Case Detail
| Case Title | LARDNER v. DEPARTMENT OF JUSTICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2008cv01398 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2008-08-12 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2009-07-31 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Colleen Kollar-Kotelly | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | GEORGE LARDNER | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | DEPARTMENT OF JUSTICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal | D.C. Circuit 09-5337 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [19] FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Office of the Pardon Attorney must disclose the identities of individuals who were denied clemency or commutation of their sentence by former President George W. Bush. In so doing, Kollar-Kotelly rejected journalist George Lardner's claim that the government was foreclosed by the doctrine of collateral estoppel from even arguing that the records were exempt since Judge John Bates had ruled in favor of Lardner in 2005 when he requested quite similar records. Nevertheless, after appraising OPA's claims that the records were protected by Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records), Kollar-Kotelly concluded that Exemption 6 did not protect the records, and even further, that the records did not qualify as law enforcement records in the first place. Lardner, who has been researching a book on presidential pardons, requested information about the identities of those whose petitions had been denied by Bush. OPA declined to disclose any records, citing both Exemption 6 and 7(C). Lardner then filed suit. Lardner has sued the Justice Department before for similar records and he initially contended that Bates' 2005 ruling in his favor prevented Justice from litigating the same position again. Kollar-Kotelly rejected Lardner's claim because, although the two parties were the same, the actual records at issue in both suits were not identical. The 2005 suit involved "letters of advice" from the Attorney General to the President concerning whether to grant or deny requests for pardons for the period 1960 to 1989. Kollar-Kotelly noted that "the FOIA request at issue here, and the materials responsive to that request, thus differ materially from the FOIA request and responsive materials at issue in the prior action. Unlike in Lardner I, in which Plaintiff's request for disclosure of the identities of unsuccessful applicants was cabined to only those 141 names that happened to appear in a select number of pardon files specifically requested by the Plaintiff and dating from President Reagan's administration or earlier, Plaintiff's current request seeks disclosure of lists retained by OPA identifying the more than 7,000 applicants who were recently denied clemency by President Bush." She observed that "in particular, although both actions broadly confront the propriety of withholding the identities of unsuccessful clemency applicants, the circumstances in which the withholdings were made vary substantially between the two matters. Moreover, Plaintiff seeks to apply the doctrine to litigation of a legal issue, not a factual one, and in such circumstances, the D.C. Circuit has counseled that there is 'more room for a second look when the issue is one of law than when a fact question is at stake.'" The agency argued that disclosure would constitute a double stigma for the individuals because it would not only identify them as having been convicted, but also of having been deemed unworthy of a pardon or commutation. Kollar-Kotelly disagreed, noting instead that "Plaintiff's FOIA request seeks disclosure only of the fact that an individual has applied for and been denied clemency. That is, Plaintiff does not seek disclosure of any substantive, personal information located in the actual clemency files." She pointed out that most petitions were rejected. She added that "although public disclosure of the President's decision to grant clemency arguably has a positive impact on an individual applicant, the Court is not persuaded that the converse is trueâ€"i.e., that public disclosure of the President's decision to deny clemency will 'reflect poorly upon '[an individual applicant's] current level of rehabilitation and good character.'" Further, "clemency applicants have no reasonable expectation that OPA will not publicly disclose the existence of their clemency application or the President's eventual decision whether to grant or deny clemency." OPA admitted that it provided such information whenever it received an inquiry about an individual by name. OPA attempted to distinguish the circumstances in Lardner I with those in the present case by arguing that the numbers here were much greater. But Kollar-Kotelly pointed out that "although OPA is correct that the instant FOIA request encompasses a substantially greater number of applicants than those at issue in Lardner I, OPA does not explain how this fact affects an individual applicant's privacy interest. Contrary to OPA's apparent contention, an individual applicant's privacy interest is not somehow magnified simply because other individual applicants' privacy interest may be implicated as well." Kollar-Kotelly pointed out that disclosure of grants of clemency was clearly a matter of public interest. She then observed that "just as disclosure of the names of successful clemency applicants furthers the public's interest in understanding the functioning of the clemency process, so too does disclosure of the identities of unsuccessful clemency applicants 'let citizens know' "what their government is up to."' Moreover, disclosure of the identities of unsuccessful applicants is not only useful for revealing to whom the President has denied clemency, but it also increases the value of the information already in the public domainâ€"i.e., the names of those to whom the President has granted clemency." Although OPA already disclosed individual applicant information on request, it argued that broader availability would heighten the invasion of privacy. Kollar-Kotelly rejected the claim, pointing to the Supreme Court's ruling in Reporters Committee. "The Supreme Court, however, has made it abundantly clear that 'whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.' OPA's focus on the identity of the third-party requester and the manner of disclosure is therefore misplaced." OPA also argued that the identities of unsuccessful applicants would not shed any light on OPA's activities. Kollar-Kotelly, however, pointed out that "the public interest cannot be defined so narrowly. . . [D]isclosure of the identities of the individuals to whom the President has denied clemency serves the public's interest in laying open the executive's exercise of the pardon process for public scrutinyâ€"and the mere fact that disclosure may not also shed light on the substance of the OPA's recommendation and its investigative process does not negate the public interest in disclosure." Kollar-Kotelly questioned whether the records qualified as law enforcement records. She pointed out that OPA had not actually shown that it was a law enforcement agency, although it did argue that its role in dealing with clemency petitions was a law enforcement function. Regardless, Kollar-Kotelly observed that whether or not OPA played a law enforcement role "is not the question now before the Court." She indicated that "Plaintiff does not seek copies of the applicants' actual clemency petitions or any substantive information compiled by the OPA and included in the files of the unsuccessful applicants. Accordingly, the fact that such substantive information may qualify as law enforcement records for purposes of FOIA is irrelevant to the issue at hand." She found that the list of unsuccessful applicants was "the official record of the President's decision to deny clemency to those applicants" and not information compiled for law enforcement purposes. She concluded by noting that "the fact that OPA freely releases the names of unsuccessful clemency applicants to the general public in certain circumstances casts significant doubt on OPA's claim that its records reflecting this information should be treated as confidential law enforcement records that must be protected in order to 'prevent premature disclosure of investigatory materials.'"
Issues: Litigation - Jurisdiction - Failure to State a Claim, Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| User-contributed Documents | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 Docket Events (Hide) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
