The Freedom of Information Act, Personal Privacy, and Litigants

Abstract

here is a belief that government should be highly transparent so that citizens X may 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 dis cussed here. Capital Collateral Counsel. Capital Collateral Counsel (CCC), an organiza tion 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.2d 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 contempora neous proceedings before the Florida Bar, whose recommendation of only a public reprimand was rejected by the Florida Supreme Court, which instead imposed a one year suspension. Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001). CCC requested that, pursuant to the FOIA, the Department of Justice disclose all records concerning Cox's disciplinary proceedings. The department initially nei ther 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