The U.S. Justice Department must disclose the names of applicants who were denied clemency under the second Bush administration, a federal appeals court in Washington ruled today.
President George W. Bush rejected more than 9,200 applications for pardons and commutations during his two terms in office. The DOJ's Office of the Pardon Attorney publishes the names of individuals who are granted clemency but does not automatically create a public list of individuals whose applications were denied.
The government was on the losing side of the public records dispute in the U.S. District Court for the District of Columbia. Judge Colleen Kollar-Kotelly last year ordered the government to produce the names to the plaintiff, George Lardner, a retired Washington Post reporter who is writing a book on clemency.
"Fundamentally, the disclosure of the requested information shines a light on the most basic information about the executive's exercise of his pardon power — who is and who is not granted clemency by the President," Kollar-Kotelly wrote in her opinion.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today unanimously upheld Kotelly’s ruling, rejecting the government’s concern about the privacy interests of the applicants and declaring that the information is not a protected law enforcement record. The court's ruling is here.
Judges Douglas Ginsburg, Judith Rogers and Merrick Garland issued a three-page per curiam judgment in favor of Lardner, represented by Public Citizen Litigation Group director Allison Zieve. The appeals court heard the case in September.
The government’s confidentiality and stigma concerns, the appeals court said, are undermined by the pardon office’s procedures. Applicants are told the pardon office may release information to employers and neighbors.
Under the current set-up, the pardon office will confirm whether a specific, named person was denied a pardon or commutation application. If the appeals court ruling stands, the government will have to prepare a list of all applicants who were denied clemency.
The appeals court gave a nod to one of the reasons Lardner wants the list of names. In 2007, a Justice investigative report said that then-current Pardon Attorney Roger Adams had made “highly inappropriate” remarks about a Nigerian applicant. Lardner is investigating the extent to which ethnic consideration played a role in the clemency process.
“The incremental value of the withheld information…is not speculative in view of the Inspector General’s Report on whether impermissible considerations played a role in pardon determinations,” the appeals court said.