The Freedom of Information Act, Personal Privacy, and Litigants

By Lochner, Todd | Justice System Journal, May 1, 2005 | Go to article overview

The Freedom of Information Act, Personal Privacy, and Litigants


Lochner, Todd, Justice System Journal


There is a belief that government should be highly transparent so that citizens nay monitor its actions, including those of government officials who appear in court. While this belief has been enshrined in the Freedom of Information Act (FOIA) and the common-law right of access to judicial records in civil suits, it has not been absolute. One exception to a presumption of disclosure relates to personal privacy: under what circumstances may personal information about those involved in litigation be withheld from public view? Two cases bearing on this question are discussed here.

Capital Collateral Counsel. Capital Collateral Counsel (CCC), an organization representing death-row inmate Michael Mordent, sought to compel the Department of Justice to release information concerning disciplinary proceedings conducted against Assistant U.S. Attorney Karen Cox in connection with a previous case. In that case, United States v. Sterba, 22 F.Supp.Zd 1333 (M.D.Fla. 1998), it was discovered that, to secure a conviction, Cox purposely misrepresented the identity of a witness. Cox was investigated by the department's Office of Professional Responsibility, which reported its findings to James Santelle, deputy director of the Executive Office for United States Attorneys. After a final meeting with Cox, Santelle imposed on her a two-week suspension without pay. Cox faced contemporaneous proceedings before the Florida Bar, whose recommendation of only a public reprimand was rejected by the Florida Supreme Court, which instead imposed a oneyear suspension. Florida Bar v. Cox, 794 So.Zd 1278 (FIa. 2001).

CCC requested that, pursuant to the FOIA, the Department of Justice disclose all records concerning Cox's disciplinary proceedings. The department initially neither confirmed nor denied existence of the requested documents but, after CCC filed a complaint in federal district court, agreed to release over 1,000 pages of material while refusing to divulge five requested documents. The district court reviewed those five documents in camera and held that two documents must be turned over although names of third parties in one could be redacted; the court also awarded attorney's fees to CCC. The department appealed.

The Eleventh Circuit reversed the district court's decision to compel release of the documents and remanded the case so that the district court could reconsider the fee award. Office of the Capital Collateral Counsel v. Department of Justice, 331 F.3d 799 (11th Cir. 2003). For the court, Judge Black began by noting that FOIA Exemption Six, 5 U.S.C. §552(b)(6), allows government officials to refuse to divulge "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" and that the Supreme Court had held that this exemption requires a court "to 'balance the individual's right of privacy against the basic policy of opening agency action to the light of public scrutiny,"' although "the 'peculiar interest of the requesting party is irrelevant to evaluating this general public interest.'" 331 F.3d, at 803.

Judge Black found that substantial information was already available to the publie concerning Cox's misconduct and sanction in the published Sterba and Florida Ear cases and in the Report of the Referee to the Supreme Court of Florida. Indeed, the information contained in the documents, which were the subject of the appeal, was simply Cox's personal reflection on her misdeeds and how those misdeeds affected her emotional state and family life. Because her status as assistant U.S. attorney "does not enervate her privacy interest," and because these personal reflections "are not relevant to the public interest in knowing what the government is doing," Judge Black ruled that the documents fell within Exemption Six. Capital Collateral Counsel, 331 F.3d, at 803-04; the nature of the information concerning third parties in those documents provided an independent basis for their exemption. …

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