Amicus Curiae Brief — Los Angeles Police Dept. v. United Reporting Publishing Corp.

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FILED

(\) JUL 20 199

: OE THE CLERK

NO. 98-678

IN THE

Supreme Court of the Anited States

Los ANGELES POLICE DEPARTMENT,

Petitioner,

v.

UNITED REPORTING PUBLISHING CoRrpP.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI! CURIAE OF THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS, AMERICAN COURT AND

COMMERCIAL NEWSPAPERS, INC., AMERICAN SOCIETY OF

NEWSPAPER EDITORS, AND THE NATIONAL NEWSPAPER

ASSOCIATION IN SUPPORT OF RESPONDENT

JANE E. KIRTLEY*

JOHN T. LINCOSKI

Reporters Committee for

Freedom of the Press

1815 N. Fort Myer Dr., Suite 900

Arlington, Virginia 22209

(703) 807-2100

*Counsel of Record for Amici Curiae

(additional counsel for amici listed on inside cover)

OO

ADDITIONAL COUNSEL

FOR AMICI:

SAMUEL P. SPENCER

American Court and Commercial

Newspapers, Inc.

300 Congress St.

Boston, MA 02210

RICHARD M. SCHMIDT

American Society of Newspaper

Editors/ Cohn & Marks

1920 N Street, N.W., Suite 300

Washington D.C. 20036-1622

XENIA M. BOONE

National Newspaper Association

1010 North Glebe Road, Suite 450

Arlington, VA 22201

oR of

]

'

|

BEST AVAILABLE COPY

TABLE OF CONTENTS

i c.seecsesecescccoccececes -i-

TABS OF AUTEOORITIES 2... ccc cccccccccccees -lii-

INTEREST OF AMICI CURIAE ... 2... cc ccccscccess l

UCU REENTE GEE BUD GPUEED cccccccccccccccccccess 4

SUMMARY OF ARGUMENT ...................05. 4

PE SGGGS6G0GS0600000¢00dcccccreccocess 6

I. RIGHTS OF ACCESS TO ARREST RECORDS

BASED ON THE INTENT OR IDENTITY OF THE

REQUESTER RUN CONTRARY TO THE OPEN RE-

CORDS LAWS OF MANY STATES AND THE FED-

ERAL GOVERNMENT. SUCH DISTINCTIONS

SHOULD NOT BE RELEVANT IN DETERMINING

WHETHER ACCESS IS GRANTED. ............. 6

A. California looks to the federal FOI Act for guidance,

but § 6254(f)(3) of the California Public Records Act

bears no resemblance to the federal act’s broad access

DT Pet eebeeeeeceseceessiccccccccece 7

B. Section 6254(f)(3) also radically departs from the

majority of state open records laws............. 10

Il. UNDER THE REVISED STATUTE, IT IS DIFFICULT

T> DETERMINE WHO FALLS WITHIN THE CATE-

GORIES OF ACCEPTABLE USERS AND WHO DOES

EEE ESTEE ETP CTTTTTTTTT TL TTT Tee 14

A. The statute provides little guidance for distinguishing

between the press and commercial users. ....... 16

B. This Court traditionally has been reluctant to define

“press.” Any decision interpreting the statute’s classi-

fication of requesters should broadly interpret what

constitutes a “journalistic purpose.” ........... 18

Ill. THE STATUTE FAILS TO SATISFY CENTRAL HUD-

SON BECAUSE THE STATE’S ASSERTED INTER-

EST OF PROTECTING PRIVACY IS NOT DIRECTLY

AND MATERIALL Y ADVANCED BY § 6254(f)(3). 21

A. Section 6254(f)(3) fails to directly and materially

advance the state’s asserted interests in protecting

—_ MPPPPTTITITITTTIT TTT eT 22

B. Petitioner has failed to recognize the value of Re-

spondent’s communication. .............++++: 26

IV. THE STATUTE UNDERCUTS THE SUBSTAN-

TIAL PUBLIC BENEFIT PROVIDED BY OPEN

RECORDS AND ALLOWS FOR ARBITRARY

GOVERNMENT DISCRIMINATION AGAINST

PTT TTT TIT TTT 27

GUESS ove cccccccceccscccceeccceseocces 30

-iii-

TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island, 134 L.Ed.2d 711

DDE SédeKUdbetedhekeendenseedheoedéaneeoene 23

American Civil Liberties Union of Northern California, Inc.

v. Deukmejian, 32 Cal. 3d 440 (Cal. 1982) .......... 8

Black Panther Party v. Kehoe, 42 Cal. App. 3d 645 (Cal. Ct.

Ss DEE bGbGhdddennhesededectiesceéceceesess 8

Branzburg v. Hayes, 408 U.S. 665 (1972) ............. 18

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n

of N.Y, 447 US. S57 (ISBD) . 0. cc ccccccceces passim

Condon v. Reno, 155 F.3d 453 (4th Cir. 1999), cert. granted,

Reno v. Condon, No. 98-1464, May 17, 1999 ....... 24

Doherty v. Department of Justice, 596 F. Supp. 423

(S.D.N.Y. 1984), aff'd, 775 F.2d 49 (2nd Cir. 1985) .. 8

Doyle v. Department of Justice, 494 F. Supp. 842 (D.D.C.

1980), aff'd, 668 F.2d 1365 (D.C. Cir. 1981), cert. de-

ee ED ceccctescccccpessceves: 8

Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749

SN 6606addb0eSCneddedencdeéenesesenseees< 19

Dunhill v. Director, District of Columbia Dept. of Trans.,

GPG ee is CHEE cc cccnscosccccnccccens 11

Durns v. Bureau of Prisons, 804 F.2d 701 (D.C. Cir. 1986),

vacated and remanded, 486 U.S. 1029 (1988). ....... 9

First National Bank of Boston v. Bellotti, 435 U.S. 765

PPE cbdedencdcvetdeceisncesencesscesccessces 19

Forsham v. Califano, 587 F.2d 1128 (D.C. Cir. 1978) .... 9

Gaudiya Vaishnava Soc’y v. San Francisco, 952 F.2d 1059

(9th Cir. 1990), cert. denied, 504 U.S. 914 (1992) ... 17

Greater New Orleans Broadcasting Assoc. v. United States,

___US.___, No. 98-387 (June 14, 1999) ......... 23

Herbert v. Lando, 441 U.S. 153 (1979) ............... 19

-ivV-

Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir.

1994), cert. denied, 513 U.S. 1044 (1994) .......... 12

Loder v. Municipal Court, 553 P.2d 624 (Cal. 1976), cert.

Sa es SUP EOOEL Webecccsccceseosees 28

Lovell v. Griffin, Ga., 303 U.S. 444 (1938) .......... 6, 18

MacEwan v. Holm, 359 P.2d 413 (Or. 1961) ........... 11

Mans v. Lebanon School Board, 290 A.2d 866 (N.H. 1972)11

Mills v. Alabama, 384 U.S. 214 (1966) ............... 18

National Sec. Archive v. United States Dept. of Defense, 880

F.2d 1381 (D.C. Cir. 1989), reh’g en banc denied, No.

88-5217 (D.C. Cir. Sept. 26, 1989), cert. denied, 494 U.S.

DPE Ancknetdusdeeddosedesienawaceeeos 20

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)... 8,9

North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989) ......... 9

One World One Family Now v. Honolulu, 76 F.3d 1009 (9th

Cir. 1996), cert. denied, 117 S.Ct. 554 (1996)....... 17

O'Rourke v. Dep’t of Justice, 684 F. Supp. 716 (D.D.C.

SED. cengnenennacteesceeesdageucececeneeeucs 8

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ...... 23

Ryan v. Pa. Higher Educ. Assistance, 448 A.2d 669 (Pa.

Us ENG 6tes ceccestncedesdanecenned 11

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1978) .... 25

Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) ........... 20

State Employees Ass'n v. Dep't of Management and Budget,

404 N.W.2d 606 (Mich. 1987) ................... 11

Techniscan v. Passaic Valley Water, 527 A.2d 490 (N.J. App.

ED Senegdonescdsedesecbcuenssecndaoes 11

United Reporting Publishing Corp. v. California Highway

Patrol, 146 F.3d 1133 (9th Cir. 1998) ........... 4,22

United Reporting Publishing Corp. v. Lungren, 946 F.Supp.

PE Eh SED 45606 00dcnenaececdosnnceans 21

United States Department of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749 (1989) ......... 9

-V-

von Bulow v. von Bulow, 811 F.2d 136 (2nd Cir. 1987), cert.

CEE, Ge Gs GREED cccccccccecsccccess 20

Walsh v. Barnes, 541 So.2d 33 (Ala. Civ. App. 1989) ... 11

Statutes

S UBL, GTS Cree FESO oc cc ccccccccccces 8, 10, 20

Pees Oe EE OED cee bsdecccesccécocecens &

Ariz. Rev. Stat. § 28-667 (West 1998)................ 12

Ark. Code Ann. § 25-19-105 (Michie 1998) ........... 14

Cal. Gov’t Code § 6250 (West 1999) ................. 4

Cal. Gov’t Code § 6253.1 (West 1999) ................ 4

Cal. Gov’t Code § 6254(f) (West 1995) ............... 6

Cal. Labor Code § 432.7 (a) (1998) ............. Tre

Cal. Penal Code § 125 (West 1999) ................ oo

Cal. Penal Code § 126 (West 1999) .................. 15

Cal. Penal Code § 672 (West 1999) ..............055. 15

Cal. Gov’t Code § 6254(f)(3).............-0005. passim

Del. Code Ann. tit. 29, § 10001 (Michie 1997) ......... 10

Pe Es SEED ocavcccseuecescccceoces 12

Se aD skcdececdeseecesocevess 12

Ga. Code Ann. § 33-24-53 (Michie 1998) ............. 12

Ga. Code Ann. § 35-1-9 (Michie 1998) .............. 12

Ill. Comp. Stat. ch. 140/1 § 1 (1998) ................. 10

Indiana Code § 5-14-3-4 (Burns 1997) ............... 14

ED vp cnckbescscseceocesoncs 11

Mass. Regs. Code tit. 950 § 32:05 (1997) ............. 13

Md. Code, State Gov’t § 10-616 (1999) .............. 12

Mich. Comp. Laws § 15.231 (1997) .............04.5. 10

Minn. Stat. Ann. § 13.03(3) (1999) ..............04.. 13

Minn. Stat. Ann. § 13.82(2)(j) (1999) .............4.. 13

N.C. Gen. Stat. § 132-1.4(c)(2) (1997) ............4.5. 13

N.C. Gen. Stat. § 132-6(6)(1997) 2.0.0.0 0 eee cece ee. 11

-Vi-

N.H. Rev. Stat. Ann. § 91-A:1 (1990) .............

N.M. Stat. Ann. § 14-2A-1 (Michie 1998) .........

N.Y. Pub. Off. Law § 84 (West 1998) .............

N.Y. Pub. Off. Law § 89 (West 1998) .............

Ohio Rev. Code tit. 1, § 149.43 (1998) ............

Okla. Stat. Ann. tit. 24-A.8(A)(1)(1998). ..........

Okla. Stat. Ann. tit. 51 24-A.5(3) (1998) ...........

Or. Rev. Stat. § 192.001(1)(b) (1999) .............

Ce. TROY. GEER, © PRs CHOON cove ccccsccccecces

R.I. Gen. Laws § 38-2-6 (Michie 1998)............

Texas Bus. & Com. Code Ann. § 35.54 (West 1998) ....

Utah Code Ann. § 63-2-102(1) (Michie 1993) ......

WO, CRED © SPUN CURSED cc cccccccccccceecees

Vt. Stat. Ann. tit. 1, § 316(a) (1997) ..............

Ses I Oe SE EEE ce nd doccsduséevddccéscc

Constitutional Provisions

ON rere rr TTT Terre

ee ED on eee cpanesbaseeees

i Pe o.cecccguacaebansetseae

Fee GH OE BoM Da ccccccccoccsceccevecess

ee , Ceri nu canasdoenedeeencoeses

re re er ee

Court Rules

GE Gs SUED cccccvcesececcesecesoseneees

GR OUP Febcccdedsecdvernceceseensess:

Regulatory Provisions

28 C.F.R. § 16.11 (1998) ....... 0 cece eee ee eee

... 10

... 10

-vii-

Other Authorities

Susan Brown, Police Frequently Hinder Access to Public

Records, \ndianapolis Star, Jan. 31,1999, atl ...... 15

Jo Craven, et al. Deadly Force: An Investigation of D.C.

Police Shootings, Washington Post, Nov. 15-19, 1998 at

| PPOPTTUTTT CTC TTTOTTT TTT TTUCTT TOTTI TTT 27

Jo Craven, Questioning the Cops, Columbia Journalism

Review, March/April 1999, at 26 ...........0005. 27

Geoff Dutton, Government in the Sunshine, Daytona Beach

Sunday News-Journal, Jan. 17, 1999, at 1A. ........ 15

David Fallis, Drunk Driving: A Sobering Look, Tulsa World,

SUR. Tees GMT GIES nc ccccccccccccccecccces 28

Jim Haner, When a Drug Lord is your Landlord, Baltimore

*, § FF YF | PPPTrererir ieee 28

Indira A.R. Lakshmanan, Blacks, Whites Arrested at Same

Rate in S. Boston, Boston Globe, Oct. 30, 1994,

National/Foreign, at 1.0... ccc cece ce cecvcceees 28

Ellen O’Brien & Joanna Massey, Rape Suspects Record

Easily Obtainable, Boston Globe, May 12, 1999, at

id tasakendendnededdsebdesenéobedesedusaen 27

Ore. Att’y Gen. PUBLIC REC. AND MEETINGS MANUAL, §

— S PPPPPTTTTTTITTTT TTT TTT TTT TTT ee 11

George Pawlacyzk, On the Road Again: Illinois’ Hidden DUI

Deals, Belleville News-Democrat, April 25-27, 1999 . 28

Cheryl W. Thompson, Outline for Review of Police Shoot-

ings, Washington Post, Jan. 29,1999 at Bl ......... 27

IN THE

Supreme Court of the United States

No. 98-678

Los ANGELES POLICE DEPARTMENT,

Petitioner,

Vv.

UNITED REPORTING PUBLISHING CORP.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS, AMERICAN COURT AND COM-

MERCIAL NEWSPAPERS, INC., AMERICAN SOCIETY OF

NEWSPAPER EDITORS, AND THE NATIONAL NEWSPAPER

ASSOCIATION IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

Journalists depend on the First Amendment, state open

records acts and the federal Freedom of Information Act (FOI

Act) to obtain information from and about government agen-

cies. The media in turn provide the public with information that

allows public participation in self-government. Journalists also

depend on primary source materials contained in government

2

databases, such as address information, as an indispensable

resource for investigative reporting. Many others, from scholars

to community leaders to ordinary citizens, rely upon open

records laws to gain access to information for myriad uses. In

the case at hand, the government asserts that it may properly

restrict access to address information contained in arrest records

based on the requester’s identity and intended use of the

information. A ruling by this Court that accepts this argument

would dangerously threaten the tradition of access embodied in

the state and federal open records laws.

Amici believe that § 6254(f)(3) of the California Govern-

ment Code is at odds with the majority of federal and state

freedom of information laws. Further, the statute’s language

creates dangerous ambiguities with regard to the classification

of records requesters. Not only does the statute threaten both

the press’ and public’s traditional access to arrest records, but

it also discriminates against commercial users of the informa-

tion. Therefore, because of the threat posed by the statute to

public records access, amici submit this brief in support of the

Respondent, United Reporting Publishing Corporation.’

The Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of working reporters and

editors, dedicated to defending the First Amendment and

freedom of information interests of the news media and the

public. The Reporters Committee has provided representation,

legal guidance, and research in virtually every major press

' Pursuant to Sup. Ct. R. 37.6, counsel for amici authored this brief in

total with no assistance from the parties. Additionally, no individuals or

organizations other than amici made a monetary contribution to the

preparation or submission of this brief. Written consent of all parties to the

filing of the brief amici curiae has been filed with the Clerk pursuant to Sup.

Ct. R. 37.3(a). :

3

freedoms case that has been litigated in the United States since

1970. As a special project, the Reporters Committee sponsors

the Freedom of Information Service Center, which daily advises

reporters On issues of access to government records and

proceedings.

The American Court & Commercial Newspapers (ACCN)

was founded in 1930 to maintain the integrity of public notice

and focuses on issues of concern to legal and business newspa-

pers throughout the country. A member-driven non-profit trade

association, ACCN is comprised of approximately 80 newspa-

pers in cities throughout the United States. Newspapers

belonging to ACCN are committed to reporting those facts and

information essential to readers in their marketplaces and

communities, frequently drawing on public records, including

case filings, real estate transactions, court opinions, and other

public information sources.

The American Society of Newspaper Editors is a nation-

wide, professional organization of more than 850 members who

hold positions as directing editors of daily newspapers through-

out the United States and Canada. The purposes of the Society,

which was founded more than 75 years ago, include the

Ongoing responsibility to improve the manner in which the

journalism profession carries out its responsibi.ities in provid-

ing an unfettered and effective press in the service of the

American people. ASNE is committed to the proposition that,

pursuant to the First Amendment, the press has an obligation to

provide the citizenry of the country with complete and accurate

reports of the affairs of government — be they executive,

legislative, or judicial.

The National Newspaper Association, established in 1885,

is a not-for-profit trade association representing the owners,

publishers and editors of America’s community newspapers.

4

NNA’s mission is to protect, promote, and enhance America’s

community newspapers. Today, NNA’s nearly 4,000 members

make it the largest newspaper association in the United States.

NNA works closely with policy officials to create a legal and

regulatory environment conducive to the growth of community

newspapers. NNA believes that the public’s right of access to

public information should be guaranteed and should not be

restricted based on the intended use of the information.

STATEMENT OF THE CASE

Amici adopt the Respondent’s Statement of the Case.

SUMMARY OF ARGUMENT

California’s Public Records Act sets forth minimum

standards for access to government records’ and declares that

“access to information concerning the conduct of the people’s

business is a fundamental and necessary right of every person

in the state.” Cal. Gov’t Code § 6250 (West 1999). However,

the statute at issue, California Government Code § 6254(f)(3),

conflicts with this provision by expressly barring the release of

arrestee address information to requesters who seek to use the

information for a commercial purpose.

In United Reporting Publishing Corp. v. California

Highway Patrol, 146 F.3d 1133 (9th Cir. 1998), the Ninth

Circuit declared the latter statutory provision to be an unconsti-

tutional restriction on commercial speech. Applying this

Court’s four-part test to determine the constitutionality of

government restrictions on commercial speech as laid down in

A state or local agency may adopt requirements for itself which allow

greater access to records than prescribed by the minimum standards set forth

in the California Public Records Act. Cal. Gov’t Code § 6253.1 (West

1999).

5

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of

N.Y., 447 U.S. 557 (1980) and its progeny, the appellate court

determined that § 6254(f)(3) was unconstitutional because it

failed to “directly and materially” advance the government’s

interest.

California has proffered a number of interests, including the

protection of privacy, that it asserts justify this statute. In fact,

not one of these asserted interests is directly and materially

advanced by § 6254(f)(3). The statute is riddled with exceptions

which undermine the purported interests which the law was

enacted to protect.

The statute raises other substantial concerns as well. It bears

little resemblance to many federal and state open records laws.

Open records laws are not enacted for the benefit of specific

users, but for the benefit of the public. The principle of broad

accessability to public records — regardless of the identity of the

requester, and regardless of intended use — is the norm and not

the exception. California’s statute draws distinctions based on

the intended use of the information, favoring certain requesters,

while barring others because they seek the information for a

disfavored purpose. Such distinctions run contrary to this

nation’s tradition of access.

Even assuming arguendo that the identity of the requester

is relevant, the California statute is so vague that it is impossi-

ble to determine who falls within the categories of acceptable

users and who does not in any consistent manner. For example,

journalists — both traditional and nontraditional — must interpret

a statute which is riddled with ambiguity and backed by

substantial penalties for noncompliance. In particular, ambigu-

ous language renders it difficult to distinguish between the

press and commercial users. When cautious requesters who are

uncertain of their status choose not to request the information,

6

government oversight is diminished.

Although the ambiguity in § 6254(f)(3) stems from the

California Legislature’s failure to provide definitions for key

terms, this Court should refrain from adopting definitions to

clarify the statute. To do so would run contrary to previous

holdings in Lovell v. Griffin, Ga., 303 U.S. 444 (1938) and its

progeny.

This Court should affirm the Ninth Circuit’s ruling. This

will reinforce the appellate court’s correct application of the

Central Hudson test, and also uphold and promote this nation’s

long tradition of access to public records and information.

ARGUMENT

I. RIGHTS OF ACCESS TO ARREST RECORDS

BASED ON THE INTENT OR IDENTITY OF THE

REQUESTER RUN CONTRARY TO THE OPEN

RECORDS LAWS OF MANY STATES AND THE

FEDERAL GOVERNMENT. SUCH DISTINCT-

IONS SHOULD NOT BE RELEVANT IN DETER-

MINING WHETHER ACCESS IS GRANTED.

Prior to July 1, 1996, California Government Code § 6254

provided that “state and local law enforcement agencies shall

make public . . . the full name, current address, and occupation

of every individual arrested by the agency.” Cal. Gov’t Code §

6254(f) (West 1995). This provision made arrestee addresses

available to anyone for any purpose. The Legislature’s 1995

amendment of the Public Records Act, allowed requesters to

obtain the address of any arrested individual only after declar-

ing under penalty of perjury that the request was made for a

“scholarly, journalistic, political, or governmental purpose.”

7

Cal. Gov’t Code § 6254(f)(3) (1998).* Licensed private

investigators also were permitted access for “investigative

purposes.” § 6254(f)(3). The revised statute expressly barred

release to requesters seeking the information for commercial

purposes. Moreover, requesters were prohibited from using

address information “directly or indirectly” to sell a product or

service. Although purporting to preserve the public’s right to

know, § 6254(f)(3) forecloses the access rights of certain

requesters, thus silencing this speech. The only explanation for

this is that the Legislature disliked the requesters’ intended

speech.

A. California looks to the federal FOI Act for guid-

ance, but § 6254(f)(3) of the California Public Re-

cords Act bears no resemblance to the federal act’s

broad access provisions.

The California Public Records Act, as revised, radically

departs from many other state and federal laws which make no

* As amended, Cal. Gov't Code § 6254(f)(3) provides that:

[S}tate and local law enforcement agencies shall make public the

following information .. .

(3) [T]he current address of every individual arrested by an

agency and the current address of the victim of a crime, where

the requester declares under penalty of perjury that the request

was made for a scholarly, journalistic, political, or

governmental purpose, or that the request is made for

investigation purposes by a licensed private investigator . . . ,

except that the address of the victim of [certain specified

crimes] shall remain confidential. Address information

obtained pursuant to this paragraph shall not be used directly

or indirectly to sell a product or service to any individual or

group of individuals and the requester shall execute a

declaration to that effect under penalty of perjury.

distinctions based on a requester’s identity or intended use of

government records. The federal Freedom of Information Act,

to which California looks for guidance when construing the

provisions of its Public Records Act, requires that requesters be

treated uniformly with regard to rights of access.* The FOI Act

dictates whether records are accessible to the public, and does

not delineate which members of the public may have access.

Under federal law, “any person” may request records under

the FOI Act. 5 U.S.C.A. § 552(a)(3) (West 1999). As defined

in § 551(2) of the act, “any person” encompasses an “individ-

ual, association, or public or private organization other than an

agency.” Courts construing this provision have extended it to

include a wide range of diverse parties. Observing that the

language in 5 U.S.C.A. § 551 on its face did not restrict rights

under the FOI Act solely to United States citizens, this Court

and others have noted that Congress intended to provide broad

access to the public at large, and not limit access solely to

certain designated members of the public. See NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 149 (1975); Doherty v. Depart-

ment of Justice, 596 F. Supp. 423, 426 (S.D.N.Y. 1984), aff'd,

775 F.2d 49 (2nd Cir. 1985); O'Rourke v. Department of

Justice, 684 F. Supp. 716, 718 (D.D.C. 1988). The only

apparent exception to this broad grant of access is a judicially

implemented bar preventing fugitives from justice from

“call{ing] on the resources of the court to adjudicate” a claim

under the FOI Act. Doyle v. Department of Justice, 494 F.

* The California Supreme Court has stated that “the judicial

construction and legislative history of the federal act serve to illuminate” the

interpretation of its California counterpart. American Civil Liberties Union

of Northern California, Inc. v. Deukmejian, 32 Cal. 3d 440, 447 (Cal. 1982);

see also Black Panther Party v. Kehoe, 42 Cal. App. 3d 645 (Cal. Ct. App.

1974).

9

Supp. 842, 843 (D.D.C. 1980), aff'd, 668 F.2d 1365, 1365-66

(D.C. Cir. 1981)(refusal to entertain claim unrelated to FOI Act

provisions), cert. denied, 455 U.S. 1022 (1982).

Furthermore, under the FOI Act, requests can be made for

any reason whatsoever. No showing of “relevancy” is required.

United States Dep't of Justice v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749, 771 (1989). This Court has held that

a FOI Act requester’s basic rights of access “are neither

increased nor decreased” by virtue of having a greater interest

in the records than that of an average member of the general

public. NLRB v. Sears, Roebuck & Co., 421 U.S. at 143, n. 10.

Moreover, requesters need not explain or justify their requests,

because the purpose for which records are sought “has no

bearing” upon the merits of the request. /d.°

With specific exception for “first party” requesters,° a

requester’s identity or intended use of the information does not

affect the determination of whether the information requested

is released under the FOI Act. The relevance of identity or

* See also North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir.

1989)(rejecting requester’s identity and intended use as factors for

determining access rights under the FOI Act); Durns v. Bureau of Prisons,

804 F.2d 701, 706 (D.C. Cir. 1986), cert. granted, judgment vacated on

other grounds & remanded, 486 U.S. 1029 (1988); Forsham v. Califano,

587 F.2d 1128, 1134 (D.C. Cir. 1978).

* However, this Court has observed that a requester’s identity can be

significant with regard to the application of a privilege under Exemption 5.

It noted that “there is good reason to differentiate between a governmental

claim of privilege for presentence reports when a third party is making the

request and such a claim when the request is made by the subject of the

report.” United States Dep't of Justice v. Julian, 486 U.S. 1, 14 (1988),

accord Reporters Comm., 489 U.S. at 771 (recognizing single exception to

FOI Act-disclosure rule in case of “first party” requester).

10

intended use is limited to procedural issues such as expedited

access or fee calculation. Unlike the California statute, the FOI

Act allows commercial users to request government informa-

tion on exactly the same terms as any other requester, although

such requests are subject to a separate fee structure from that

assessed for requests from educational or noncommercial

scientific institutions or representatives of the news media.’ In

short, neither a requester’s identity nor purpose substantially

affect access rights under the FOI Act.

B. Section 6254(f)(3) also radically departs from the

majority of state open records laws.

As Congress did with the federal FOI Act, many state

legislatures also have adopted or expressed, as a matter of

policy, the proposition that broad access to records is an

essential component of participatory democracy.* At least seven

states have enshrined a right of access in their state constitu-

75 USC. § 552(ax 4A ii). The designation of a requester as a

commercial user under the FOI Act turns on the use to which the

information will be put, rather than on the identity of the requester. See 28

C.F.R. § 16.11 (1998) (defining commercial use as “a use or purpose that

furthers [the requester’s] commercial, trade, or profit interests.”).

* Delaware's Freedom of Information Act declares that “it is vital that

citizens have easy access to public records in order that the society remain

free and democratic.” Del. Code Ann. tit. 29, §10001 (Michie 1997). Illinois

declares that the right to inspect public records “is necessary to enable the

people to fulfill their duties of discussing public issues fully and freely.” Ill.

Comp. Stat. ch. 140/1 § 1 (1998). See also Mich. Comp. Laws § 15.231

(1997), N.H. Rev. Stat. Ann. § 91-A:1 (1990), N.Y. Pub. Off. Law § 84

(West 1998), Or. Rev. Stat. § 192.001(1)(b) (1999), Va. Code § 2.1-340.1

(1999), Wis. Stat. § 19.31 (1999). and Vt. Stat. Ann. tit. 1, § 316(a) (1997).

11

tions.’

Many states do not distinguish between requesters’ rights of

access based on identity or interest.'°

* Four do so explicitly. They are Louisiana, Montana, New Hampshire,

and North Dakota. See La. CONST. art. XII, § 3, Mont. CONST. art. I, § 9,

N.H. CONST. pt. 1. art. 8, and N.D. Const. art. XI, § 6. The Tennessee

Legislature’s source of authority to enact an open meetings law derives from

its state constitution, which provides: “That the printing presses shall be free

to every person to examine the proceedings of the legislature: or of any

branch or officer of the government, and no law shall ever be made to

restrain the right thereof.” Tenn. CONST. art. 1, § 19. Utah law states that the

legislative intent behind its records law creates a constitutional right of

access. The Government Records Access and Management Act expressly

recognizes “two constitutional rights: (a) the public's right of access to

information concerning the conduct of the public’s business; and (b) the

right to privacy in relation to personal data gathered by governmental

entities.” Utah Code Ann. § 63-2-102(1 (Michie 1993). Vermont recognizes

a constitutional right of access to government meetings only. Vt. CONST. art.

6.

" For example, in lowa, the open records act does not limit access

based on the purpose of the request. lowa Code § 22.2(1)(1998). North

Carolina and Oregon provide that “no person . . . shall be required to

disclose the purpose or motive for the request.” N.C. Gen. Stat. § 132-

6(b)( 1997) and Or. Att'y Gen. PUB. RECORDS AND MEETINGS MANUAL, §

1(A) (1995).

Courts in several jurisdictions have made similar findings. The

Michigan Supreme Court has ruled that the state’s public records act does

not require a person to justify requests for access. See State Employees Ass'n

v. Dep't of Management and Budget, 404 N.W.2d 606 (Mich. 1987). In

New Hampshire, the state supreme court held that “every citizen” is entitled

to access to public records and that a right to the information is not

dependent on a demonstration of need. Mans v. Lebanon School Board, 290

A.2d 866, 867 (N.H. 1972). See also Walsh v. Barnes, 541 So.2d 33, 35

(Ala. Civ. App. 1989); Dunhill v. Director, District of Columbia Dept. of

(continued...)

12

The same tradition of access to arrest records exists in most

states. A minority of states have chosen to deny commercial

users access to arrest records. They are Arizona, California,

Florida, Georgia, Maryland, New York, New Mexico, Rhode

Island, and Texas.'' However, of those state statutes that have

been challenged, only Colorado’s statute has survived constitu-

tional scrutiny.'* See Lanphere & Urbaniak v. Colorado, 21

F.3d 1508 (10th Cir. 1994), cert. denied, 513 U.S. 1044 (1994).

10

(...continued)

Trans., 416 A.2d 244, 246-47 (D.C. 1980), Techniscan v. Passaic Valley

Water Comm'n, 527 A.2d 490, 492 (NJ. App. Div.1987). MacEwan v.

Holm, 359 P.2d 413, 418 (Or. 1961), Ryan v. Pa. High er Educ. Assistance,

448 A.2d 669, 670 (Pa. Commw. Ct. 1982).

'' See Ariz. Rev. Stat. § 28-667 (West 1998); Cal. Gov't Code §

6254(f\( 3) West 1999): Fla. Stat. chs. 119.105, 316.650 (1998), Ga. Code

Ann. §§ 33-24-53, 35-1-9 (Michie 1998); Md. Code Ann., State Gov't § 10-

616 (1999); N.M. Stat. Ann. § 14-2A-1 (Michie 1998); N.Y. Pub. Off. Law

§ 89 (West 1998), R.1. Gen. Laws § 38-2-6 (1997) and Texas Bus. & Com.

Code Ann. § 35.54 (1998).

'? See Cal. Gov't Code § 6254 (Deering 1997), invalidated by United

Reporting Publishing Corp. v. California Hgwy. Patrol, 146 F.3d 1133 (9th

Cir. 1998), aff'g 946 F. Supp. 822 (S.D. Cal. 1996); Fla. Stat. ch. 316.650

(1998), ch. 316.650(11) invalidated by Babkes v. Satz, 944 F. Supp. 909

(S.D. Fla. 1996); Ga. Code Ann. §§ 33-24-53, 35-1-9 (Michie 1998), § 33-

24-53(c) invalidated by Statewide Detective Agency v. Miller, No. 96-

Civ.1033 (WBH), Order (N.D. Ga. Aug. 12, 1998); § 35-1-9 invalidated by

Speer v. Miller, 15 F.3d 1007 (11th Cir. 1994), on remand, 864 F. Supp.

1294 (N.D. Ga. 1994); N.M. Stat. Ann. § 14-2A-1 (Michie 1998),

invalidated by Lavalle v. Udall, Civ. A. No. 94-0404-M, Order, (D.N.M.

Feb. 16, 1996); and Tex. Bus. & Com. Code Ann. § 35.54 (West 1998),

invalidated by /nnovative Database Sys. v. Morales, 990 F.2d 217 (Sth Cir.

1993). The Arizona, Maryland, New York, and Rhode Island statutes have

not yet been challenged.

~

13

In Lanphere, the Tenth Circuit upheld a Colorado statute

prohibiting access to criminal justice records by those who

intended to use them-for commercial purposes, finding that the

statute did not unconstitutionally restrict commercial speech.

Even so, the Tenth Circuit’s decision was criticized by dissent-

ing Judge Aldisert, who wrote:

[T]he issue is not whether Colorado is obliged to

provide a client base to [a law firm] or required to

furnish a source of news to El Paso County News.

Rather, the question is to what extent may it deny

public access, irrespective of the motivation for access,

so long as the motivation is not for an unlawful pur-

pose. In my view, a desire for pecuniary gain in the

world’s strongest capitalist society operating under a

democratic political system has not yet been declared

unlawful, offensive, or unconstitutional.”

Id. at 1519-20 (Aldisert, J. dissenting).

Although a handful of states deny commercial users access

to arrest records, the remainder do not. More typical are the

regulations of the Massachusetts’ Public Records Supervisor,

which prohibit a records custodian from inquiring into why a

requester seeks access and which provide that the access to

government records for commercial purposes is perfectly

proper. See Mass. Regs. Code tit. 950 §§ 32:05(1),(5)(1997).

Similarly, North Carolina and Oregon laws require arrestee

address records to be disclosed. See Or. Rev. Stat. § 192.501

(1998) and N.C. Gen. Stat. § 132-1.4(c)(2) (1997). Neither state

bars access for commercial users of those records. Some states

charge commercial users higher fees that “reasonably reflect”

the cost of supplying the records, thus addressing the cost

concerns that underlie the drafting of § 6254(f)(3). See Minn.

Stat. Ann. § 13.03(3) (1999)(reasonable fees for information

14

with commercial value may reflect development costs); Minn.

Stat. Ann. § 13.82(2)(j) (West 1999); Okla. Stat. Ann. tit. 51

24-A.5(3), 24-A.8(A)(1)(1998).

Some laws do not explicitly indicate whether access to

arrestee address information for commercial purposes is

permitted. Some, like Indiana's, state that designated lists of

names and addresses “may not be disclosed by public agencies

to commercial entities for commercial purposes.” Indiana Code

§ 5-14-3-4 (Burns 1997). However, arrestee address informa-

tion is not among the categories whose disclosure is barred. /d.

See also Ark. Code Ann. § 25-19-105 et seg. (Michie 1998),

Ohio Rev. Code tit. 1, § 149.43(B),(E) (1998).

California's statute is clearly in the minority, demonstrating

that the state’s decision to bar access to arrest records for

certain purposes is an anomaly.

Il. UNDER THE REVISED STATUTE, IT IS DIFFI-

CULT TO DETERMINE WHO FALLS WITHIN

THE CATEGORIES OF ACCEPTABLE USERS

AND WHO DOES NOT.

Section 6254(f)(3), as amended, permits access to arrestee

information for “scholarly, journalistic, political, or governmen-

tal purposes,” but fails to define those terms. It also fails to

define what constitutes “indirectly” selling a product or service.

These ambiguities raise significant questions of statutory

interpretation and pose a threat to access on two points.

First, itis unclear whether records custodians will recognize

that a nontraditional requester — who may not be as immedi-

ately identifiable as a beat reporter from a local newspaper or

television station — is motivated by a “journalistic” purpose.

Records custodians and law enforcement officials, without

guidelines to clearly demarcate the boundaries of the “proper”

15

purposes set forth in the statute, could easily discriminate

against requesters based on their subjective assessment of the

requester’s purpose. As surveys of records law compliance have

repeatedly indicated, government officials can, and do, deny

requesters records that are clearly public.'’ Asking records

custodians to apply unclear laws can only make a bad situation

worse.

Second, and perhaps more importantly, in the absence of

guidance, requesters are left to determine for themselves

whether their purpose is permissible. For many requesters, this

will be intimidating, because a wrong guess renders them

vulnerable to criminal sanctions. Given the substantial penalties

that accompany violations of the act, cautious requesters who

are uncertain of their status will choose not to request the

information at all, thus depriving themselves, and ultimately,

the public, of this important information.

Section 6254(f)(3) requires requesters to declare under

penalty of perjury that they are seeking records for a permissi-

ble use. However, the use to which the records will be put may

not always be clear at the time of the request. Requesters who

may not fall clearly into one category or another must surmise

whether the statute will be held to apply to them. Those

unwilling or unable to satisfy themselves that the statute will

protect them will be tempted to forego access to the records,

'* See generally Susan Brown, Police Frequently Hinder Access to

Public Records, \ndianapolis Star, Jan. 31, 1999, at 1.; Ross Cheit, et al.,

Open or Shut? Access to Public Information in Rhode Island's Cities and

Towns, Brown University, April 28, 1999; Geoff Dutton, Government in the

Sunshine, Daytona Beach Sunday News-Journal, Jan. 17, 1999, at 1A.

16

rather than risk prosecution for perjury.'*

A. The statute provides little guidance for

distinguishing between the press and commercial

users.

With the rise of nontraditional journalistic outlets such as

the Internet, it is increasingly difficult for a requester or records

custodian to determine whether the contemplated use of the

records constitutes a “journalistic purpose” under the statute. In

both theory and practice, it is unclear whether the Legislature

intends the term to apply only to the traditional press, or if the

term encompasses nontraditional media as well."

In cases where the requester and the end user of arrestee

address information are not the same entity, the line between

permissible and impermissible use blurs further. The transfer of

information {rom the government to end users can often involve

many interin parties. For example, journalists frequently rely

on information brokers as sources for information that is too

time-consuming tc gather or requires research skills which they

lack. Information services also can analyze and digest large

quantities of government data, often revealing trends or patterns

that may not be visible in a mass of raw data. These brokers

4 Under the California Penal Code, perjury is punishable by

imprisonment in a state prison for two, three or four years and by fines. Cal.

Penal Code §§ 126, 672 (West 1999). Furthermore, under California's

perjury law, the requester is admonished that “an unqualified statement of

that which one does not know to be true is equivalent to a statement of that

which one knows to be false.” Cal. Penal Code § 125 (West 1999).

'S It is also unclear whether the statute prohibits members of the creative

community, such as film scriptwriters or authors of fiction, from obtaining

arrestee address records for purposes such as contacting suspects to gather

anecdotal information or other background to develop fictional works.

eS Oe ee cee,

17

typically are engaged in for-profit activity. As enacted, §

6254(f)(3) makes no provision whatever for situations where a

commercial information broker is acting at the behest of a

newspaper or scholar. The commercial broker must guess

whether it may obtain such records legally by effectively

adopting its client’s intent as its own, or whether it is barred

from seeking the information because it does so as part of a for-

profit transaction.

The statute also fails to account for the fact that requester

may wish to make multiple uses of the information. For

example, it is permissible for a scholar or journalist to seek

arrestee address information in order to conduct research on

areas where suspects live, and publish the information whole-

sale. A separate party may then make commercial use of the

scholar’s published information, apparently without triggering

the punitive provisions of the statute. Yet, a single requester

could not seek to use the information for both commercial and

noncommercial uses without running afoul of § 6254(f)(3).

Although not expressly recognized by the court below,

amici contend that United Reporting Publishing Corporation

engages in noncommercial speech.'® Using arrestee address

'* The Ninth Circuit has recognized that mixed-speech/commercial

activities can implicate the First Amendment. In Gaudiya Vaishnava

Society, the Ninth Circuit held that where the sale of merchandise bearing

political, religious, philosophical, or ideological messages “is inextricably

intertwined,” with other forms of protected expression (like distributing

literature and proselytizing) “the entirety must be classified as

noncommercial and we must apply the test for fully protected speech.”

Gaudiya Vaishnava Soc’y v. San Francisco, 952 F.2d 1059, 1064 (9th Cir.

1990), cert. denied, 504 U.S. 914 (1992). See also One World One Family

Now v. Honolulu, 76 F.3d 1009 (9th Cir. 1996)(restriction upheld on

different grounds)(Pregerson, J. dissenting), cert. denied, 117 S.Ct. 554

(continued...)

18

records, Respondent publishes its newsletter, the JAJLMAIL

Register. It then distributes the newsletter to both its clients and

arrestees. Respondent's clients use the information for many

purposes, including sending free literature to arrestees offering

such services as legal consultation and substance abuse counsel-

ing. The JA// MAIL Register also includes articles on these

same topics. If § 6254(f)(3) is upheld, United Reporting

Publishing Corporation will be barred from obtaining informa-

tion even though it is being used for a permissible purpose, as

well as one that could be classified as commercial.

B. This Court traditionally has been reluctant to

define “press.” Any decision interpreting the

statute’s classification of requesters should broad-

ly interpret what constitutes a “journalistic pur-

pose.”

If this Court chooses to address the ambiguities in the

statute, it should be mindful of its previous interpretations of

“the press.” Historically, this Court has been reluctant to define

who is and who is not “the press.”

Sixty-one years ago, this Court noted in Lovell v. Griffin,

Ga., that "the liberty of the press is not confined to newspapers

and periodicals,” noting that “it necessarily embraces” such

formats as pamphlets and leaflets. 303 U.S. 444, 452 (1938). In

striking down an ordinance banning the distribution of “circu-

lars, handbooks, advertising, or literature of any kind” as

facially unconstitutional, Chief Justice Hughes stated that “the

press in its [historic] connotation comprehends every sort of

publication which affords a vehicle of information and

'"(...continued)

(1996). Despite these decisions, the courts below decided the issue on

commercial speech grounds and not under a higher level of scrutiny.

19

opinion.” Jd. at 452. Similarly, in Mills v. Alabama, Justice

Black wrote that “the Constitution specifically selected the

press, which includes not only newspapers, books, and maga-

zines, but also humble leaflets and circulars, to play an impor-

tant role in the discussion of public affairs.” 384 U.S. 214, 219

(1966). This broad construction was further developed in dicta

in Branzburg v. Hayes, noting the existence of an “informative

function” by the press. 408 U.S. 665, 703-04 (1972). Writing

for the Court, Justice White noted that:

[L]iberty of the press is the right of the lonely pamphle-

teer who uses carbon paper or a mimeograph just as

much as of the large metropolitan publisher who utilizes

the latest photocomposition methods. Freedom of the

press is a “fundamental personal right” which “is not

confined to newspapers and periodicals .. . . The

informative function asserted by representatives of the

organized press in the present case is also performed by

lecturers, political pollsters, novelists, academic re-

searchers, and dramatists.”

Branzburg, 408 U.S. at 703-705 (internal citation omitted)."’

Justice White again recognized the “informative function”

language in Herbert v. Lando, noting that the press and

broadcast media have played “a dominant and essential role” in

serving that end. 441 U.S. 153, 189 (1979). See also Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 767

n. 4(1985)(White, J. concurring). Similarly, in his concurrence

in First National Bank of Boston v. Bellotti, Chief Justice

'’ In its footnote for the preceding paragraph, the Court warned that “by

affording a privilege to some organs of communication but not to others,

courts would inevitably be discriminating on the basis of content.”

Branzburg, 408 U.S. at 705, n. 40.

20

Burger noted the Court's broad approach to the scope of Press

Clause protection, and citing Branzburg and Lovell, observed

that the “informative function” is performed by more than just

the “traditional” media. 435 U.S. 765, 801-02 (1978) (Burger,

C.J., cencurring). Lower courts have also followed suit.""

In the context of fee waivers and other benefits, the federal

FOI Act also reflects this Court’s focus on whether the party in

question performs an informative function. The statute provides

that a “representative of the news media” is part of a category

of requesters entitled to certain automatic fee benefits,"” and the

term refers to any person actively gathering information of

current interest to the public for an entity that is organized and

operated to publish or broadcast news to the general public.’ At

least one federal circuit court has extended this definition,

holding that a private research archive is a “representative of

the news media” within the meaning of the statute because its

intent to gather, edit, and disseminate the information to the

'* In those cases where the federal circuits have defined “press” for such

purposes as determining to whom journalists’ privileges apply under state

shield law, they have followed this Court's lead. In von Bulow v. von Bulow,

the Seccend Circuit Court of Appeals held that in order to invoke the

journalist's shicld laws, the person seeking to invoke the privilege must

intend to use material — sought, gathered, or received — to disseminate

information to the public and such intent must exist at the inception of the

newsgathering process. 811 F.2d 136 (2nd Cir. 1987), cert. denied, 481

U.S. 1015 (1987). Von Bulow was later adopted by the Ninth Circuit in

Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Considering a similar

issue, the Ninth Circuit adopted the Second Circuit's language and stated

that “the critical question . . . is whether [the journalist] is gathering news

for dissemination to the public.” Jd. at 1293.

5 U.S.C.A. § 552(ay(4)(ii)(H).

” See 28 C.F.R. § 16.11 (b)(6) (1998).

es ee

21

public was akin to that of the other news media sources.

National Sec. Archive v. United States Dept. of Defense, 880

F.2d 1381 (D.C. Cir. 1989), reh’g en banc denied, No. 88-5217

(D.C. Cir. Sept. 26, 1989), cert. denied, 494 U.S. 1029 (1990).

In other words, like this Court, the D.C. Circuit looked to

purpose, rather than affiliation, in deciding whether to uphold

the grant of the fee benefit.

If this Court elects to define or clarify § 6254(f)(3)’s

“scholarly, journalistic, political, or governmental purposes,” it

should do so broadly, with an eye toward providing maximum

access, mindful of the broad construction it has given to

definitions of “the press.”

Iii. THE STATUTE FAILS TO SATISFY CENTRAL

HUDSON BECAUSE THE STATE’S ASSERTED

INTEREST OF PROTECTING PRIVACY IS

NOT DIRECTLY AND MATERIALLY AD-

VANCED BY § 6254(f)(3).

The California Legislature enacted § 6254(f)(3) for two

express purposes: to reduce the expense borne by law enforce-

ment agencies in responding to requests, and to protect the

privacy of California citizens.*' However, the district court

found that the statute did not advance the state’s interest in

protecting the privacy of its residents, because it permitted

*' The district court noted the statute's legislative history. To wit:

From a law enforcement perspective, the processing of requests

puts a tremendous strain on already scarcely allocated time and

resources. From a consumer perspective, this is an invasion of

privacy. While these records are justifiably public in many ways,

the unsolicited direct mail advertisements are unwarranted.

Legislative History (June 4, 1996 letter), p.4., quoted in United Reporting

Publishing Corp. v. Lungren, 946 F. Supp. 822, 826 (S.D. Cal.) (1996).

22

“much more persuasive invasions of privacy” such as allowing

the information to be published in a newspaper or to be

obtained by the arrestee’s personal enemies or employers.

United Reporting Publishing Corp., 946 F.Supp. 822, at 827-

828.

On appeal, the government has revamped its asserted

interests, limiting it to protecting the privacy of arrestees and

victims and preventing the creation of “unreliable criminal

history information banks.” The Ninth Circuit rejected both of

these contentions, holding that the many exceptions to the

statute undermined the statute's stated intent to protect privacy

and rendered it unconstitutional. United Reporting Publishing

Corp. v. Lungren, 146 F.3d 1133, 1140 (9th Cir. 1998). It also

found that the state presented no evidence that unreliable

criminal information banks would be created. It concluded that

the asserted harm was “no more than speculation and conjecture

and was insufficient to sustain a commercial speech restric-

tion.” /d. at 1138-39.

Petitioner argues before the Court that the California statute

advances the state's interest in protecting the privacy of

arrestees and victims “by eliminating the greatest potential for

dissemination of their home addresses.” Pet. Brief at 31.

Further, it claims that the statute reduces the level of solicitation

of arrestees and prevents employers and other commercial

entities from using the arrestees’ status against them. /d. at 32.

Finally, it claims a dual interest in both protecting privacy and

keeping the public informed. None of these interests is ad-

vanced by the statute.

A. Section 6254(f)(3) fails to directly and materially

advance the state’s asserted interests in protecting

privacy.

Assuming for the sake of argument that Respondent is

23

engaged in commercial speech, § 6254(f)(3) cannot satisfy this

Court’s Central Hudson requirements.” This litigation has

focused on the third of the four factors set forth in Central

Hudson, which requires any restriction on commercial speech

to directly and materially advance the asserted governmental

interest.** This Court has held that a statute cannot materially

advance the government's interest when exceptions to the

regulation serve to undermine that interest. See Rubin v. Coors

Brewing Co., 514 U.S. 476, 489 (1995). See also Greater New

Orleans Broadcasting Assoc. v. United States, __ U.S. ___,

No. 98-387 (June 14, 1999).

Even if the state had a substantial interest in protecting an

arrestee’s privacy right in his address information, the statute

does not directly and materially advance this interest.** The

2 As this Court cautioned in 44 Liquormart, the need to show that a

regulation will advance a substantial interest “directly” and to “a material

degree” is particularly compelling where the “drastic nature of its chosen

means” is the “wholesale suppression of truthful, nonmisicading

information.” 44 Liquormart, Inc. v. Rhode Island, 134 L.Ed.2d 711, 728

(1996).

» The test set forth in Central Hudson requires that:

[1] At the outset, we must determine whether the expression is

protected by the First Amendment. For commercial speech to come

within that provision, it at least must concern lawful activity and

not be misleading. [2] Next we ask whether the asserted

government interest is substantial. [3] If both inquiries yield

positive answers, we must determine whether the regulation

directly advances the governmental interest asserted, and [4]

whether it is not more extensive than is necessary to serve that

interest. Central Hudson, 447 U.S. at 566.

* It is unclear whether a constitutional right to privacy extends to

address records. In a case soon to be before this Court, the Fourth Circuit

(continued...)

24

many exceptions to the statute are fatal to the state’s asserted

interests because they provide for the widespread dissemination

of information that the state otherwise seeks to restrict. Peti-

tioner argues that the statute advances the state’s interest in

protecting the privacy of arrestees and victims “by eliminating

the greatest potential for dissemination of their home ad-

dresses.” Pet. Brief at 31. In fact, the statute allows a wide

range of requesters to disseminate arrestee address information.

Address information may be published in every newspaper and

broadcast across the state by television and radio stations.

Scholars are free to publish address information in scholarly

journals. Political figures and government agencies may contact

arrestees or publish the information on the Internet where it

may be seen worldwide. Licensed private investigators, perhaps

hired by intimates of the arrestee, potential employers or a

neighborhood watch, may freely seek and disseminate address

information. In short, the statute allows for the dissemination of

the information to almost every conceivable sphere of the

arrestee’s life, including the arrestee’s family, home, and

4. continued)

Court of Appeals stated no constitutional right of privacy exists with respect

to information contained in driver's licensing and automobile registration

records — including addresses. Condon v. Reno, 155 F.3d 453 (4th Cir.

1999). certiorari granted, Reno v. Condon, No. 98-1464, May 17, 1999.

Although the Condon panel invalidated the Driver's Privacy Protection Act

on federalism grounds, the majority expressly stated that neither the

Supreme Court nor any federal appellate court has ever found that there is

a right to privacy in the information contained in driver's records.

The Condon court was persuaded that “the same type of information

is available from numerous sources. ‘As a result, an individual does not

have a reasonable expectation that the information is confidential."”

Condon, 155 F.3d at 464-65. “In sum, the information found in motor

vehicle records is not the sort of information to which individuals have a

reasonable expectation of privacy.” /d.

25

workplace. It is hard to see how Petitioner can base its restric-

tions on access on the claim that “total public disclosure” will

follow from Respondent’s publication, when existing excep-

tions to the statute allow the same result.

Petitioner also asserts that the statute discourages solicita-

tion of arrestees and victims, thereby preventing them from

feeling a sense of personal violation arising from knowledge

that address information about them is on commercial mailing

lists. Pet. Brief at 31. But Petitioner is confusing access with

subsequent conduct. As the Petitioner notes, commercial

publishing services are free to use alternative means of gather-

ing the same information to achieve the same result it alleges

the statute prevents. Commercial publishers may freely search

newspapers or the airwaves to compile the same information.

They may also comb the Internet or scholarly publications. In

the end, the statute does not prevent commercial mailing list

services from using arrestee address records. It simply makes

gathering the information more cumbersome.

Arguments that the statute will prevent employers and other

commercial entities from using the information against

arrestees are equally specious. Petitioner asserts that §

6254(f)(3) serves the state’s interest in protecting arrestees from

discrimination. Pet. Brief at 32. However, the statute allows

employers to retrieve the same information from the press, the

** Petitioner misinterprets the nature of the arrestee’s privacy interest.

The invasion of privacy occurs upon the uncovering of the information and

not upon the receipt of further information generated as a result of the

invasion. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 476 (1978). A

Statute barring the dissemination of information for some uses while

allowing its release for others simply cannot serve a privacy interest.

26

Internet, or a private investigator.”

B. Petitioner has failed to recognize the value of

Respondent’s communication.

Finally, Petitioner claims that the statute serves the dual

purpose of both protecting privacy and keeping the puhiic

informed. As the courts below have noted, the statute does not

advance this purpose because it allows the release of the

information in many different ways. Petitioner’s assertion

accords no worth to United Reporting Publishing’s communica-

tion, erroneously assuming that commercial publishing services

and newsletters play no role in informing the public. Those who

have received this information from Respondent and its

colleagues are testimony to the contrary.

As noted supra, pamphlets and newsletters have long

played an important role in providing important news and

information to the public. These publications have also been

afforded First Amendment protection under the Press Clause.

Because they often target a specific audience, newsletters and

pamphlets are a highly effective means of communicating

timely information to an audience. These publications often

report on areas of specific public concern in a more in-depth

manner than other mass media. Such publications may even

accomplish the goal of informing the public more effectively

than other “traditional” media outlets such as daily newspapers

or radio and television broadcasts which may not report the

information in as detailed a manner. If § 6254(f)(3) is upheld,

the public will be left to rely on other, less-specialized media

outlets to obtain arrestee information, and the public’s need for

2” Petitioner apparently assumes, contrary to the presumption of

innocence afforded by our Constitution, that a presumption of guilt attaches

upon arrest.

27

information may go unmet.

IV. THE STATUTE UNDERCUTS THE SUBSTAN-

TIAL PUBLIC BENEFIT PROVIDED BY OPEN

RECORDS AND ALLOWS FOR ARBITRARY

GOVERNMENT DISCRIMINATION AGAINST

REQUESTERS.

Journalists have long used open records laws to reveal

information about law enforcement activities. A 1999 Pulitzer-

prize winning Washington Post series examining disproportion-

ately high numbers of shootings by the city’s police officers

prompted the U.S. Department of Justice to review dozens of

fatal shootings by city police, and spurred the police department

to dramatically improve training requirements. The series made

extensive use of such sources as police records, FBI homicide

records, and records of firearm discharges by D.C. officers.?’

Following the alleged rape of a visiting businesswoman by

an airport shuttle van driver, the Boston Globe obtained

information about two previous arrests on the suspect's record

from the state’s public safety office. When the Globe con-

fronted the suspect’s employer, it admitted it had not checked

the suspect’s arrest record, claiming it did not believe it had the

right to gain access to the records. The shuttle company then

promised to change its policy and check the criminal back-

grounds of all its drivers in the future.** Several years earlier,

*” See Jo Craven et al. Deadly Force: An Investigation of D.C. Police

Shootings, Washington Post, Nov. 15-19, 1998, at Al; Cheryl W.

Thompson, Outline for Review of Police Shootings, Washington Post, Jan.

29, 1999, at B1; and Jo Craven, Questioning the Cops, Columbia Journalism

Review, March/April 1999, at 26.

* Ellen O'Brien & Joanna Massey, Rape Suspects Record Easily

(continued...)

28

the same newspaper used arrest records to demonstrate that,

despite the prevailing local belief, blacks were arrested no more

frequently than their white neighbors in South Boston.”

Other newspapers have investigated whether drunk drivers

go unpunished or whether drug lords block urban renewal

efforts in an inner-city neighborhood.” In short, newspapers,

both large and small, use arrest records and other criminal

justice records to serve the public interest.

Not only journalists and their readers benefit from public

access to arrest records. The California courts have long

recognized that it is in the public’s interest to identify adults

charged with crimes and to put other citizens on notice of those

arrests. Loder v. Municipal Court, 553 P.2d 624, 628 (Cal.

1976), cert. denied, 429 U.S. 1109 (1977). Not only does access

encourage transparency in the criminal justice system, it

promotes the system’s efficiency as well. Publication of

arrestee address records can prevent cases of mistaken identity

by encouraging those who can provide potential alibis to come

forward. Scholars may use the information to map tnose areas

where arrestees live to determine whether there are links

between physical location and arrest rates. Through the use of -

mailing addresses, publishers such as Respondent may provide

**(...continued)

Obtainable, Boston Globe, May 12, 1999, at Al.

** Indira A.R. Lakshmanan, Blacks, Whites Arrested at Same Rate in S.

Boston, Boston Globe, Oct. 30, 1994, National/Foreign, at 1.

“ Jim Haner, When a Drug Lord is your Landlord, Baltimore Sun, Feb.

14, 1999, at Al; David Fallis, Drunk Driving: A Sobering Look, Tulsa

World, Jan. 1999, special reprint; and George Pawlacyzk, On the Road

Again: Illinois’ Hidden DUI Deals, Belleville News-Democrat, April 25-27,

1999 (on file with counsel).

ee a ee es Se DORN re ee et = arms

29

arrested persons with information vital to protecting their rights,

including their constitutional right to counsel.

Much will be lost if this Court upholds § 6254(f)(3). The

Statute favors some categories of requesters and discriminates

against others. By focusing on a requester’s intended use of the

information — for a scholarly, journalistic, political, or govern-

mental purpose, or for investigation purposes by a licensed

private investigator — it creates categories of access rights,

discriminating between those engaged in speech it approves of

and those whose speech it dislikes.

Although the statutory language focuses on the requester’s

intended use of the information, it restricts speech based on the

way it is packaged and disseminated. See footnote 17, supra.

Petitioner claims that no alternative to § 6254(f)(3) exists and

that, if the statute is declared unconstitutional, legislatures will

move to block access to all arrest records. However, alternatives

to closure do exist."' The Legislature could have considered

targeting the conduct it disliked, and not the speech leading to

it. If the Legislature fears discrimination based on the use of

arrest records, it should ban this type of discrimination.”

California has not chosen to do so. Instead, it banned access to

*' Although the Legislature enacted the statute partly out of concern for

the expense of providing records, it could have met its goal of conserving

funds by following the path chosen by other states which provide for a

separate pricing structure, charging commercial requesters a fee reasonably

calculated to recoup the additional costs (if any) associated with their

requests.

* At present, California law prohibits employers from asking job

applicants to disclose information about arrests or detentions which did not

result in conviction. Employers also are prohibited from using such

information with regard to hiring, promotion, termination or participation

in apprenticeship programs. Cal. Labor Code § 432.7 (a) (1998).

30

records by those who would use them for certain disfavored

purposes. Upholding § 6254(f)(3) would signal to legislatures

across the land that they may restrict access to public records

based on a requester’s intended use of the information. If this

ban is sustained, one is left to wonder what restrictions on

access to long-public records will follow.

CONCLUSION

Section 6254(f)(3) of the California Government Code is an

aberration. It stands apart from similar state and federal laws

and threatens the press’ and public’s traditional access to arrest

records. Its application is unclear and its purported purpose

undermined by exceptions. If allowed to stand, the statute will

deprive the public of important information by discriminating

against requesters whose purpose in seeking access, although

legal, is disfavored. The solution to the “problem” perceived

here is not to close off access to arrest records. It is to address

and regulate the conduct which follows from further dissemina-

tion of already public information.

Respectfully submitted,

Jane E. Kirtley*

John T. Lincoski

Reporters Committee for

Freedom of the Press

1815 N. Fort Myer Dr.,

Suite 900

Arlington, Virginia 22209

(703) 807-2100

*Counsel of Record for Amici Curiae

July 20, 1999

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