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A federal judge in Oregon recently told the Bush administration that it could not use the Freedom of Information Act (FOIA) to keep secret the adjusted 2000 Census data. The census is never uncontroversial, either in how it’s conducted, its results or how the results are used. So, it’s not surprising that the latest census is generating litigation around the country, particularly after decisions in March and October by the administration to use the unadjusted data for state redistricting purposes as well as for apportioning federal funds to states. Census data have long been recognized as inaccurate, often resulting in a net undercounting of the actual population. Undercounting can be a financial nightmare for the undercounted communities. A 1999 study by the General Accounting Office found that because of undercounting in the 1990 census, states and localities with the largest undercount failed to get about $450 million from 15 federal programs. To compensate for undercounting, the Census Bureau conducts a statistical sampling to come up with an adjusted count. The secretary of Commerce then decides which are more reliable — the adjusted or unadjusted data. In the 2000 census, the administration went with the unadjusted data and never released the adjusted count. Boston’s Ropes & Gray filed a suit on behalf of two Oregon legislators against Commerce after the department rejected their FOIA request for the adjusted data. The government said the information was protected from disclosure under the “deliberative process” privilege of Exemption Five of FOIA. That privilege is designed to protect advisory opinions and other parts of the process by which agencies make decisions and policy. But U.S. District Judge James A. Reddan for the District of Oregon in Portland said the adjusted data were the “subject” of the secretary’s decision, not part of the process which led to the final decision. Carter v. U.S. Dept. of Commerce, No. 01-868-RE. The government is likely to appeal, said David O. Stewart of Ropes & Gray, and he said there are at least two other suits, both in California, seeking the adjusted data. Getting that data, he explained, can be helpful to state and local governments. “When states are making their own funding allocations, they may want to know this information,” he said. “If you’re a local government trying to claim discretionary federal funds, you could point out that you got shortchanged under the unadjusted data.” He added that “lots of commercial decisions are made on the basis of census data, for example, whether to locate a new shopping center in a particular neighborhood. Local governments could point out to a business that maybe those numbers saying you shouldn’t locate here are not quite right.” OVERTIME SUITS The 2000 census is generating another kind of litigation, this time involving census workers and the Fair Labor Standards Act. Two Athens, Ga., firms have filed a suit in the U.S. Court of Federal Claims charging that Bureau of Census managers routinely had workers spend more than 40 hours per week on census work but did not pay them overtime and told the hourly workers to certify that they had worked 40 hours or less — not their actual time. The suit also claims that hourly workers were promised bonuses at the end of the census collection but that no bonuses were paid. The bureau employed about 500,000 hourly workers, said Michael Crain of Crain & Davis, who filed the suit along with attorneys from Blasingame, Burch, Garrard, Bryant & Ashley. A “large portion” of those workers could be in the class that, Crain said, he hopes the court will certify soon. Briggs v. U.S., No. 01-552. “Under federal wage laws, it’s the employer’s responsibility to keep up with the actual hours worked,” said Crain. “In our case, it appears that no matter how many hours over 40 in any workweek they worked, our clients were told not to write down more than 40. Luckily, many of the named plaintiffs kept detailed records of actual hours.”

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