Opposition Brief — United States Department of Justice v. Reporters Committee for Freedom of the Press

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No. 87-1379 MAR 17 jeg

CLeRK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES DEPARTMENT OF JUSTICE, et al.,

Petitioners,

Vv.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PREssS, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

KEVIN T. BAINE

Counsel of Record

PAUL MOGIN

WILLIAMS & CONNOLLY

Hill Building

Washington, D.C. 20006

(202) 331-5000

Counsel for Respondents

WILSON - Eres Printing Co... Inc. - 789-0096 - WASHINGTON. D.C. 20001

‘a é

ee ek ee eee

QUESTIONS PRESENTED

1. Whether an individual has a substantial pri-

vacy interest in information concerning his criminal

record, when that information is already a matter

of public record.

2. Whether the privacy interest in the criminal

record of a principal of a government defense con-

tractor is outweighed by the public interest embodied

in the disclosure policies of the Freedom of Informa-

tion Act.

TABLE OF CONTENTS

QUESTIONS PRESENTED ................2....22.2.022222--2000200-

TABLE OF AUTHORITIES ........ a

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT...

I. The Court of Appeals Correctly Held That There

Is Only an Attenuated Privacy Interest in Pub-

licly Available Criminal-Record Information __.

Il. Certiorari Should Not Be Granted To Clarify

the Law of the District of Columbia Circuit

Concerning the “Public Interest” Side of the

Balancing Test

CONCLUSION .......00. ee... ccleiiokdeines .

(iii)

Page

14

19

iv

TABLE OF AUTHORITIES

CASES:

7 v. United States Dep't of Justice, 617 F.2d

328 (D.C. Cir. 1980)

Cone v. United States Dep't of Commeree, 830

F.2d 388 (D.C. Cir. 1987) Foes

Chrysler Corp. V. Brown, 441 U.S. 281 (1979)

Cor Broadcasting Corp. Vv. Cohn, 120 U.S. 4169

(9975)......:... Bee eR ia a Seem A NA

Davis v. United States, 417 U.S. 333 (1970).

Ev parte Drawhaugh, 2 App. D.C. 104 (1891)

Fund for Constitutional Government Vv. National

Archives & Records Service, 656 F.2d 856 (D.C.

Cir. 1981) , =

Getman V. N.L.R.B., 150 F.2d 670 (D.C. Cir. 1971)

Glohe Newspaper Co. Vv. Superior Court, 457 U.S.

IE ME III idence oscsces sas Sistadaniesaaicdeietanaeieiiniaaiiadineaiaa as

Hammons vy. Scott, 122 F. Supp. 625 (N.D. Cal.

1976) Seal! PERT Tee ee ee

Henderson Vv. Milohshky, 595 F.2d 654 (D.C. Cir.

1978) ba

In re Sackett, 136 F.2d 248 (1943). baa ee 2 ee ae

McCormack vy. Oklahoma Publishing Co., 613 P.2d

SF ____, FRR ar AIS EnAT b tae Rane urea ce

Montesano Vv. Donrey Media Group, 99 Nev. 644,

668 P.2d 1081 (1983) NL Re AO A Stas FS Ss SP ne

NLRB vy. Robbins Tire & Rubber Co., 437 US. 214

(1978) “he sNcaaeinaai

Niron Vv. Warner Communications, Ine., 435 U.S.

589 (1978)

Paul v. Davis, 124 U.S. 692, (1976)

Press-Enterprise Co. V. Superior Court of Cali-

fornia, 1464 U.S. 501 (1984)

Richmond Newspaners, Ine. Vv. Virginia, 448 U.S.

ot RRR ae te

Rose v. Dep't of the Air Force, 195 F. 2d 261 (2d

Cir. 1971), aff’d, 125 U.S. 352 (1976)

Roshto v. Hebert, 459 So.2d 428 (La. 1985)

Rural Housing Alliance v. United States Dep't of

Agriv., 498 F.2d 73 (D.C. Cir. 1974)

Vv

TABLE OF AUTHORITIES—Continued

Page

Senate of Puerto Rico vy. United States Dep't of

Justice, 823 F.2d 574 (D.C. Cir. 1987) _............ 14

Shifflet v. Thomson Newspapers, 69 Ohio St. 2d

179, 431 N.E.2d 1014 (1982) (per evriam) ........ 7

Stern V. FBI, 737 F.2d 84 (D.C. Cir. 1984) .......... 15

United States Dep't of the Air Force Vv. FLRA, No.

87-1143 (7th Cir. Jan. 27, 1988) ..... ................. 15, 16

United States Dep't of State v. Washington Post

Ce, GR WE, GO CIID es civncccccevccsnccnscescccsenscesss . 10,11

Washington Post Co. v. United States Dep't of

State, No. 84-5601 (D.C. Cir. Feb. 5, 1988) —...... 15

Wisniewski v. United States, 353 U.S. 901 (1957)

SIND cciccptiniacidosdadineinesaicveichindireininmnttiint 17

CONSTITUTIONAL AND STATUTORY

PROVISIONS:

United States Constitution

First Amendment —..................... saccidileaniaineeiaianias x

United States Code

5 U.S.C. § 552(b) (3) (1982) ..... oo... af. 5

5 USC. § 552(b) (6) (1982) ...........000..............5, 14, 16

5 U.S.C §$552(b) (7) (C) (1982 & Supp. IV) 5, 14, 16

28 U.S.C. § 534 (1982)... . 4,138

REGULATIONS:

Gale: Oe EE IIE DP ecoinsceiscsctdcctasstasetassibiritnnss 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1379

UNITED STATES DEPARTMENT OF JUSTICE, ef a/.,

Petitioners,

Vv.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PREssS, ef a/.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

In January 1978, there were several published re-

ports that the United States Attorney in Philadelphia,

David Marston, was investigating two Democratic

congressmen from Pennsylvania, Joshua Filbere and

Daniel Flood, for alleged conflict of interest and cor-

ruption. C.A. App. 136. At the time, Congressman

Flood was a senior member of the House of Repre-

sentatives and Chairman of the House \ppropria-

tions Subcommittee. 7d. at 137.

4

CBS News assigned respondent Robert Schakne, a

correspondent in its investigative unit, to investigate

the allegations about Congressman Flood. Jbid. In

the course of Mr. Schakne’s investigation, he learned

that Congressman Flood had been instrumental in

arranging certain Department of Defense contracts

for Medico Industries. /bid. Mr. Schakne also learned

that William Medico, General Manager of Medico In-

dustries, had been identified by both the federal Bu-

reau of Narcotics and the Pennsylvania Crime Com-

mission as a “criminal associate” of organized crime

leader Russel Bufalino. Jhid. The Pennsylvania Crime

Commission report specifically stated that William

Medico had a criminal record which included “arrests

for suspicion of murder and assault, 2nd convictions

for hootlegging and disorderly conduct.” Jhid. The

report also included Medico Industries in a list of

“legitimate businesses dominated by organized crime

figures [which] have received a number of lucrative

public contracts.” Jbid.

Because of the great public interest in the-investi-

gation of Congressman Flood, and the potential news-

Worthiness of the relationship between an alleredly

corrupt congressman and a business that was report-

edly dominated by organized crime but was receiving

millions of dollars of federal funds, respondent Schakne

sought further information about the principals be-

hind Medico Industries, i.e., various members of the

Medico family. /d. at 137-137A.' In particular, Mr.

Schakne sought to verify the allee=tions concerning

the criminal records of the Medicos. /d. at 137A.

‘Citations to page “I37A” and, infra, to pawe “212A” are

to the unnumbered pages following pages 137 and 213, re-

spectively,

3

On February 3, 1978, following the rejection of an

oral request for information about the Medicos’ erim-

inal records, Mr. Schakne submitted a Freedom of

Information Act (“FOIA”) request to the Depart-

ment of Justice, seeking information about any sen-

tences, convictions, indictments, or arrests involving

William, Phillip, Charles, or Samuel Medico. Jd. at

137A, 179. The Department of Justice initially re-

fused to provide any of the requested information. Jd.

at 158, 180, 183. Mr. Schakne appealed, and the De-

partment of Justice agreed to disclose the criminal

identification record (i.e., “rap sheet”) of William

Medico, who was deceased, but otherv ise affirmed the

denial of Mr. Schakne’s request, id. at 158-39, 185-87.

On September 21, 1978, The Reporters Committee

for Freedom of the Press filed a FOLA request with

the Department of Justice for information about any

arrest, indictment, acquittal, conviction, or sentence

of William, Phillip, Charles, or Samuel Medico. Id,

at 159, 188. On October 30, 1978. the Department

responded that insufficient information had been pro-

vided to permit an accurate search for records per-

taining to William Medico, and it denied the request

for criminal-record information concerning the other

Mledicos. Jd. at 139-40, 190-91. That denial was

affirmed following an administrative appeal. dd. at

140, 192-193.

On March 15, 1979, in response to inquiries from

CBS News seeking clarification of the Department’s

position, Attorney General Griffin Bell stated that

after “a thorough review” of the Department’s “policy

and practice” it was “unanimously concluded tha:

- +. We are prohibited by statute and case law from

releasing certain records which may be contained in

4

the F.B.1.’s identification files, commonly known as

‘yap sheets.’ /d. at 140, 194. Attorney General Bell

further stated that criminal history information con-

tained in documents other than rap sheets might be

disclosed “if not otherwise exempt.” /d. at 140-41,

194. The Attorney General went on to explain that

the Department’s release of William Medico’s rap

sheet had stemmed from a lack of clarity concerning

the Department's position on the release of rap sheets.

id. at 141, 196.

Respondents filed suit under FOIA in December

1979. The complaint only sought the disclosure of

“matters of public record” that were responsive to

the FOLIA requests. /d. at 9. On April 29, 1985, the

government informed the district court of its decision

to velease all criminal-record information concerning

Phillip and Samuel Medico, explaining that they had

recently died and that disclosure was intended to be

“consistent” with the earlier release of criminal! in-

formation concerning William Medico, also deceased.

Id. at 245-243A. The government also belatedly con-

ceded that it now recognized the public interest war-

ranting disclosure of certain public-record informa-

tion regarding Charles Medico—namely, “financial

crime” information located in documents other than

rap sheets. Jd. at 243A. However, a search of De-

partment records other than rap sheets had turned up

no “tinancial crime” information concerning Charles

Medico. Jd. at 244. The government continued to

withhold any rap-sheet information that it might

have for Charles Medico or any “non-financial crime”

information concerning him. Ibid.

In the district court and the court of appeals, the

government contended that 28 U.S.C. $4534 (1982)

5

restricts disclosure of rap sheets and that they are

therefore exempt from disclosure under Exeniption 3,

» U.S.C. §$ 552(b) (5) (1982). As to both rap sheets

and other records, the government also invoked Ex-

emptions 6 and 7(C), 5 U.S.C. $$ 552(b) (6), 552 0b)

(7)(C) (1982 & Supp. IV). In this Court, the gov-

ernment has abandoned its reliance on Exemption 3

and is relying solely on Exemptions 6 and 7(C).

etition at 6 n.1.

REASONS FOR DENYING THE WRIT

The court of appeals’ decision ordering the release

of public-record criminal information does not war-

rant review by this Court. The court of appeals cor-

vectly held that there is only an attenuated privacy

interest in information concerning sentences, con-

victions, acquittals, indictments, or arrests that is

freely available to the public. And the court also cor-

rectly held that that attenuated privacy interest does

not outweigh the public interest in disclosure of in-

formation concerning the criminal record of an in-

(dividual whose company had received defense con-

tracts with the assistance of a congressman under

investigation for conflict of interest and corruption.

Respondents agree with the government that a

court may appropriately consider the public interest

in disclosure of particular information, if for no

other reason than to give concrete meaning to the

general interests in disclosure underlying FOIA and

to facilitate the balancing of the public interest

against any substantial privacy interest that may be

asserted. To the extent that the court of appeals de-

clined to distinguish among different types of pub-

licly available criminal-record information, its failure

6

‘o do so does not warrant review by this Court. The

United States Court of Appeals for the District of

Columbia Circuit has indicated on several occasions

that the public interest in the disclosure of particular

documents may be considered. ‘To the extent that the

opinion of the panel in this case creates confusion as

to the law in the D.C. Cireuit, the confusion can be

resolved by that Circuit in future cases. This panel's

discussion of how to assess the “public interest” did

not affect the result in this case, and is unlikely to

have the broad impact assumed by the government.

I. The Court of Appeals Correctly Held That There Is

Only an Attenuated Privacy Interest in Publicly Avail-

able Criminal-Record Information.

The government's petition for certiorari repeatedly

mischaracterizes the court of appeals’ holding con-

cerning privacy. The court of appeals did not

“treat{] all information contained in ‘public records’

as equally nonprivate,” Petition at 14, or equate priv-

ucy with “official secrecy at every level of government

where the information is maintained,” id. at 19. The

court simply held that there is only “a low-level priv-

acy interest in criminal records” which are “a matter

of public record.” App. 19a, 20a (emphasis added).

This result is correct and does not warrant review by

this Court.

There is nothing novel about the proposition that

there can be little, if any, privacy interest in arrests,

indictments, convictions, and other formal actions

that occur in the course of a criminal prosecution

This Court itself has recognized that an individual

has no significant privacy interest as to these mat-

ters. In Paul vy. Davis, 424 U.S. 693 (1976), the

Court squarely rejected Davis’s claim that the dis-

7

closure of his arrest on shoplifting charges invaded

his privacy: “His claim is based, not upon any chal-

lenge to the State’s ability to restrict his freedom of

action in a sphere contended to be ‘private,’ but in-

stead on a claim that the State may not publicize a

record of an official act such as an arrest.” /d. at

713. Numerous other decisions have also recognized

that a person has at most a minimal privacy interest

with respect to information about his criminal ree-

ord. See, e.g., Hammons vy. Scott, 423 F. Supp. 625

628 (N.D. Cal. 1976); Roshto v. Hebert, 439 So.2d

428, 432 (La. 1983); Montesano v. Donrey Media

Group, 99 Nev. 644, 668 P.2d 1081, 1084-86 (1985);

Shifflet v. Thomson Newspapers, 69 Ohio St. 24 179,

431 N.E.2d 1014, 1018 (1982) (per curiam); Me-

Cormack vy. Oklahoma Publishing Co., 613 P.2d 737,

741-42 (Okla. 1980).

By its very nature, information concerning ¢rim-

inal conduct and the administration of justice is pub-

lic, not private. “The commission of ciime.’ prosecu-

tions resulting from it, and judicial proceedings

arising from the prosecutions . . . are without ques-

tion events of legitimate concern to the public... .”

Cox Broadcasting Corp. v. Cohn, 420 U.S, 469, 492

(1975). A criminal charge or conviction is not a

private matter involving only the defendant; it is a

matter in which the entire community has a substan-

tial interest.

Precisely because of the inherently public nature

of, and strong public interest in, criminal prosecu-

tions, records of the formal steps in a criminal prose-

cution are freely available to the public in nearly all

jurisdictions. According to the amicus curiae brief

submitted by Search Group, Ine. in support of the

&

government’s suggestion of rehearing en banc, “in

virtually every state, records describing a_ specific

arrest are available to the public from the law en-

forcement agency that made the arrest,” and “[fi]n

virtually every state, records of court judicial pro-

ceedings are availabie from the court as a matter of

publie record.” Brief for Search Group, Ine. ef al. at

5-6 (citations omitted). The public availability of

such records is so well established that, to a large

extent, access to such records has been held to be a

matter of right, under both the common law and the

First Amendment. The courts have long recognized

a common-law right “to inspect and copy public rec-

ords and documents, including judicial records and

documents.” Nixon v. Warner Communications, Inc.,

435 U.S. 589, 597 (1978) (footnotes omitted); see,

e.g., In ve Sackett, 136 F.2d 248 (1943); Ex parte

Drawhaugh, 2 App. D.C. 404 (1894). And recog-

nizing the strong public interest in criminal prosecu-

tions, this Court has held that the First Amendment

creates a public right of access to criminal proceed-

ings. See, e.g., Press-Enterprise Co. v. Superior

Court of California, 464 US. 501 (1984); Globe

Newspaper Co. vy. Superior Court, 457 U.S. 596

(1982); Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555 (1980). Even when legitimate concerns of

witnesses or jurors are involved, the public may be

excluded from criminal proceedings only upon a spe-

cific finding of a compelling interest that cannot be

adequately protected in some other way. See Press-

Enterprise Co., 464 U.S. at 511-12; Globe Nevws-

paper Co., 457 U.S. at 606-07. Given these protec-

tions and the long tradition of public trials, it is in-

conceivable that the outcome of a trial—whether a

conviction or an acquittal—ean be considered a pri-

vate matter.

9

The widespread availability of criminal-record in-

formation undermines any suggestion that such in-

formation is, as a general matter, private. In this

case, of course, respondents expressly limited their

request to criminal-record information that is in fact

a matter of public :ecord. If there is any privacy

interest at all in such information, it is certainly

attenuated. As this Court explained in Cox Broad-

casting, “official records and documents open to the

public are the basic data of governmental opera-

tions,” 420 U.S. at 492, and “the interests in pri-

vacy fade when the information involved already

appears on the public record,” id, at 494-95 (empha-

sis added).

The court of appeals’ holding—that there is in wen-

eral no substantial privacy interest in publicly avail-

able criminal-record information—is unassailable. The

court of appeals would have een justified in holding

that there is o substantial privacy interest in avy

criminal-record information. The court carefully lim-

ited its holding, however, to information that is pub-

licly available in the jurisdiction in which the convie-

tion or other official act occurred. App. 4la-42a. If a

jurisdiction does not make certain criminal-record in-

formation freely available to the public, a substan-

tial interest in privacy may still exist as to that in-

formation. Moreover, the government's assertion to

the contrary notwithstanding, Petition at 15, the

court made it clear that the test is wot whether par-

ticular information “happen[s] to be” publicly avail-

able:

If a local law enforcement official provides crimi-

nal information episodically, or to only certain

requesters, that, in our view, would be inade-

10

quate to cause the privacy interest in those crim-

inal records to fade significantly.

App. 20a. What is controlling is not happenstance

but the “practices” of the jurisdiction in question.

App. 42a (emphasis added). If criminal records that

were publicly available are expunged, “they can no

longer be regarded as public.” App. 20a. Finally,

the court’s decision has no application at all to ree-

ords relating to confidential investigations. App.

18a.

The government’s reliance on footnote 5 of this

Court’s opinion in United States Dep't of State vs.

Washington Post Co., 456 U.S. 595 (1982), is mis-

placed. Petition at 14-16. There the Court indicated

that an interest in privacy is not necessarily vitiated

by the fact that information “is a matter of public

record somewhere in the Nation.” 456 U.S. at 603 n.5.

Many private matters may find their way into some

record available to the public; Washington Post Co.

merely recognizes that the appearance of informa-

tion in a publicly available document does not neces-

sarily mean that any interest in privacy is lost. The

* Under Department of Justice regulations, the Department

currently collects criminal record information only on “seri-

ous and or significant offenses,” 28 C.F.R. § 20.52(a) (1987),

and does not collect information on offenses committed by

juveniles unless they were tried as adults, id. § 20.22 (hb).

Although retention of information collected before the regu-

iations became effective is permitted, id. § 20.22(c), these

restrictions assure that information about minor crimes and

crimes committed during a person’s youth ordinarily will not

be collected by the Department. Juvenile matters are wn-

likely to be affected by the court of appeals’ decision in any

event, because they are generally treated confidentially.

il

Court was careful to note, however, that “(t]he pub-

lic nature of information may be a reason to con-

clude, under all th: circumstances of a given case,

that the release of such information would not con-

stitute a ‘clearly unwarranted invasion of personal

privacy,’....” Jhid. Here, the court of appeals con-

fined its holding to information that (1) is regu-

larly made available to the public, App. 42a, and (2)

concerns official acts occurring in the course of a

criminal prosecution. This conclusion in no way con-

flicts with Washington Post Co.

Indeed, the court of appeals went out of its way to

indicate that the information might be exempt if a

showing were made similar to the claim asserted in

Washington Post Co—that disclosure of the Ameri-

can citizenship of two “prominent figures in Ivan’s

Revolutionary Government” would invade their pri-

vacy by subjecting them to “‘a real threat of physi-

cal harm.’” 456 U.S. at 597. The court of appeals

made it clear that the information sought might be

exempt if there were reason to believe disclosure

would cause harm:

For instance, had it been shown to us that dis-

closure of Medico’s “rap sheet” would cause hin

particular harm, even though his privacy interest

is slight, we might well have reacted a different

conclusion.

App. 40. The court’s analysis was thus fully con-

sistent with Washington Post Co.

The Court can quickly dispense with the assertion,

Petition at 14, that the decision below conflicts with

the Second Circuit’s decision in Rose vy. Dep't of the

Air Force, 495 F.2d 261 i 2d Cir. 1974), aff'd, 425

U.S. 352 (1976). Rose did not concern either crim-

12

inal records or any other type of publicly available

information; it involved summaries of honor and

ethics hearings held at a military academy. Whereas

the ruling here applies to information which is in-

herently of public concern and is freely accessible to

the general public, the information in Nose related

solely to possible ethical transgressigns of students at

the academy, was available only within the military

academy, and even then was in some cases redacted

to protect the identity of the student. 495 F.2d at

266.

The government makes a great deal ot the ‘“‘wide-

spread concern that privacy is, as a practical matter,

threatened by the availability of compiled information

in large, centralized government data banks.” Peti-

tion at 18. But whatever concerns government data

banks may raise as a general matter, the existence

of such data banks cannot and does not transform

the fundamentally public information at issue here

—publicly available criminal-record information—

‘These striking differences dispose of the government's

charge that the court of appeals “ignor[ed} [an] important

element of personal privacy’—namely, that “persons with

prior access to the information may not have realized its

significance or may have forgotten what they once knew.”

Petition at 14 (citation omitted). It is one thing to recognize

that these factors help explain why there can be a legitimate

expectation of privacy where, as in Rose, information has

been disclosed only to a select group for a limited purpose.

It would be quite another thing to hold that there can be a

legitimate expectation of privacy as to pwblicly availabl

information concerning criminal conduct and the administra-

tion of justice. An individual’s interest in maintaining diiti-

culty of access to publicly available documents reflecting his

criminal record cannot be equated with a legitimate interest

in privacy.

13

into private information. A public fact such as a

conviction is not transformed into a private fact

when it is included in a government data bank.

The proper means of addressing concerns about

government data banks is executive action limiting

the gathering or retention of information thought to

pose a threat to privacy, or legislation limiting access

to particular types of information. As the court of

appeals noted, Congress has considered the possibility

of limiting access to federal compilations of public

criminal records, App, 23a n.15, 42a, but “has chosen

not to pass a statute that would establish the federal

policy that [petitioners] now urge us to announce

without a legislative mandate,” App. 42a. Since the

government has abandoned the contention, vigorously

advanced below, that 28 U.S.C. $ 534 prohibits dis-

closure of rap sheets, it is undisputed in this Court

that no federal statute prohibits disclosure of criminal

records. The concept of privacy under FOIA-should

not be distorted so as to serve as a surrogate for

separate legislation that the Department of Justice

helieves Congress should enact.*

‘The government's claim that the court of appeals’ ruling

will impose enormous administrative burdens on federal

agencies cannot withstand scrutiny. Petition at 19-20. First,

the government has made no showing that agencies receive a

substantial volume of requests for criminal-record informa-

tion. Second, an agency is not obligated to determine the

practices of the source jurisdiction before deciding whether to

release the information. FOIA exemptions are discretionary,

not mandatory. See Chrysler Corp. v. Brown, 441 U.S. 281,

292 (1979). Whether to determine the practices of the source

jurisdiction, on the small chance that the jurisdiction may

restrict access to the information, is for the government to

decide in the exercise of its discretion. Given that criminal-

record information is apparently freely accessible to the public

14

Il. Certiorari Should Not Be Granted To Clarify the Law

of the District of Columbia Circuit Concerning the

“Public Interest” Side of the Balancing Test.

This Court should also reject the government’s in-

vitation, Petition at 22-29, to grant certiorari to re-

view the court of appeals’ discussion of the “public

interest” side of the balancing performed under Ex-

emptions 6 and 7(C). The court of appeals empha-

sized that the Medicos reportedly had had dealings

with government officials, App. 38a, but declined to

create a hierarchy distinguishing among different

types of criminal-record information, App. 5&8a-40a.

The court indicated that the focus should be on “the

general disclosure policies of the statute,” App. 39a

(footnote omitted), and concluded that those policies

require disclosure of publicly available criminal-record

information concerning Charles Medico. App. 26a,

42a.

These statements do not warrant review by this

Court. Prior to the decision below, the District of

Columbia Circuit had repeatedly considered the public

interest in the particular information at issue in bal-

ancing the privacy interest at stake against the pub-

lic interest in disclosure under Fxemptions 6 and

7T(C). See, e.g., Carter vy. United States Dep't of

Commerce, 830 F.2d 388, 391 n.13, 394 & n.20 (D.C.

Cir. 1987): Senate of Puerto Rico vy. United States

Dep't of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987):

in nearly every state, see pp. 7-8, svpra, it would not be un-

reasonable for the Department of Justice to inform state

law enforcement agencies supplying criminal-record informa-

tion that such information will be subject to disclosure under

FOIA unless the agency notifies the Department that it re-

stricts access to the information.

15

Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984);

Fund for Constitutional Government vy. National Ar-

chives & Records Service, 656 F.2d 856, 866 (D.C.

Cir. 1981); Baez v. United States Dep't of Justice,

647 F.2d 1328, 1338-39 (D.C. Cir. 1980); Rural

Housing Alliance vy. United States Dep't of Agric.,

498 F.2d 73, 77-78 (D.C. Cir. 1974); Getman v.

N.L.R.B., 450 F.2d 670, 675-77 (D.C. Cir. 1971).

Although the panel below declined to distinguish

among different types of criminal-record informa-

tion, the panel’s general statements concerning assess-

ment of the “public interest” are unlikely to supplant

this long line of decisions and preclude any inquiry

into the interest in disclosure of the particular infor-

mation sought.” Indeed, in Washington Post Co. v.

United States Dep't of State, No. 84-5604 (D.C. Cir.

Feb. 5, 1988), which was decided after the decision

below and which the government itself cites, the court

remanded the case for a “balancing,” following dis-

covery and an evidentiary hearing, of “the disclosure

and the privacy interests staked out in this case.”

Slip op. at 21 (emphasis added). It is thus already

apparent that the panel decision in this case is un-

likely to have the sweeping effect ascribed to it by

the government.”

* Under settled precedent in the District of Columbia Cir-

cuit, one panel cannot overrule another; a panel decision can

be overruled only by the full court sitting en bane. See, e.¢.,

Henderson Vv. Milobshky, 595 F.2d 654, 657 n.14 (D.C. Cir.

1978).

“In an attempt to build up the importance of the court of

appeals’ abstract discussion of the “public interest’ issue,

the government asserts that the court’s decision may “en-

gender confusion.” Petition at 12 n.4. The government states

that in United States Dep't of the Air Force v. FLRA, No.

87-1143 (7th Cir. Jan. 27, 1988), the Seventh Circuit

16

It is obviously impossible to predict precisely how

later panels in the District of Columbia Circuit will

attempt to reconcile the statements in the opinion be-

low with the long line of decisions in the Circuit

focusing on the interest in disclosure of the specific

information sought. However, we suspect that the

opinion here will have little, if any, influence beyond

the factual situation that the court specifically ad-

dressed: criminal-record information freely accessible

to the public. As applied to those facts (the only con-

crete set of facts before the court), the refusal to

create a hierarchy distinguishing different types of

crime is entirely defensible.

The court was dealing with information which it

had already recognized posed little threat to privacy,

and was responding to the government’s contention

that the public interest in disclosure was minimal—

ever, though Medico Industries was. according to the

Pennsylvania Crime Commission, “dominated by or-

ganized crime figures,” and had been awarded lucra-

“agree[d] with the court below that courts may not inquire

into the public interest favoring disclosure of particular in-

formation.” Petition at 12 n.1. In fact, however, the Seventh

Circuit embraced the traditional approach to balancing the

public interest in disclosure against the privacy interest at

stake, while clarifying that the particular purpose of the

requester is not important: “The balancing ... must be con-

ducted at a more general level. Do the several uses to which

many people would put the information justify its release?”

Slip op. at 7. It is surprising that the governz.ent would cite

this opinion as evidence that the court of appeals’ decision

will create “confusion,” since the government itself states

that “we agree with the court's view that the Exemption 6

or Exemption 7(C) balance does not vary from case to case

depending on the identity of the requester.” Petition at 21

n.14.

17

tive defense contracts with the help of a congressman

under investigation for conflict of interest and corrup-

tion at the time of the FOIA requests. Given the mini-

mal privacy interest at stake, the substantial federal

funding, and the investigation of Congressman Flood,

the court was surely correct in ruling that no special

showing of importance was necessary to justify dis-

closure. Under the circumstances, the public interest

in any information concerning Charles Medico’s crim-

inal record outweighs whatever minimal privacy in-

terest may be at stake.

If the public interest in disclosure in this case is

judged in terms of the “basic purposes” that the gov-

ernment ascribes to FOIA, Petition at 27, respond-

ents’ requests easily satisfy the standard for dis-

closure. As the court of appeals noted, “[t]he

subjects of [respondents’] requests are alleged to

have had dealings with government officials . . . .”

App. 38a. Moreover, the dealings were significant,

and the type of information sought is pertinent to the

subjects’ fitness to receive government contracts. Re-

spondents’ requests are thus fully compatible with the

“basic purpose” of FOI\—*“to ensure an informed

citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to

hold the governors accountable to the governed.”

NLRB y. Robtins Tire & Rubber Co., 437 U.S. 214.

242 (1978) (citations omitted).

In the district court, the government conceded that

any interest in privacy was outweighed by the public

interest in disclosure of “financial crime” informa-

tion, but arbitrarily refused to disclose information

about any other crimes. Given the facts of this case,

18

the court of appeals properly rejected the govern-

ment’s contention that “non-financial crime” i.forma-

tion is exempt from disclosure. Any crime would be

relevant to Charles Medico’s fitness to carry out a

federal contract, and many “non-financial” crimes

(such as perjury or making false statements to a gov-

ernment agency) would be just as important as

“financial” crimes.

Any tension between the opinion below and other

opinions in the District of Columbia Circuit is net

one that merits the attention of this Court. Sec

Davis v. United States, 417 U.S. 333, 540 (1970);

Wisniewski v. United States, 353 U.S. 901 (1957)

(per curiam). That tension is likely to be resolved

in a satisfactory fashion without this Court's inter-

vention: in the unlikely event it is not satisfactorily

resolved, there will be time enough for the Court to

become involved.

Finally, if it ever becomes necessary for this Court

to resolve the “public interest” issue raised by the

government, the Court should do so in a case in which

it would receive an adversary presentation on the

issue. Here, respondents agree with the government

that the public interest in particular information

may be considered, if for no other reason than to

illustrate the general interests in disclosure underly-

ing FOIA and te facilitate the required balancing of

interests. The fact that the parties do not appear to

disagree on how to approach the “public interest”

question is an additional consideration making this

case an unworthy candidate for review by this Court.

19

CONCLUSION

For the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

KEVIN T. BAINE

Counsel of Record

PAUL MoGIN

WILLIAMS & CONNOLLY

Hill Building

Washington, D.C. 20006

(202) 231-5000

Counsel for Respondents