Out of sight, out of bounds

From the Spring 2009 issue of The News Media & The Law, page 11.

Twenty years ago, the U.S. Supreme Court handed down the seminal decision interpreting the federal Freedom of Information Act’s privacy exemptions. Many journalists would agree it is not an anniversary worth celebrating.

Since the case, brought by the Reporters Committee for Freedom of the Press, was decided in March 1989, the Court’s reasoning has trickled down to state courts in unforeseen and unwelcome ways.

The notorious “Reporters Committee” decision is now uniformly used to restrict access to what in other settings is thought of as public information — all in the guise of government protecting individual privacy interests.

It also has been used as precedent in state courts and in judicial debates over whether to put state court records online.

The case began with a 1978 FOIA request by the Reporters Committee and CBS reporter Robert Schakne to the FBI for the rap sheets of four brothers accused by a Pennsylvania law enforcement agency of having ties to organized crime.

William, Phillip, Samuel and Charles Medico then jointly ran an operation known as Medico Industries. They had drawn the interest of Schakne and the Pennsylvania Crime Commission for running what the Supreme Court would later call “a legitimate business dominated by organized crime figures.”

The Pennsylvania authorities thought the company had ties to a “corrupt Congressman” through whom it had won defense contracts, according to a court opinion.

Separately, as the Medico brothers were falling under police suspicion, the FBI had started to maintain compilations of criminal records on individuals in computerized form. The new medium offered easy access to public arrest and conviction information that otherwise would have required visits to multiple county courthouses and sheriff’s offices.

Schakne and the Reporters Committee sought access to the Medico brothers’ sheets.

At first only William’s was provided because he had died — presumably his privacy interests were no longer at issue. The rest were withheld under a FOIA exemption protecting personal privacy. In 1979, the requesters filed a FOIA lawsuit in federal court in Washington over the others. The suit would end up 10 years later in the Supreme Court as Department of Justice v. The Reporters Committee for Freedom of the Press.

As the litigation plodded along toward that end, Phillip and Samuel Medico also died. The FBI released their files. But the bureau steadfastly refused access to the rap sheet of the last living brother, Charles.

Supreme Court weighs in

The Supreme Court ultimately upheld the FBI’s decision, saying the rap sheets weren’t subject to disclosure under FOIA: Even though the information was available elsewhere, the court held, it was still “practically obscure.”

Practical obscurity, in the Court’s reasoning, refers to the idea that even though some information may be public, such as police blotters or arrest records, the information is obscure because it is not easily accessible.

Beyond that, the court said, the rap sheets didn’t provide insight into what the government was up to — which, it said, was the “core purpose” of FOIA.

Justice John Paul Stevens wrote the unanimous opinion for the court. Stevens looked to the history of the Privacy Act, which provided a close approximation of Congress’s position on individual privacy and governmental data collection, in forming the basis of his analysis.

“Although the Privacy Act contains a variety of exceptions … Congress’ basic policy concern regarding the implications of computerized data banks for personal privacy is certainly relevant in our consideration of the privacy interest affected by dissemination of rap sheets from the FBI computer,” Stevens wrote.

The crux of the issue was how best to balance the interests in public disclosure of the information against any privacy interest Medico had. It was the first time the Supreme Court weighed in on this tension.

John Daly, who worked on the case on behalf of the government while an attorney at the Justice Department, said from the start all the judges in the lower court and at the Supreme Court were worried about a balancing of interests that had no clear standards. Was it the public’s interest in disclosure that should be considered, and how should the value of receiving the documents be measured against a person’s interest in keeping the data private?

The idea that the public interest in disclosure had to be considered in terms of the core purpose of FOIA — to find out what the government is up to — came from the need to establish standards for balancing, Daly said.

“There’s not much here in terms of a public interest, and there is a privacy interest,” Daly said at a recent conference at American University regarding the anniversary of the Reporters Committee case.

Daly’s view ultimately won the Supreme Court over when the opinion came down. “One is always surprised, as a litigator, to get everything you asked for, but that’s pretty much what we got” in the first section of the opinion alone, Daly said. From there, it only got better for the government’s side — the opinion went so far as to categorically exempt rap sheets from disclosure under FOIA.

For their part, open-government advocates would back up to the premise of the court’s balancing and argue that arrest and conviction do in fact illuminate what “government is up to.”

Arrests that don’t lead to prosecution illuminate how the government decides whether to take or drop cases. Arrests without convictions may shed light on the demographics of people who wind up behind bars.

It’s only in the context of private information that this matters. For FOIA requests that don’t implicate third parties with privacy rights, the requester doesn’t have to show the information will shed light on “what government is up to.”

But today, the balancing test that the Supreme Court laid out has affected access to those so-called private records in unforeseen ways.

Fallout from the decision

Tonda Rush, now the president of American PressWorks, worked at the Reporters Committee in the 1980s when litigation over the Medico records was just getting started. She said the Supreme Court’s decision in the Reporters Committee case burdens people seeking documents with an unusual responsibility for FOIA requests: they must prove something in order to succeed.

To obtain public records that involve a privacy interest — generally anything that names a living person other than the requester — a requester has to show the documents will somehow reveal some aspect of what government is up to. But it’s difficult to have enough evidence to do that without actually having the documents one is seeking, as the Associated Press learned when seeking access to John Walker Lindh’s clemency petition last year. The AP’s request was denied, and it later lost a FOIA suit for access to the petition because the government said it was protecting Lindh’s privacy interests.

The practical obscurity prong of the Reporters Committee decision has also had far-reaching effects. The court said Charles Medico had a privacy interest in maintaining the practical obscurity of the compilation of information on his rap sheet — even though the information about the individual incidents on the rap sheet was public at the county level.

In the decisions interpreting and applying the Reporters Committee standard, there is an underlying theme that if a FOIA request is necessary to access previously public information, that information must now be considered practically obscure and, as such, cannot be released.

For example, in Isley v. Executive Office for the U.S. Attorneys, the requester sought access to information he had once, several years earlier, obtained through a FOIA request. The U.S. Court of Appeals in Washington, D.C. denied his request on the grounds the information had become practically obscure.

“As the public domain doctrine stands today, a party can only gain access to information withheld by the government under a FOIA exemption if it can ‘point to “specific” information identical to that being withheld’ that is publicly available,” the D.C. Circuit said.

It then concluded, “As far as the documents received from the prior FOIA request are concerned, appellant has not demonstrated that those documents continue to be ‘freely available’ in any ‘permanent public record.’ Presumably they are not since appellant is invoking FOIA to obtain them. But, more importantly, appellant has not shown that the documents from the 1986 FOIA request have ever been replicated in public documents or in any other ‘permanent public record’ which would indicate that they are freely available.”

The practical obscurity argument has also reared its head in debates about whether to put court records online in various states.

For example, Utah’s Judicial Council in 2004 declared: “The most compelling argument against protecting aggregate compilations of otherwise public records is the obvious one: the individual records are public. This argument, while persuasive at first blush, ignores the very real benefits of ‘practical obscurity’ that exist when certain public information is available only in discrete, individual units, be they paper or electronic. Practical obscurity may well turn out to be nothing more than a quaint, Luddite notion, but, as things stand today, practical obscurity helps maintain a delicate balance between public access to court records and at least minimal personal privacy.”

The council went on to recommend online access, but the argument over practical obscurity still colored the debate over access.

Trickle-down effect into the states

Likewise, state courts in interpreting their own open records laws have applied the Supreme Court’s reasoning from Reporters Committee. In a 2008 New York case, Bursac v. Suozzi, a state trial court found that a county’s efforts to publicize drunken driving arrests in press releases violated the arrestees’ due process rights, despite the state’s freedom of information laws that make the data public. The New York court relied on the protection afforded Medico’s rap sheet in the federal Reporters Committee case.

Yet, for all the applications of the Reporters Committee decision that may have been unexpected, the one thing about the decision that stunned even the Justice Department attorneys was its ruling that an entire category of records — rap sheets — was out of the reach of FOIA, and that other categories of records might be, too.

“We hold as a categorical matter that a third party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no ‘official information’ about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is “unwarranted,” Stevens wrote for the Court.

In today’s world where information of all sorts is available at the touch of a button, and people seem ever more willing to publicly share their most secret information on social media web sites, the notion of practical obscurity does indeed seem almost quaint.

Nevertheless, privacy advocates are hanging on to it.

“Practical obscurity does have a future,” Jim Harper, the director of information policy studies at the Cato Institute, said at the American University conference. “We do have privacy because we have practical obscurity.”