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SCHWARTZ v. UNITED STATES DOJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


August 30, 1977

ROBERT BENNETT SCHWARTZ, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants

The opinion of the court was delivered by: PRATT

MEMORANDUM

 PRATT, District Judge

 This is an action in which plaintiff seeks certain records from the Department of Justice and Peter A. Rodino, Jr., Chairman of the Committee on the Judiciary of the United States House of Representatives, on the investigation of one Peter R. Schlam. The Department of Justice is sued under the Freedom of Information Act. Mr. Rodino is sued under the common law right of access to public records. The matter is now before the Court on Mr. Rodino's motion to dismiss. Mr. Rodino claims that Congress is not subject to the common law rule which gives citizens a right of access to public records.

 The historic common law right to inspect and copy public records is recognized in this jurisdiction. United States v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252, 1257 (1976). The general rule is that all three branches of government, legislative, executive, and judicial, are subject to the common law right. Courier-Journal & Louisville Times Co. v. Curtis, 335 S.W.2d 934, 936 (Ky. 1959), cert. denied, 364 U.S. 910, 5 L. Ed. 2d 224, 81 S. Ct. 272 (1960), partially overruled on other grounds, St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811 (Ky. 1974); 66 Am. Jur. 2d Records and Recording Laws § 15 (1973).

  Defendant Rodino has set forth no persuasive reason why Congress should be exempted from the common law rule. It is true that Congress has exempted itself from the requirements of the Freedom of Information Act, 5 U.S.C. § 552, by 5 U.S.C. § 551(1)(A). That Act, however, is not coextensive with the common law rule under discussion. It applies to all matters in Government files; the common law rule applies only to "public records." Moreover, we can find no inconsistency or conflict between the Freedom of Information Act and the common law rule. Even if there were an inconsistency or conflict, the Act would have to be construed narrowly, favoring application of the common law, because the Freedom of Information Act is in derogation of the common law.

 Accordingly, we hold that Congress is subject to the common law rule which guarantees the public a right to inspect and copy public records. Absent a showing that the matters sought by plaintiff are not "public records" within the meaning of the common law rule or that plaintiff does not possess any "interest" required by the rule, we cannot grant defendant Rodino's motion for dismissal.

 If Congress wishes to exempt itself from the common law rule or to impose standards for its application, it has the means to do so readily at its disposal. It has, however, not done so and therefore remains subject to the common law rule.

 An order will issue accordingly.

 John H. Pratt United States District Judge

 ORDER

 Upon consideration of the motion of Peter A. Rodino, Jr., to dismiss this action as to him and in accordance with the accompanying Memorandum, it is this 27th day of August, 1977,

 ORDERED that the aforesaid motion be, and hereby is, denied.

 John H. Pratt United States District Judge

19770830

© 1992-2004 VersusLaw Inc.



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