Records in drug-smuggling case kept secret on privacy grounds

TEXAS–The Department of Justice does not have to release records concerning a narcotics conspiracy that resulted in the conviction of the former sheriff of Presidio County and does not even have to confirm or deny that the records exist, a federal District Court in Pecos ruled in mid-August.

Rejecting the Freedom of Information Act appeal filed by Nimby News editor Jack McNamara, the court said that release of the records or even an admission that the records exist would intrude upon the privacy of the former county sheriff who was sentenced to life imprisonment after helping to bring illegal drugs over the Mexican border.

The court said that McNamara’s request fell outside the “core purpose” of the FOI Act which was meant to give citizens a “window on the workings of their government.” The FOI Act was not intended to serve as a “mechanism for obtaining private information on a private individual,” the judge ruled.

In December 1991, law enforcement officials arrested Sheriff Rick Dee Thompson and a co-conspirator after seizing a sheriff’s office horse trailer that contained 2,500 pounds of cocaine. Thompson, who had been under surveillance for several months by federal counter- narcotics agents, ultimately pled guilty.

Two years later McNamara filed FOI requests with several Department of Justice agencies asking for records on the operation and prosecution of the narcotics conspiracy directed by Thompson and his co-conspirator. McNamara said that he was especially interested in information which disclosed “agency procedures and the workings of government.” All of the agencies which responded at all withheld records under the privacy exemptions to the FOI Act.

The FBI and Interpol said that even the mere acknowledgment that records on Thompson existed would intrude upon his privacy, causing a harm the FOI Act privacy exemptions were intended to avoid. That response is called a “Glomar” response. It was first invoked when the government refused to confirm or deny its use of the Hughes Glomar Explorer to recover a sunken Soviet submarine.

McNamara argued on appeal to the agency and ultimately in court that although the Glomar response has been routinely used to protect national security information, it should not be used to protect against intrusion of personal privacy.

He also pointed out that in its findings delineated in the Electronic FOI Improvements Act of 1996, Congress specifically rejected the core purpose argument advanced by the government. Congress specifically said that the FOI Act was intended to be used for “any purpose.” The court did not address this argument. (McNamara v. Department of Justice; Media Counsel: Jack McNamara, pro se, Nimby)