cited in an opinion, more often than not, the court is finding for closure of records, rather than openness.

A review of state case law citing to Reporters Committee showed that 43 decisions from 23 states have cited the case in opinions issued from December 1989 to May 2000. Of these, seven are citations for inconsequential points For example, some of the cases use Reporters Committee to point out a privacy exemption in FOI law. However, the other 36 cases have cited Reporters Committee in order to bolster major aspects of a decision.

Five states have used the case for its premise that just because information is public elsewhere, it is not necessarily open when it is used for some other purpose. In 14 states, courts have said open records laws are only for records that show “what the government is up to.” Two cases have used Reporters Committee for its premise that records can be closed categorically they are so clearly public or not private. Finally, in 14 cases courts have used the federal ruling to help define the terms “privacy” and “public interest” in other ways.

Practical Obscurity

Some of the most alarming language from Reporters Committee centers on the idea that the FBI “rap sheet” contained information of a private nature, even though it was compiled from public records. The Reporters Committee court wrote that an “individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because the information may be available to the public in some form.” Several state cases have used this language to discern a difference between paper records and compiled computer databases of information.

But none of the state courts has cited the most damaging language from Reporters Committee that the “privacy interest in maintaining the practical obscurity of rap-sheet information will always be high,” although the idea of “practical obscurity” has shown up in several opinions.

• Despite the Reporters Committee language, a New York court avoided the case by noting that offenses on the state-compiled “rap sheet” at issue all occurred in the same geographic area; therefore, the practical obscurity of court records around the country was not an issue. (Lawrence v. New York)

• The Supreme Judicial Court in Massachusetts shot down the state’s sexual offender registration law in part because it found a privacy interest in the offenders’ home addresses, even though these addresses are available in the phone book. The court said that an “individual’s interest in controlling the dissemination of information regarding personal matters . . . does not dissolve simply because that information may be available to the public in some form.” (Doe v. Attorney General)

• Similarly, the New Jersey Supreme Court found that although addresses are publicly available elsewhere, this does not change the privacy interests someone has in a home address when registered with the state as a sexual offender. However, the New Jersey court upheld the state’s sexual offender registration law because the state interest in protecting children outweighed the offender’s privacy interest. (Does v. Poritz)

• In an Illinois case, the court used a similar analysis to prevent disclosure of race from state employee personnel files. The Illinois court acknowledged that the race of state attorneys was largely apparent to “those who deal with them in their professional capacities,” but said that did not mean that the attorneys lose an interest in controlling the dissemination of this information from their personnel files. (CBS, Inc. v. Partee)

What government is up to

Probably the most heavily cited language from Reporters Committee is that open records laws apply only to records that demonstrate what the “government is up to.” Although some states have used this to close access to records about private individuals, the language has also been used positively, to force disclosure of records that are about what the “government is up to.”

Seven state court opinions have closed access to information that did not show what the government was “up to.”

• The Supreme Court of Arizona used this language to close access to a Salt River Pima-Maricopa Indian Community check distribution list, held by the state treasurer, because it was not “generated or used . . . in a capacity related to the duties of that office.” (Salt River Pima-Maricopa Indian Community v. Rogers).

• The Michigan Supreme Court denied access to information in gun permit applications because it “would not shed any light on the conduct of any Government agency or official.” (Mager v. Michigan)

• The Colorado Supreme court ruled that a bulk database of court records did not merit the access that paper court records did and closed access to the database. In order to support its contention that the release of bulk data “necessarily involves the balancing of individual privacy concern,” it cited to the Reporters Committee language that indicates that the purpose of FOIA is “not to disclose information about private citizens.” (Office of the State Court Administrator v. Background Information Services)

• The Supreme Court of Ohio refused to release Columbus’ database of information about children who use the public recreation facilities because it did not show what the government was “up to.” (The State ex. rel. McCleary v. Roberts)

• A Michigan court of appeals used this language to close access to the last known addresses of people with unclaimed property because it was “personal information” not living up to the Reporters Committee standard. (Kocher v. Department of Treasury)

• Because records of workers compensation claims filed with the Kentucky Department of Workers’ Claims are not records that show what the “government is doing” they were closed by a Kentucky court of appeals using language from the Reporters Committee decision. (Zink v. Department of Workers Claims)

• A California court of appeals found the Reporters Committee language persuasive for the contention that a state database of information about people with pending criminal charges was protected from disclosure because it was not “‘official information’ about a government agency.” (Westbrook v. County of Los Angeles)

On the other hand, some courts have used Reporters Committee to call for the release of records because the records do demonstrate what the government is “up to.”

• The New Hampshire Supreme Court found that the state Housing Finance Authority failed to show that several of the documents it withheld from The Union Leader in Manchester “would not inform the public about the authority’s activities . . . or that a valid privacy interest, on balance, outweighs the public interest in disclosure.” (Union Leader Corp. v. New Hampshire Hous. Fin. Auth.)

• The Supreme Court of Ohio found that the release of information about donors to a public university demonstrated what the government was “up to” because the “receipt and solicitation of gifts . . . is an indispensable function of any institution of higher learning.” (The State Ex. Rel. Toledo Blade Co. v. University of Toledo Found.)

• The Supreme Court of Vermont found that arrest records and citations were intended to be public records because Reporters Committee says “people are permitted to know what their government is up to.” (Caledonian-Record Publishing Co. v. Walton)

• A Washington, D.C., court of appeals sent a case back to a lower court asking for further evidence that release of records of the District’s affirmative action program for minority business would cause competitive injury. The appeals court noted that the record before it did not have evidence sufficient to overcome the Reporters Committee premise that it is important to have access to documents of what the government is up to. (The Washington Post Co. v. Minority Business Opportunity Comm’n)

• A Colorado court of appeals remanded a case for further evidence because the evidence did not support a redaction for “confidential financial information” in light of the fact that Reporters Committee said the “purpose of open records statutes is to assure that the workings of government are not unduly shielded from the public eye.” (International Brotherhood of Electrical Workers Local 68 v. Denver Metro. Major League Baseball Stadium Dist.)

One court recognized that under Reporters Committee, the records at issue would show what the government was “up to.” However, the court found that the records were closed under an exemption to the state law.

• Although a California court of appeals acknowledged that the core purpose of its open records act was the same as found in Reporters Committee — “to let citizens know ‘what their government is up to'” — it still found that records of an investigation into police misconduct were not public because personnel records are exempt from public disclosure. (City of Hemet v. Superior Court of Riverside County)

In two cases, a dissenting justice has used Reporters Committee to say that records should only be released if they show what the government is “up to.” One dissent uses Reporters Committee to support closure and the other to support disclosure.

• The Connecticut Supreme Court refused to release arrest records while criminal prosecution is pending because it feared infringing on “the rights of litigants under the laws of discovery because a defendant, as a member of the public, would have immediate access to documents otherwise unavailable under our discovery rules.” However, the dissent cited Reporters Committee and said that the records should be released because residents of Connecticut “have a right to know what our government is up to.” (Gifford v. Freedom of Info. Comm’n)

• In another case, the Supreme Court of Michigan decided that the release of an autopsy report and toxicology test did not rise to a “clearly unwarranted invasion of privacy,” and must be disclosed. A dissenting judge opined that under Reporters Committee these documents did not show what the government was up to and that only private information was involved. (Swickard v. Wayne County Medical Examiner)

Four states have used Reporters Committee to help define the public interest in disclosure of certain records. Most of these opinions cited Reporters Committee for the concept that the purpose of state open records laws is “to open agency action to the light of public scrutiny, rather than on the particular purpose for which the document is being requested.”

• The New Hampshire Supreme Court vacated a lower court decision to close access to police investigation records because the lower court only considered the Manchester Union Leader‘s specific interest in the records, instead of the interest in opening police activities to the public. (Union Leader Corp. v. City of Nashua)

• A Wisconsin court of appeals heard a case involving a union seeking employee records of subcontractors who built an elementary school. The union argued that it needed the records because it was charged with the duty of monitoring government employee relations. The court said that under the open records law, the public interest is not the union’s particular interest in monitoring the government, but the Reporters Committee definition of the public interest in scrutinizing agency action. (Building and Const. Trades Counsel v. Waunakee Community Sch. Dist.)

• In Illinois, a court of appeals acknowledged the same language from Reporters Committee, but distinguished the language of the state law. The state law, it said, required the court to make an individualized determination of the plaintiff’s interest in disclosure and weigh that against any privacy interest implicated in release of the records. (Blumenfeld v. Department of Professional Regulations)

• In a different take on the public interest in record access, an Arizona court of appeals cited Reporters Committee for the proposition that a reporter does not have a right under the First Amendment to inspect police investigation reports held by a state prosecutor. The court noted that the Supreme Court has found that reporters have a First Amendment right to attend criminal trials, however, the court said that Reporters Committee demonstrates that there is no First Amendment right of access to criminal records. (Cox Arizona Publications, Inc. v. Collins)

Categorical Closure

Another idea emanating from Reporters Committee is that agencies can categorically close records. Instead of balancing the individual privacy interests in closure and public interest in disclosure, the Reporters Committee case said that there are certain records in which the privacy interest is always strong and the public interest is always minimal and, therefore, the court can determine that those records are always closed.

• The Supreme Court of Nevada used this language to close access to investigation records created by the Reno Police Department after the charges were dropped against the subject of the records. The newspaper argued that because the state open records law did not explicitly exempt investigation reports, “at the very least a balancing test should be used to determine whether the report should be disseminated to the public.” However, the court cited Reporters Committee for the proposition that it can close access to all investigation records about a private citizen categorically because “when the request seeks no ‘official information’ about a Government agency, but merely records what a Government happens to be storing, the invasion of privacy is ‘unwarranted.'” (Donrey of Nevada v. Bradshaw)

• An Illinois appellate court used this language to find that access to all teacher personnel files was off limits to public inspection, without the need of a case-by-case balancing test. (Healey v. Teachers Retirement System of the State of Illinois)

Definition of Privacy

Courts in seven states have used Reporters Committee to help define the idea of “privacy” in state open records laws. Because the language of state open records laws is often similar to the federal FOI Act, many state courts have analogized the privacy provisions in the states’ open records laws to the federal law. But even states that have laws worded differently than the federal FOI Act have used Reporters Committee to define the term “privacy.”

• A Washington, D.C., case analogized the disclosure of parole board applications for reduction of minimum sentence to the “rap sheets” at issue in Reporters Committee. Because both represent similar privacy interests, the D.C. court closed access to the parole records. (Hines v. District of Columbia Bd. of Parole)

• An Arizona court used Reporters Committee to find that teachers have a privacy interest in their birth dates and these cannot be disclosed to a reporter. Although the court noted access friendly language from Reporters Committee that “in an organized society, there are few facts that are not at one time or another divulged to another,” it found that because the information was not “freely available to the public,” the teachers had protectible privacy interests. (Scottsdale Unified School Dist. v. KPNX Broadcasting Co.)

• When a Louisiana court was faced with the determination of whether to release state compiled “rap sheets,” it devoted a page of its three-page opinion to the Supreme Court’s analysis in Reporters Committee. Because the Supreme Court found that these records were private, the Louisiana court also found for privacy. (Ellerbe v. Andrews)

• The Delaware Superior Court in New Castle used Reporters Committee to bolster its argument that compiled “rap sheets” are closed under the state open records law. The Delaware court pointed out that the Reporters Committee case found that “rap sheets” rose to the level of an “unwarranted invasion of privacy,” suggesting that such a record would surely rise to the lesser privacy standard of state law requiring an “invasion of privacy.” (Gannett Co. v. Delaware Criminal Justice Info. Sys.)

• A Maryland court deciding a wrongful termination claim by an employee who did not disclose that he was a witness in a criminal investigation of a third party, refused to accept the employee’s application of the Reporters Committee case. The court acknowledged that had the employee been a government party, under Reporters Committee he may have had a duty not to disclose a third party’s involvement in a criminal investigation, but as a private party, his disclosure could not violate a third party’s privacy. (Shapiro v. Massengill)

• An opinion by the Texas attorney general points out that the privacy concerns the Reporters Committee court found in a “rap sheet” are not implicated by the release of a mug shot taken of an individual when arrested for a crime of which they were subsequently convicted. (Office of the Attorney General of the State of Texas, Open Records Decision No. 616)

• A Connecticut court determined that the names, addresses and job classification of employees of a tribal gaming casino should not have been released by the state Department of Revenue Services under the state’s open records law because the employees had a privacy interest in this information, like the privacy interest in the rap sheet in Reporters Committee. (Mashantucket Pequot Tribe v. Connecticut Dept. of Revenue Servs.)

For all of the faults of the Reporters Committee decision, the opinion does make clear in footnote 13 that the privacy interest the court is protecting is statutorily based, that the court had no intention of altering any definition to a constitutional right of privacy. The court noted that the “question of the statutory meaning of privacy under the FOIA is, of course, not the same as the question . . . whether an individual’s interest in privacy is protected by the Constitution.” To illustrate this point, the court cited to a previous case in which it found that the publication of the name of an “arrested but untried shoplifter” was not a violation of the shoplifter’s constitutional right of privacy. Four state cases have picked up the language from footnote 13 in their opinions and three have found that the records are open.

• An Ohio court found that the City of Cleveland could not substantiate a privacy exemption from the state’s open records law for city criminal history records. It used Reporters Committee for the premise that the city could not substantiate a constitutional right of privacy in these records either. (State of Ohio ex. rel. Broom v. City of Cleveland) A year later, the same court shot down a claim by the City of Cleveland that a constitutional right of privacy protected arrest records, social security numbers and addresses in records held by the city because Reporters Committee did not find a constitutional right of privacy. (State ex. rel. Lippitt v. Kovacic)

• The Supreme Judicial Court in Massachusetts found a similar lack of a constitutional right of privacy for information disseminated by the government under the state’s sexual offender notification statute. It used Reporters Committee to point out that the only right of privacy it found that the government can violate is statutorily derived. (Opinion of the Justices to the Senate).

• In a sexual offender registration case, a defendant challenged the constitutionality of the Alaska statute requiring him to register with the state as a sexual offender. He relied on Reporters Committee to support a constitutional right of privacy for criminal convictions. The court quickly dismissed this claim by citing footnote 13. (Patterson v. State of Alaska)

Although Reporters Committee has been used by states to create some law unfavorable to press access, it seems that some state courts have been able to pull language from the case favorable to access in order to open records. Many courts have also chosen to ignore the case. This is especially evident in cases where the dissent argues for closure by using the Reporters Committee, while the majority ignores the case altogether and opens the records to public access. Because of this ad hoc application of the case, it is difficult to tell whether a court would have closed the records anyway. But one thing is for certain — Reporters Committee may have been a terrible case for federal FOI litigation, but it has sometimes presented beneficial arguments for access in state FOI cases.