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

No. 87-1379

In the Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

Petitioners,

VS.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, ET AL..,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES CourRT OF

APPEALS FOR THE District or COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE

THE AMERICAN NEWSPAPER PUBLISHERS AS.-

SOCIATION, THE AMERICAN SOCIETY OF NEWS-

PAPER EDITORS, NATIONAL ASSOCIATION OF

BROADCASTERS, THE MIAMI HERALD PUBLISH-

ING COMPANY, THE WASHINGTON POST AND

McCLATCHY NEWSPAPERS, INC.

Laura Besvinick Richard J. Ovelmen

Greer, Homer, Cope & (Counsel of Record)

Bonner, P.A. John R. Borgo

CenTrust Financial Center Baker & McKenzie

34th Floor Suite 1600, Barnett Tower

100 Southeast 2nd Street 701 Brickell Avenue

Miami, Florida 33131 Miami, Florida 33131

(305) 350-5100 (305) 789-8900

Attorneys for Amici Curiae

[List of Counsel continued inside cover]

E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

W. Terry Maguire

Tonda Rush

American Newspaper

Publishers Association

The Newspaper Center

Box 17407

Dulles International

Airport

Washington, D.C. 20041

Attorneys for the American

Newspaper Publishers

Association

Richard M. Schmidt, Jr.

Cohn & Marks

1333 New Hampshire

Avenue, N.W.

Suite 600

Washington, D.C. 20036

Attorney for the American

Society of Newspaper

Editors

Henry L. Baumann

Steven A. Bookshester

National Association of

Broadcasters

1771 N Street, N.W.

Washington, D.C. 20036

Attorneys for National

Association of

Broadcasters

Samuel A. Terilli

General Counsel

The Miami Herald

One Herald Plaza

Miami, Florida 33101

Attorney for The Miami

Herald Publishing

Company

Boisfeuillet Jones, Jr.

Carol Melamed

The Washington Post

1150 Fifteenth Street, N.W.

Washington, D.C. 20071

Attorneys for The

Washington Post

Gary B. Pruitt

Counsel

McClatchy Newspapers, Inc.

2100 “Q” Street

Sacramento, California

95852

Attorney for McClatchy

Newspapers, Inc.

TABLE OF CONTENTS

cas cceeenepwasoonncnomnsennns III

STATEMENT OF INTEREST ......................0.002002....-.. 1

STATEMENT OF THE CASE ..0oo222......ee.eeeeeeeeeeeeeeeeees 3

SUMMARY OF ARGUMENT 0. 3

ESET 6

I. THE COMPILATION OF PUBLIC REC-

ORD CRIMINAL HISTORY INFORMATION

DOES NOT GIVE RISE TO A SUBSTAN-

TIAL INTEREST IN PRIVACY 0000... 6

A. PUBLIC RECORD CRIMINAL HIS-

TORY INFORMATION IS OF LEGIT-

IMATE PUBLIC CONCERN AND A

PARTICULARLY APPROPRIATE SUB-

JECT OF PRESS REPORTING ............. aoe

B. THE CRIMINAL HISTORY INFORMA-

TION REQUESTED HERE IS STRICT-

LY LIMITED TO MATTERS OF PUB-

Tene 9

C. COMPILED PUBLIC RECORD CRIM-

INAL HISTORY INFORMATION IS

NOT “PRIVATE” AND ITS DISCLO-

SURE DOES NOT IMPLICATE PRI-

i i ccetbaseeenidinsgnncscsonecensaceowees 10

1. Because The Information Requested

Does Not Involve Intimate Aspects

Of An Individual’s Private Life, No

Privacy Interests Are Implicated By

a ccnssnsusnenacoonensonnees 11

II

2. The Government’s Definition Of Pri-

vacy Is A Radical Departure From

Law And Has Been Repudiated By

The Solicitor General In The Past ....

3. The FBI’s Compilation And Use Of

Public Record Criminal History In-

formation Gives Rise To An Interest

In Access, Not A Right Of Privacy ....

D. THE AD HOC BALANCING AP-

PROACH ADVOCATED BY THE GOV-

ERNMENT THREATENS TO AFFORD

THE FBI STANDARDLESS DISCRE-

GEE oo :.:incca coastline

Il. ACCESS TO THE REQUESTED INFOR-

MATION: SERVES IMPORTANT PUBLIC

gs ee

CCT I cess receesnccersessnensenasninseneseaseecssasassensueneseseees

12

15

17

Ill

TABLE OF CITATIONS

Cases

Associated Press v. United States District Court, 705

Se I a cailintamenmie 8

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

SaNee ) TEU rere IORI 7 ol OES 4,7, 8, 10

FBI v. Abramson, 456 U.S. 615 (1982) 2000 e.. 16

Globe Newspaper Co. v. Superior Court, 457 U.S. 594

SEED ‘ceatelieiaeiehasiisibteniceedeishaiteasasdaieihidetnssnaqencsnteereenniunnnteseinveainiieies 7,8

Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974) ........ 17

Paul v. Davis, 424 U.S. 693 (1976) 2.0... 4, 11

Press-Enterprise Co. v. Superior Court, 464 U.S. 501

SITET siithsieshiceecideshashaeinanliapiataieidaieiidcalisidaaaaieetaaedinaisinaiaatins 7,8

Press-Enterprise Co. v. Superior Court, 106 S.Ct. 2735

RII jdelacheiceauiniaipesatiabiapiecsheaitanoisbneseceantlicahigaadaiieaiadtilahateilindl 4,7,8

Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d

Snr TINIE iidcecuedinecepstisnebaiabditinlancstiatsloadadcaasieiieiadummaanancianes 8

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

EE See a eee ee ae eee sacuaihin 7,8

Whalen v. Roe, 429 U.S. 589 (1977) 2.0220. 4,11

Books and Publications

C. Fried, An Anatomy of Values (1970) —..00000000000..... 11

Fried, Privacy, 77 Yale L.J. 475 (1968) 00000000. 11

Fried, Privacy: Economics and Ethics, A Comment

on Posner, 12 Ga. L. Rev. 423 (1978) 000... 13

Posner, The Right of Privacy, 12 Ga. L. Rev. 393

(| ASRS Tec eraser Soe ae ne ES 14, 15

B. Sanford, Libel and Privacy (1985) ............ vom 10

IV

Search Group, Inc., Privacy and Security of Criminal

History Information: Privacy and the Media, Bu-

reau of Justice Statistics (1979) -.......00...0..0000000.n.. 8

Restatement (Second) of Torts, §652D —.......0...00........ 10, 11

No. 87-1379

In the Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES DEPARTMENT OF JUSTICE, ET AL..,

Petitioners,

vs.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, ET AL.,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES CouRT OF

APPEALS FOR THE District or CoLuMBIA CIRCUIT

BRIEF OF AMICI CURIAE

THE AMERICAN NEWSPAPER PUBLISHERS AS-

SOCIATION, THE AMERICAN SOCIETY OF NEWS-

PAPER EDITORS, NATIONAL ASSOCIATION OF

BROADCASTERS, THE MIAMI HERALD PUBLISH-

ING COMPANY, THE WASHINGTON POST AND

McCLATCHY NEWSPAPERS, INC.

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae The American Newspaper Publishers As-

sociation, The American Society of Newspaper Editors,

2

National Association of Broadcasters, The Miami Herald

Publishing Company, The Washington Post and McClatchy

Newspapers, Inc. (the “amici’”’) file this brief in support

of Respondents Reporters Committee for Freedom of the

Press and Robert Schakne. Petitioners and Respondents

have each consented to the filing of this brief. Their

written consents are on file with the Clerk of this Court.

The amici represent news reporters, editors, pub-

lishers and broadcasters.' The amici have a direct in-

terest in the outcome of this appeal, which will determine

whether they have access under the Freedom of Informa-

tion Act (FOIA) to public record criminal history informa-

tion compiled and maintained by the Federal Bureau of

Investigation. Such access is important to the amici,

since they frequently utilize FOIA to report news con-

cerning governmental activities, and they routinely rely

upon public records of arrests, indictments, convictions,

1. The American Newspaper Publishers Association is a

non-profit corporation whose membership consists of about 1,400

newspapers constituting over ninety percent of the total daily

and Sunday newspaper circulation, and a substantial portion of

the weekly newspaper circulation, in the United States. The

American Society of Newspaper Editors is a nationwide pro-

fessional organization of more than 950 persons who hold posi-

tions as directing editors of daily newspapers throughout the

United States. The National Association of Broadcasters is a non-

profit incorporated association of radio and television broadcast

stations and networks, including more than 5,000 radio stations,

900 television stations, and the major commercial broadcast net-

works. The Miami Herald Publishing Company is a division of

Knight-Ridder, Inc. a Florida corporation, and publishes The

Miami Herald, a daily newspaper in Miami, Florida, which is

distributed throughout the State of Florida. The Washington

Post, a division of the Washington Post Co., publishes a daily

newspaper of general circulation in the Washington, D.C. area

(circulation approximately 800,000 on weekdays, 1,000,000 on

Sundays) and maintains a substantial newsgathering organiza-

tion. McClatchy Newspapers, Inc. owns and operates twelve

newspapers in California, Washington, and Alaska with an

aggregate circulation of approximately 700,000.

3

acquittals and sentences to accurately report and edit

news concerning organized crime, career criminals, , ublic

officials, and the operations of the Department of Justice,

the Federal Bureau of Investigation, and other law en-

forcement agencies. A ruling granting access would

markedly facilitate the traditional role the amici play in

monitoring government and the activities of organized

crime.

STATEMENT OF THE CASE

The amici adopt the Statement of the Case set forth

by Respondents in their Brief.

SUMMARY OF ARGUMENT

The court below held that the compiled public record

criminal history information of reputed organized crime

figure Charles Medico was not exempt from disclosure

under the Freedom of Information Act (“FOIA”) because

the disclosure of such information would not result in

an “unwarranted invasion of personal privacy.” The

government argues that this holding is incorrect, implausi-

bly asserting that a public agency’s compilation of public

record information regarding matters of legitimate public

concern somehow creates a substantial privacy interest

which outweighs the public interest in access under the

FOIA.

The government’s contention -nust be rejected and the

decision of the court of appeals affirmed. Records of the

criminal justice system—arrests, indictments, convictions,

4

acquittals and sentences—inherently involve matters of

legitimate public concern. Consequently, this Court has

recognized the constitutional right of the public to mon-

itor criminal proceedings and to inspect criminal records,

as well as the central role of the press in informing the

public about the criminal justice system. Press-Enterprise

Co. v. Superior Court, 106 S.Ct. 2735 (1986); Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975).

In addition, the specific information requested in this

case is limited to matters of public record. Accordingly,

to the extent any interest in privacy in such information

might ever have existed, it would have substantially

“faded” as a matter of law. No individual has any legit-

imate expectation that public records of official actions of

the criminal justice system will be treated as “private.”

Faced with the fact that the requested information is

both a matter of legitimate public concern and contained

in pre-existing public records, the government’s strategy

is to define privacy so broadly as to include any and all

information relating to an individual. The government's

definition of privacy as “control over information about

oneself’ proves too much and must be rejected as radically

overbroad. This Court has recognized, as has the Solicitor

General in his prior academic writings, privacy extends

to control over certain intimate personal information re-

lating to one’s private affairs. Whalen v. Roe, 429 U.S.

589 (1977). It does not encompass control over all in-

formation, regardless of its character. Records of arrests,

indictments, convictions, acquittals and sentences simply

are not information concerning those intimate aspects of

one’s private life that give rise to a cognizable privacy

interest. Paul v. Davis, 424 U.S. 693 (1976). But even

were the government correct in defining privacy so

broadly, its argument would fail. Since the information

here is compiled from admitted public records, there can

be no claim to any personal right to “control” or to “dis-

close” it.

This case thus reduces to the government’s naked

assertion that the mere collection and compilation of non-

private information by a public agency renders such in-

formation “private.” The gravamen of a privacy claim

is the wrongful public disclosure of private facts, but

the government’s objections to access to the information

at issue actually relate to inaccurate collection and possible

subsequent misuse. Thus, although the government’s

purported concern for the potential misuse of compiled

information is admirable, it demonstrates privacy is not

an issue here. The potential for misuse of collected public

record information by a powerful public agency like the

FBI does not create a privacy interest; it suggests the

need for proper user safeguards, and public access to

“watchdog” the implementation of those measures. Thus

the act of governmental compilation of public records

triggers an even greater interest in access: access enables

citizens to determine whether and how government is

using its authority to compile these records.

Finally, the court below properly held that the public

interest in disclosure outweighed the de minimis privacy

interest in the information requested here. Reports of

governmental waste and corruption lie near the core of

the First Amendment. Oftentimes, as in this case, dis-

closure of criminal history information greatly facilitates

such reports.

The decision of the court of appeals should be affirmed.

ARGUMENT

THE COURT OF APPEALS CORRECTLY HELD

THAT COMPILED PUBLIC RECORD CRIMINAL

HISTORY INFORMATION IS NOT EXEMPT FROM

THE FREEDOM OF INFORMATION ACT

Under Exemptions 6 and 7(c) of the Freedom of

Information Act, records are exempt from disclosure when

the personal interest in the privacy of the information

they contain outweighs the public interest in their dis-

closure. The court below properly held that Charles

Medico’s privacy interest in his public record criminal

history information did not outweigh the public interest

in its dissemination through the FOIA. Accordingly, the

decision of the court of appeals should be affirmed.

I. THE COMPILATION OF PUBLIC RECORD

CRIMINAL HISTORY INFORMATION DOES

NOT GIVE RISE TO A SUBSTANTIAL INTER-

EST IN PRIVACY

The court below correctly determined that Charles

Medico had at most a minimal privacy interest in the

information requested by the Reporters Committee. First,

criminal history information in general is of legitimate

public concern and the proper subject of press inquiry.

Second, the information requested was limited to public

record criminal history information in which any cog-

nizable interest in privacy would be substantially reduced.

Third, criminal history information is not of an intimate

nature and therefore does not give rise to a protectable

privacy interest, regardless of the form in which such in-

formation is maintained. Contrary to the government's

contention, the compilation by a public agency of public

records concerning matters of legitimate public concern

7

enhances the need for public access to such information;

it does not create a new privacy interest. Likewise, access

to this information is unrelated to employment discrim-

ination. The objections of the government and the Amer-

ican Civil Liberties Union are directed to the misuse of

compiled information, not its disclosure, and are therefore

inapposite here. Finally, the government's suggestion

that the content of the specific criminal history informa-

tion requested should determine the weight of the privacy

interest in the information must be rejected. Such an

approach could be construed to repose virtually stan-

dardless discretion in the agency.

A. PUBLIC RECORD CRIMINAL HISTORY

INFORMATION IS OF LEGITIMATE PUB-

LIC CONCERN AND A PARTICULARLY

APPROPRIATE SUBJECT OF PRESS RE-

PORTING

This Court has frequently noted the structural im-

portance of public access to information concerning the

operation of our system of criminal justice, and the spe-

cial role the press plays in effectuating the right. Press-

Enterprise Co. v. Superior Court, 106 S.Ct. 2735 (1986);

(“Press-Enterprise II’); Press-Enterprise Co. v. Superior

Court, 464 U.S. 501 (1984) (“Press-Enterprise I”); Globe

Newspaper Co. v. Superior Court, 457 U.S. 594 (1982);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980). Specifically, the Court has held that “commis-

sion of crime, prosecutions resulting from it, and judicial

proceedings arising from the prosecutions .. . are with-

out question events of legitimate concern to the public

and consequently fall within the responsibility of the

press to report the operations of government.” Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975).

This fundamental right of access serves interests of

profound importance: public scrutiny “enhances the

quality and safeguards the integrity of the fact-finding

process, with benefits to both the defendant and to soci-

ety as a whole.” Globe, 457 U.S. at 606. Access fosters

“an appearance of fairness, thereby heightening public

respect for the judicial process” and “permits the public

to participate in and serve as a check upon the judicial

process—an essential component in our structure of self-

government.” Id. (footnote omitted).

The special role of the press in this constitutional

scheme rests at least in part on the realities of the

evolving complexity of our society. “Instead of acquiring

information about trials by first hand observation or by

word of mouth from those who attended, people now

acquire it chiefly through the print and electronic media.

In a sense, this validates the media claims of functioning

as surrogates for the public.” Richmond Newspapers,

448 U.S. at 572-73. “[I}n a society in which each indi-

vidual has but limited time and resources with which

to observe at first hand the operations of his govern-

ment, he relies necessarily upon the pres. to bring to

him in convenient form the facts of those operations.

Great responsibility is accordingly placed upon the news

media to report fully and accurately the proceedings of

government, and official records and documents open to

the public are the basic data of governmental operations.”

Cox, 420 U.S. at 491-92 (emphasis added) .’

2. Although this Court’s decisions addressing the qualified

First Amendment right of access have generally addressed

ceedings, the right has likewise been extended to records both

by this Court and the lower federal courts. Press-Enterprise II,

106 S.Ct. 2735 (1986) (transcript of preliminary hearing); Press-

Enterprise 1, 464 U.S. 501 (1984) (transcript of voir dire); Pub-

licker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)

(transcript of hearing); Associated Press v. United States District

Court, 705 F.2d 1143 (9th Cir. 1983) (pre-trial documents).

The information at issue in this case is compiled from

records that are “the basic data” of the criminal justice

system: arrests, indictments, convictions, acquittals and

sentences. Thus, their availability through the FOIA

would greatly aid the press in the performance of its

special constitutional role of reporting such matters to

the public. There can be, and is, no dispute that the

records requested are of public actions taken by public

agencies about which the public has a right to know.

3. The states accord compilations of criminal history in-

formation maintained by their own law enforcement agencies

varying degrees of confidentiality. Some states grant broad

public access to the records, some limit their use to criminal

justice purposes, some explicitly permit the news media access

and others allow dissemination to potential employers. In large

part, the states appear to be motivated not by any concern for

individual privacy but by the desire to limit dissemination of

the possible misuse

}

I

fe

:

:

|

confidentiality and use limitations at the state level. Brief

of Amici Search Group, Inc., et al., with respect to petition

for en banc, at 12. For the government now claim

10

information requested in this case is a matter of public

record.

This Court has observed that “even the prevailing

law of privacy generally recognizes that the interests

in privacy fade when the information involved already

appears on the public records.” Coz, 420 U.S. at 494-95.

This Court has held the public’s entitlement to inspect

public records itself entails the right of the press to

gather and report the information in them: “Public rec-

ords by their very nature are of interest to those con-

cerned with the administration of government, and a

public benefit is performed by the reporting of the true

contents of the records by the media. The freedom of

the press to publish that information appears to us to be

of critical importance to our type of government in which

the citizenry is the final judge of the proper conduct

of public business.” Id. at 495. Thus, irrespective of

the content of the records requested, they present no

cognizable privacy interest because that content is al-

ready a matter of public record.

C. COMPILED PUBLIC RECORD CRIMINAL

HISTORY INFORMATION IS NOT “PRI-

VATE” AND ITS DISCLOSURE DOES NOT

IMPLICATE PRIVACY RIGHTS

The burden the government must shoulder is the

Orwellian task of demonstrating that the dissemination

of public records concerning matters of public concern

4. The common law clearly recognizes that once information

is a matter of public record, it can no longer be private. See,

B. Sanford, Libel and Pri , $113.2 (1985) (citing cases).

The Restatement (Second) of Torts is in accord: “Thus there is

no liability for giving publicity to facts about the plaintiff's

— Se 0. GS a aa Id. at §652D, Com-

ment D.

i

11

compiled by a public agency constitutes an unwarranted

invasion of privacy. That the arguments for such an

implausible claim are deeply flawed is shown in what

follows.

1. Because The Information Requested Does

Not Involve Intimate Aspects Of An Indi-

vidual’s Private Life, No Privacy Interests

Are Implicated By Its Dissemination

This Court has considered the right to privacy in

numerous contexts, but the ground common to all such

cases is that privacy involves the most intimate and

fundamental personal aspects of one’s life, “matters re-

lating to marriage, procreation, contraception, family rela-

tionships, and child rearing and education.” Paul v.

Davis, 424 U.S. 693, 713 (1976). Thus, this Court has

quoted Professor Philip Kurland with approval: privacy

includes “the right of the individual not to have his

private affairs made public by the government.” Whalen

v. Roe, 429 U.S. 589, 598-600 (1977).

Similarly, the common law defines the corollary tort

of invasion of privacy in relevant part as giving “public-

ity to a matter concerning the private life of another.”

Restatement (Second) of Torts, §652D. The Solicitor Gen-

eral has likewise recognized in his academic writings that

the right of privacy is implicated only by the most inti-

mate relationships of an individual’s private life: “It

is my thesis that privacy is . . . necessarily related to

ends and relations of the most fundamental sort: respect,

love, friendship, and trust.” C. Fried, An Anatomy of

Values 140 (1970); accord Fried, Privacy, 77 Yale LJ.

475, 477 (1968).

The information requested here derives from public

records of official actions taken by the criminal justice

12

system. The information does not involve any intimate

aspect of an individual’s private life. As such, the in-

formation simply does not provide a predicate for any

claim of an unwarranted invasion of privacy.

2. The Government's Definition Of Privacy

Is A Radical Departure From Law And

Has Been Repudiated By The Solicitor Gen-

eral In The Past

Faced with the obviously troublesome facts that the

records requested do not involve intimate aspects of the

private life of any person and do consist of public records

of public actions which are of legitimate public concern,

the government is forced to adopt a redefinition of “pri-

vacy” which is a radical departure from, and broadening

of, the traditional legal and common understanding of

the term.

According to the government, privacy is “the indi-

vidual’s right to control dissemination of information about

himself.” Br. 20. Crucial to this definition is the absence

of any refinement or limitation of the nature of the

information to be controlled. In short, there is no re-

quirement in the definition that the information be in

some sense “private” for there to be an invasion of privacy

in its dissemination. Based largely on this overbroad def-

inition, the government argues that the disclosure of com-

piled criminal justice information which is otherwise a

matter of public record constitutes an invasion of privacy

because it violates the individual’s right to control the dis-

semination of any information relating in any way to him-

self.

This definition of privacy, and consequently the gov-

ernment’s claim that the fact of compilation somehow gives

13

rise to a privacy interest in public record criminal history

information, must be rejected. Indeed, the Solicitor Gen-

eral has himself, writing in another forum, explicitly re-

jected the definition of privacy espoused by the govern-

ment here. In response to criticism of the definition of

privacy as control over information about oneself, then

Professor Fried wrote:

The particular point which [Professor Richard]

Posner denies and which I on an earlier occasion

had asserted is that privacy is to be defined as the

control of information about oneself. Posner’s analy-

sis demolishes the notion that there is any such gen-

eral right or that it would make much sense to rec-

ognize one.

Fried, Privacy: Economics and Ethics, A Comment on

Posner, 12 Ga. L. Rev. 423, 423-24 (1978). In the article

Professor Fried admits that the argument that individuals

possess a right to privacy defined as the right to control

information “won’t go through.” Id. at 427. The disclo-

sure of information about an individual violates his right

of privacy only if it violates some underlying substantive

right. The disclosure of information standing alone does

not violate any right to privacy:

[Ijf such information is obtained without violating

some other right, I have not been wronged, showing

in fact that the basis of right resides not in the informa-

tion but in those other domains.

Id.

This argument reveals the fundamental flaw in the

government’s position here. There is no underlying sub-

stantive right to limit dissemination of public record

criminal history information. The fact of an arrest, convic-

14

tion, or sentence is not an intimate private fact the dis-

closure of which would violate some underlying funda-

mental right. It is a matter of public record reflecting

official actions taken with respect to the individual by the

criminal justice system.

In the article which elicited the Solicitor General’s

abandonment of the concept of privacy he advocates here,

Judge Posner rejects any privacy interest in criminal his-

tory information. Compare Posner, The Right of Privacy,

12 Ga. L. Rev. 393 (1978) with Fried, supra. Judge Posner

trenchantly observes: ‘Much of the demand for pri-

vacy, however, concerns discreditable information, often

information concerning past or present criminal activity.

And often the motive for concealment is, as sug-

gested earlier, to mislead those with whom he trans-

acts... . It is not clear why society should assign the

property right in such information to the individual to

whom it pertains; and the common law, as we shall see,

generally does not.” Posner, supra, at 399. Judge Posner

states bluntly, “we have no right, by controlling the in-

formation that is known about us to manipulate the opin-

ions that other people hold of us.” Id. at 408.

The assertion of a privacy interest in public record

criminal history information is not merely contrary to the

dignity inherent in a right-holder’s genuine privacy claims,

it also denigrates the integrity of those individuals in soci-

ety who would otherwise have access to such records. In

rejecting the claim that “privacy” interests entail a right

to conceal criminal nistory information in order to secure

a “fresh start” for the rehabilitated, Judge Posner notes

the idea “rests on the popular though implausible and,

to my knowledge at least, unsubstantiated assumption

that people do not evaluate past criminal acts [or alle-

gations of them] rationally, for only if they intentionally

15

refused to accept evidence of rehabilitation could one

argue that society had unfairly denied the former mis-

creant a fresh start.” Id. at 409. As the court below

noted, where a conviction or arrest is old and for a

minor offense, the “privacy” interest in its nondisclosure

is “inappreciable” because its significance to the assessment

of the individual is minimal. 816 F.2d at 741 n.14.

Thus, the government’s putative privacy right can-

nibalizes the very interests it seeks to serve. Rather

than respecting individual dignity, it denies it. Rather

than protecting a fundamental interest, it seeks only to

help the individual to evade accountability and to mis-

lead his fellows.

Even were the government’s definition of privacy

correct, it would fail to apply to the requested informa-

tion because it is found in public records. The individ-

ual, by definition, has no right to control the disclosure

of public record information. This information has al-

ready been disclosed, and its further dissemination is

beyond any individual’s control. What the government

seeks to control here is not the disclosure of private

information, but the very different power to control ac-

cess to a particular source of compiled public criminal

history information. That the compilation and use of

such public records by a public agency does not give

rise to a privacy claim is shown next.

3. The FBI’s Compilation And Use Of Public

Record Criminal History Information

Gives Rise To An Interest In Access, Not

A Right Of Privacy

The mere fact that public criminal history records

have been aggregated and computerized does not change

16

the public character of the information compiled. Cer-

tainly Congress has yet to enact legislation to that effect.

Nor does the simple act of compilation implicate the

putative privacy right to “control information about one-

self.” This Court’s FOIA decisions support this conclu-

sion. Thus, in FBI v. Abramson, 456 U.S. 615 (1982),

this Court held that it was error to treat “the originally

compiled record and the derivative summary .. . com-

pletely differently | where} the content of the information

is the same.” Id. at 625. The Court concluded that if

the information was exempt from disclosure in the first

instance, it must likewise be so in the second. The same

rule applies here. Where the basic information is public,

no change in the form of the information will suffice to

change its character.

Indeed, the nationwide compilation of criminal his-

tory information by a federal agency of enormous power,

such as the FBI, enhances the need for public access. As

the government well recognizes, there exists in the com-

pilation, computerization and centralization of criminal his-

tory data the potential for abuse. Br. 24-28. That po-

tential for abuse, however, relates to the inaccuracy of

the information collected and the ends for which it is

subsequently used—concerns which are not privacy con-

cerns and could not be privacy concerns inasmuch as

this data is already public. As the brief of the American

Civil Liberties Union suggests, the true objection is to

possible misuses of the data, such as to facilitate discrim-

ination. Discrimination is different from privacy, how-

ever; indeed, public access is often the most powerful

antidote to discrimination. Here, then, as in all other

facets of the criminal justice process, public monitoring

17

can perform an essential task. Access to the information

ensures that the databank cannot be selectively employed

by the government, or others, either to unfairly bestow

largesse or to damage an individual.

D. THE AD HOC BALANCING APPROACH

ADVOCATED BY THE GOVERNMENT

THREATENS TO AFFORD THE FBI STAND-

ARDLESS DISCRETION

The government offers the ironic argument that

this Court should reject the approach of the court below

in part for administrative efficiency reasons. The govern-

ment complains that the appeals court “imposed on the

FBI the task of ascertaining whether the requested in-

formation is available as a ‘public record’ in some other,

nonfederal government office, a fact .. . which is often

not known.” Br. 36. Specifically, the government is

concerned that arrest records expunged at the !ocal level

may still appear in the government’s compilation. The

government apparently contends that the possibility of

such an error would require the FBI to verify the accuracy

of every compilation prior to disclosure, a burden the FBI

would prefer to avoid.

Yet the government’s argument only serves to under-

score the need for disclosure. Neither the federal gov-

ernment, nor any local law enforcement agency, should

be maintaining and using compiled criminal history infor-

mation which reflects expunged arrest records, regardless

of whether such information is publicly disseminated.

Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974). Indeed,

if public access forces the FBI and local law enforcement

agencies to employ protective measures to ensure that

18

such compilations are accurately maintained and updated,

the FOIA has been successful.

The irony of the government’s position is that the

approach advocated by the court below actually places

little, if any, administrative burden on the FBI, in con-

trast to the “standard” proposed by the government here.

Under the decision below, the public record status of the

information requested obviates any activity by the FBI

other than disclosure. In contrast, the government would

have the FBI scrutinize each entry on every criminal rec-

ord requested in order to assess the putative private and

public interests affected by release. The agency would be

required to consider the seriousness of the crime evidenced

by the entry, the age of the entry, the disposition, and

the sentence imposed. Every entry would need to be

considered as well as the possible nexus between each

entry and the specific public interest to be served by

disclosure. The government gives no indication of how

this “calculus of interests” would apply in specific cases,

although it is obvious that the judgments to be made

would be both myriad and complex.

Analysis of the government's position thus yields an

entirely different impression than does first reading. Al-

though seemingly sensitive to privacy interests, the “cal-

culus” proposed by the government is so complicated and

involves so many factors that it provides no meaningful

disclosure standard at all. To the contrary, it threatens

to imbue the FBI with virtually unlimited discretion

to disseminate compiled criminal history records, either

in whole or in selectively redacted part, to one individual

and not to another as it might see fit. Such was never

the intent of the FOIA; the government's position must

be rejected.

19

Il. ACCESS TO THE REQUESTED INFORMATION

SERVES IMPORTANT PUBLIC INTERESTS

This case aptly illustrates the public interests served

by press access to FBI “rap sheets.” CBS News assigned

correspondent Robert Schakne to investigate allegations

of public corruption on the part of the Chairman of the

House Appropriations Subcommittee, congressman Daniel

Flood. In the course of his investigation Schakne dis-

covered that Flood had played a key role in the awarding

of defense contracts to Medico Industries, a business which

the Pennsylvania Crime Commission indicated was dom-

inated by “organized crime figures.” To further this

investigatory effort, Schakne submitted FOIA requests

for the criminal history records of the Medicos. His pur-

pose was to determine whether Congressman Flood had

in effect aided members of organized crime in obtaining

highly lucrative and sensitive public contracts.

These facts suggest some of the important public

interests served by access to the requested information

under the FOIA. One of the traditional roles of the press

is to report on governmental affairs, see supra, at 7-9,

and the infiltration of the defense department’s contract

procurement process by organized crime is a news story

of unusual public concern. Access to the records here

would have played a material role in reporting the story,

as indeed rap sheet information is frequently crucial to

reporting on organized crime. Where, as may be the case

here, there is a connection between organized crime and

government operations, access to criminal history informa-

tion may be of even greater social significance.

A second, equally important concern is whether the

government officials who awarded Medico the contracts

20

were aware of his criminal history. If they had access

to it, and awarded the contracts anyway, serious ques-

tions concerning their conduct arise. If they did not

know, about Medico’s record, they should have, and the

importance of press access to such data is demonstrated.

The press serves an important function when it reports

on matters that law enforcement has been unable to

police because of limited resources, incompetency, or pro-

cedures which require reform or improvement.

Law enforcement and the press alike must strive

to do their jobs in an age of increasing complexity and

dwindling resources. The purpose of FOIA is to reduce

information costs in order to facilitate the public’s right

to know. Likewise, the compilation of public criminal

history information by the FBI serves to reduce the

specific information costs associated with effective law

enforcement. Seldom has the application of the “core

purposes” of the FOIA to the requested information been

clearer than it is here. Without access, the press will

have to engage in expensive and time consuming research

to report matters of public record which the FBI already

has compiled. This Court need look no further than the

facts of this case—facts the Solicitor General sadly seeks

to obscure—to find the substantial public interests served

by access to the requested records.

21

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be affirmed.

Respectfully submitted,

RicHarp J. OVELMEN

(Counsel of Record)

Joun R. Borco

Baker & McKENZIE

Suite 1600, Barnett Tower

701 Brickell Avenue

Miami, Florida 33131

(305) 789-8900

Laura BESVINICK

Greer, Homer, Cope &

Bonner, P.A.

CenTrust Financial Center

34th Floor

100 Southeast 2nd Street

Miami, Florida 33131

(305) 350-5100