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Supreme Court Case Could Extend Freedom of Information Act’s Reach

February 23, 1993

NEWARK, N.J. (AP) _ The U.S. Supreme Court will hear arguments Wednesday in a murder case that could greatly extend the reach of the Freedom of Information Act.

The case pits the FBI against V. James Landano, who is appealing his 1977 conviction for the murder of a Newark police officer during a robbery of a check-cashing office.

The FBI has refused to turn over documents Landano’s lawyers say could help prove his innocence, including witness accounts of the 1976 shooting.

The government contends that all sources interviewed by FBI agents as part of a criminal investigation are confidential and that the material is therefore exempt under the FOIA.

The high court will be asked for the first time to define who is a confidential government source under the FOIA, said Eric Neisser, a professor of constitutional law at Rutgers University who is helping Landano.

Neisser said sources such as organized crime informants and whistle-blowers should be protected. But the FBI’s position on confidential sources, if validated by the high court, is dangerously broad, Neisser argued.

″The only way we can know that the FBI is not misusing its power is through the Freedom of Information Act,″ he said.

John Daly, a Justice Department lawyer assigned to the case, said that federal appeals courts in other circuits have upheld the government’s broad definition of who is a confidential source for the last 15 years.

Daly also said that eyewitnesses to a crime deserve the guarantee of confidentiality from the FBI.

″The plaintiffs are somewhat disingenuous″ to argue that the government’s position poses a danger to information access, Daly said.

In 1988 and 1989, Landano filed requests under the FOIA for documents pertaining to the victim, John Snow, and Victor Forni, one of three other defendants who pleaded guilty or were found guilty in the case. Landano maintains that Forni was the triggerman.

In 1990, the FBI provided Landano with about 300 pages from its 726-page file on Snow, Landano said in an interview Monday. He said that after Forni waived his privacy rights, the FBI provided 42 of the 72 pages in its file.

″Most of the documentation was either newspaper clippings″ or edited beyond usefulness, Landano said.

The U.S. District Court in Newark and the 3rd U.S. Circuit Court of Appeals have so far sided with Landano.

″In balancing those interests, it is difficult to envision that information which might serve to free a person wrongly convicted of murder should remain concealed in order to protect someone’s identity or privacy,″ U.S. District Judge H. Lee Sarokin ruled in 1990.

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