Another Reason Why Child Welfare Fraud Is A Secret

Here are the latest opinions from the Department of Justice on FOIA.  This particular one is quite relevant as it deals with the publishing of information in violent legal matter of an individual who was under the custody of the state.

Once again, I present to the public one more finding of fact and conclusion of law as to why the standard of fraud is so high in child welfare.  Everything in foster care is a secret, including the murders, torture, drugging, rapes, mutilations, and especially the suicides, all funded by your hard earned taxpayer dollars.

Thanks for keeping the secret.


Courts of Appeal

1.Prison Legal News v. EOUSA, No. 09-1511, 2011 WL 72210 (10th Cir. Jan. 11, 2011) (Murphy, J.)

Re:  Request for videos depicting the aftermath of a brutal prison murder and autopsy photographs of the victim which were introduced into evidence and shown in open court

●  Exemption 7(C):  The Tenth Circuit affirms the finding of the district court that certain portions of video and audio recordings depicting the aftermath of a prison murder along with autopsy photographs of the victim were properly withheld to protect the privacy interests of the victim's survivors pursuant to Exemption 7(C).  Comparing the instant case with the facts presented in Favish, the Tenth Circuit finds that "the privacy interest in [the] images [here] is higher than the privacy interest in the photographs at issue in Favish."  "The photographs in Favish depicted the victim of an apparent suicide, . . . but the images did not involve grotesque and degrading depiction of corpse mutilation as do the images at issue here."  Additionally, the Circuit notes that "the images in Favish were all still photographs, whereas the video at issue here depicts corpse mutilation as it occurs."  Likewise, redacted audio portions contain "the voices of the perpetrators themselves describing the heinous acts in progress." 

The Tenth Circuit rejects plaintiff's argument that because the victim "was a prisoner and the images were taken in a prison cell, [he] himself had no expectation of privacy and his family likewise can have none."  Rather, the Circuit holds that "contrary to [plaintiff's] contention that any privacy interest of [the victim's] family is derivative of [the victim's] own privacy interest, family members' privacy interests under FOIA are independent interests." 

The Circuit rejects plaintiff's contentions that "the government was required to offer evidence of the family's objection and that the district court improperly made findings regarding the particular harm the family would suffer."  Instead, the Circuit finds that the "plain language" of Exemption 7(C) shows that "the test is an objective one and does not depend on the affected individuals' statements of objection or their personal views of the harm they might suffer." 

Although the Tenth Circuit finds the public availability of the records at trial "may impact the family's expectation of privacy in those materials[, it] does not negate it."  The court emphasizes that "[h]ere, the images are no longer available to the public; they were displayed only twice (once at each [defendant's] trial); only those physically present in the courtroom were able to view the images; and the images were never reproduced for public consumption beyond those trials."  As such, the Circuit concludes that the victim's "family retains a strong privacy interest in the images."  

With respect to the public interest in disclosure of the images, the Tenth Circuit determines that "[w]hile BOP's protection of prisoners and the government's discretionary use of taxpayer money may be matters of public interest, there is nothing to suggest the records would add anything new to the public understanding."  Moreover, the Circuit notes that EOUSA has fully released the portions of the video and audio files which depict BOP personnel's response to the incident.  The Circuit also finds that the information about the public interests identified by plaintiff, such as the conditions of confinement, the behavior of the two perpetrators and the nature of the mutilation of the corpse, is publicly available.  Accordingly, "to the extent any additional information can be gained by release of the actual images for replication and public dissemination, the public's interest in that incremental addition of information over what is already known is outweighed by the [victim's] family's strong privacy interests in this case."  Similarly, the Circuit concludes that the "audio recordings add little or nothing to the large amount of public knowledge about the crimes and the government's response to them." 

● Waiver:  The Tenth Circuit finds that the family did not waive their privacy interests by virtue of the fact that prosecutors used the images at trial, finding that "[t]he government cannot waive individuals' privacy interests under FOIA."  Additionally, the family's failure to object to the records being made public at trial has no effect on the Circuit's analysis because the "family members did not take any affirmative actions to place the images in the public domain." 

● Public domain doctrine:  With respect to the video and audio recordings at issue, the Circuit differentiates the instant case with the D.C. Circuit's decision in Cottone v. Reno, in which the D.C. Circuit applied the public domain doctrine to rule that the disclosure of wiretapped conversations covered by an Exemption 3 statute that had been played in open court were no longer exempt.  The Tenth Circuit finds that "[e]ven if this court adopted the public domain doctrine [in response to the government's use of the videos at public trial], it would not defeat Exemption 7(C)'s applicability in this matter because the purposes of Exemption 7(C) [i.e., to protect the privacy interests of the victim's family] can still be served."  Lastly, the Circuit rejects plaintiff's "suggestion that admission of certain records at trial is different from other types of public disclosures under FOIA," finding that "for the purposes of FOIA, the only relevant fact about the trial is the extent of disclosure."

● Agency records:  The Tenth Circuit rules that the district court incorrectly limited the reach of the FOIA "to records that shed light on governmental activity."