FBI vs. Reporter


June 21, 2002


MIKE PESCA: In 1967 University of California President Clark Kerr was removed from office by the state's board of regents. At the time the move wasn't shocking because Ronald Reagan had just been elected governor, partly on a promise of ousting the free speech-supporting U.C. president. But what is shocking is that the FBI played a major role in Kerr's firing. According to recently released documents, J. Edgar Hoover orchestrated a smear campaign against the university president and other members of the Berkeley faculty charging professors with sexual perversion, excessive drinking and other, quote, "conduct reflecting mental instability." Details of the smear campaign including Reagan's involvement came to light after a reporter for the San Francisco Chronicle won a battle with the FBI under the Freedom of Information Act. Seth Rosenfeld first looked into the story when he was a student at Berkeley in 1981, and there it was in the Chronicle last week. Seth Rosenfeld, welcome to OTM.

SETH ROSENFELD: Thank you. Glad to be here.

MIKE PESCA: So let's boil down 17 years if we can. When you were a student your request was met with a 7,000 dollar bill for document-copying which you couldn't pay. By 1985, you had brought suit and a judge agreed with you. In 1988 a U.S. magistrate also agreed with you. In 1991, you won again on appeal, and by 1995 we have the U.S. Court of Appeals handing you your fourth consecutive legal victory. But that's 7 years ago. Why is this story only coming to light now?

SETH ROSENFELD: For a couple of reasons. One is it took the FBI a certain amount of time to process the records and release the records. And then secondly this is a lot of paper -- more than 200,000 pages were released. So I spent a lot of time sifting through the records, trying to piece things together. Meanwhile I had a, a day job. [LAUGHS]

SETH ROSENFELD: At some point it must have occurred to you that the FBI wasn't so convinced of its legal argument. It just thought it would wear you down.

SETH ROSENFELD: I don't know what they were really thinking. The court record in the case establishes that they were making unfounded claims of national security, unfounded claims of law enforcement operations in an effort to withhold thousands of pages of records that 5 federal judges said were public documents and should be released. The FBI took the position that none of this information was in, in the public interest. The courts had a different view of that. They said this information goes to a turbulent and historic period of time. The documents themselves show that the FBI waged an unlawful campaign to remove Clark Kerr as president of the university and also that the FBI engaged in an unlawful investigation of the Free Speech Movement.

MIKE PESCA:So at first glance, that might seem like the judge is going beyond just your request to see the documents, but in fact he had to rule on if what the FBI was doing was legal to make sure that the documents were appropriate to be released.

SETH ROSENFELD: That's exactly right, because the Freedom of Information Act allows federal agencies to withhold information for legitimate law enforcement purposes or legitimate national security purposes. So when you challenge the government's claim, you're really challenging whether they were engaged in, in lawful activity or not.

MIKE PESCA:In the '90s when they were still denying you access to this, when every FBI agent who was actually involved in it had long left the bureau; most of them had probably died -- did you ever say to yourself just who are you exactly protecting? J. Edgar Hoover had become discredited by this point. Why perpetuate this?

SETH ROSENFELD: Well you're asking a very good question. I'm, I'm not sure I can answer it, but what I can say is that they spent I would estimate more than a million dollars in trying to withhold information here, and you really have to wonder whether that is a good use of tax dollars to try and withhold documents that are 30 and 40 years old.

MIKE PESCA:Let's be realistic. It's good that this story is out and known but can anyone who wants actually point to anything you've been through and say that's my precedent and reasonably expect to get information in a more timely manner?

SETH ROSENFELD: Yeah. The court cases are helpful to citizens seeking information in two ways. One of the court rulings, it helps people win attorney fees when they prevail in FOIA requests. The second court ruling requires the government to release more information in many cases when they're claiming law enforcement circumstances.

MIKE PESCA: Well, Seth Rosenfeld, thank you very much, and I know my next comment will make it all worthwhile but -- good job.

SETH ROSENFELD: [LAUGHS] Okay, thank you.

MIKE PESCA:Seth Rosenfeld is a staff writer for the San Francisco Chronicle. His 20-plus-year legal odyssey resulted in last week's 8 page section, The Campus Files.