Judge Rules FBI Improperly Withheld Records on Its Freedom of Information Act Responses

Friday, January 29, 2016

By Gina Carrano, Courthouse News Service


WASHINGTON (CN) - The FBI improperly withheld all records that would show how it responds to Freedom of Information Act requests, a federal judge ruled.


The political nonprofit National Security Counselors and the news-media outfit Truthout brought the challenge after the FBI refused to produce any records it generated in responding to FOIA requests over the last 25 years.


Joining those groups as plaintiffs were investigative Jeffrey Stein and Ryan Shapiro, who is studying FOIA and Privacy Act theory for his doctorate at the Massachusetts Institute of Technology.


Summarizing the case at issue as one "about how the FBI applies FOIA to FOIA," U.S. District Judge Randolph Moss said the exemption the FBI invoked here covers records compiled for law-enforcement purposes.


It said records related to past FOIA cases would risk "the implicit disclosure of highly sensitive information relating to ongoing investigations, confidential informants and classified national security matters," as paraphrased Friday by Judge Moss.


The FBI also invoked an invasion-of-privacy exception it said covers records tracking the performance of FBI personnel.


A court battle over the requests has been brewing for over three years, and Judge Moss granted each side partial summary judgment last week in a 63-page decision.


In rejecting the government's reliance on the "possible presence" of harm, Moss pointed to recent Supreme Court precedent warning "against permitting even substantial policy considerations to trump the plain language of the FOIA."


"There may be compelling reasons to authorize the FBI to withhold search slips and similar processing records," Moss wrote. "But the FOIA itself does not do so, and the FBI cannot act on the basis of an exemption ... that Congress has not provided."


An attorney for all the plaintiffs, National Security Counselors CEO Kel McClanahan echoed this sentiment.


"The overwhelming takeaway from this case is a reaffirmation that ... no amount of legal sleight of hand or predictions of dire consequence" can justify the FBI's decision to "create an exception to FOIA which would allow it to withhold the information it believed should be withholdable," McClanahan said in an email.


"The judge carefully dissected [the government's] argument and found that nothing in the statute or case law supported such an outlandish proposition," McClanahan added. "This opinion highlighted ... the basic truth that if an agency has a problem with the fact that the information it wants to withhold is not covered by an exemption, it should take the matter up with Congress, not the court system."


Judge Moss acknowledged the "gravity of the problem" the FBI faces, noting that its responding to requests for search slips and processing notes "might undermine the FBI's ability to exercise that authority by enabling sophisticated requesters to infer the existence of those records."


FOIA's exclusions simply do not apply, however, to the internal record-keeping documents that the plaintiffs sought.


"These narrowly defined exclusions relate to sensitive matters of law enforcement and national security," the ruling states. "They have nothing to do with the day-to-day administration of FOIA itself."


Moss also found it doubtful that the search slips requested here would disclose law-enforcement techniques as shielded by FOIA exemption 7(e) (pdf).


"An agency cannot justify withholding an entire document simply by showing that it contains some exempt material," the decision says.


Stein and the National Security Counselors were less successful in seeking to compel disclosure of files that the FBI said contained information about private parties.


Though the plaintiffs pointed to FOIA's official-acknowledgment doctrine, which says an agency waives its right to invoke its exemption from disclosing certain information if it has already acknowledged the existence of said information in the past, Moss found that the information requested here was not a "perfect match" with what the FBI had already disclosed in previous requests for search slips and processing.


The FBI did not prevail, however, in withholding information that it said involved employees who perform FOIA searches.


On this point, Moss relied on a Supreme Court case over U.S. Air Force records.


Though the government can invoke the privacy exception used to shield "routine," internal information from public view, says the ruling, Moss said any document containing information of "genuine, significant public interest" is fair game for public consumption.


Under this logic, documentation of previous FOIA request processing is permitted under the public interest test, the court found.


By examining this information, the plaintiffs "may better understand the FBI's methods of processing FOIA requests, and, where appropriate, may hold the agency accountable for its missteps," Moss said, noting that governmental accountability is the very purpose of the FOIA's existence.


Declining to grant summary judgment for either party on certain issues, Moss called for further proceedings on Stein's claim that the FBI wrongfully invoked attorney-work-product privilege in withholding documents that a bureau lawyer prepared in anticipation of litigation.


More information "regarding the nature of the withheld documents" could "shed light" on what the decision referred to as a potential "novel concept of law," Moss said.


Representatives for the Department of Justice have not returned email Tuesday seeking comment nor phone call Wednesday.


To Learn More:

Is the Freedom of Information Act One of Our Least Respected Laws? (by Steve Straehley, AllGov)

Worst Freedom of Information Award Goes to...the FBI (AllGov)


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