Judge
rules FBI unlawfully refused to comply with information act requests
Court finds FBI policy is ‘at
odds’ with the Foia statute in ruling in favor of plaintiffs who contend
government was trying to shield itself from scrutiny
The
main argument the FBI made was that the documents detail law enforcement
techniques and procedures that are not generally known to the public.
Photograph: Chip Somodevilla/Getty Images
Sam
Thielman in New York
Saturday
30 January 2016 08.49 ESTLast modified on Tuesday 2 February
201615.35 EST
The FBI unlawfully
and systematically obscured and refused to answer legitimate requests for
information about how well it was complying with the Freedom of Information Act
(Foia), a Washington DC court found last week.
US district judge Randolph D Moss ruled in favor
of Massachusetts Institute of Technology PhD student Ryan Shapiro, finding that
the government was flouting Foia, a law intended to guarantee the public access
to government records unless they fall into a protected category. Moss found
that the FBI’s present policy is “fundamentally at odds with the statute”.
Shapiro has, with his attorney Jeffrey Light,
provided documents obtained using Foia requests in the past.
The bureau shot down requests for information so
regularly and thoroughly – sometimes saying that records were unavailable,
sometimes that they didn’t exist, sometimes that it could neither confirm nor
deny the existence of records – that Shapiro and his co-plaintiffs asked for
more information about the process by which they had been so often refused.
And those requests for clarifying information
were categorically denied on the grounds that any information about the FBI’s
reasons for denying previous Foia requests were by their very nature secret.
Shapiro and his fellow plaintiffs contended that
the government often acts in bad faith and was trying to shield itself from
scrutiny as broadly as possible. In doing so, they said, it had stretched the
law to breaking point by including harmless documents in the broad categories
of material it refuses to hand over or discuss.
“As the plaintiffs correctly observe,
dissatisfied Foia requesters are often required to take the government at its
word in Foia litigation, where the government has access to the disputed
records and knowledge of how a search and response was conducted,” wrote Moss
in a 63-page opinion.
There are at least three categories of records
the FBI simply refuses to part with:
- “Search slips,” which document
the efforts of analysts to find files requested.
- Case evaluations of the
analysts supposedly looking for the records in question, which could
detail whether an individual analyst has a history of errors or
overapplication of the nine Foia exemptions.
- Case processing notes, which
provide further detail of individual searches.
“The FBI does nearly everything within its power
to avoid compliance with the Freedom of Information Act,” Shapiro said. “This
results in the outrageous state of affairs in which the leading federal law
enforcement agency in the country is in routine and often flagrant violation of
federal law.”
The main argument the FBI made was that the
documents detail law enforcement techniques and procedures that are not
generally known to the public – an established exemption from Foia. The
plaintiffs provided examples of each kind of document obtained by Foia before
the FBI adopted its policy of nondisclosure.
Moss agreed that even if individual documents
were protected by that Foia exemption, the entire categories of document the
FBI withholds were emphatically not. “[The FBI] concedes that the vast majority
of [the records in question] are not protected at all,” he wrote. “It is only
arguing that by withholding all search slips, even those not protected
by Foia, it can amass a haystack in which to hide the search slips that are protected
(emphasis his).”
“The FBI’s exercise of its statutory authority
to exclude documents from Foia’s reach is not the kind of ‘technique’ or
‘procedure’” to which the necessary exemption refers, wrote Moss.
Shapiro and Light sued alongside Jeffrey Stein
and nonprofit group Truthout, who were represented by Kel McClanahan of
co-litigant group National Security Counselors.
There is little love lost between Shapiro and
the government. Shapiro boasts theunusual distinction among graduate
students of having his dissertation work challenged in court on the creative
grounds that it constitutes a dangerous “mosaic” of individually legal parts
that, were it released, could “significantly and irreparably damage national
security”, in the words of the FBI.
It’s an argument that Shapiro finds interesting
and would very much like to hear in detail, but he can’t. “We can’t even read
most of the FBI’s argument to support this contention, because the FBI
submitted it in the form of an ex parte, in cameradeclaration,” Shapiro said.
“This is essentially a secret letter to the judge from the deputy assistant
director of the FBI’s counter-terrorism division.”
Shapiro may be the single most prolific Foia
requester in the history of that law, so when he says the FBI is particularly
difficult to work with, it’s because he has worked with many government
agencies. “While Foia with some agencies can be akin to a protracted business
meeting or an attempt to get telephone customer support from a telecom over a
holiday weekend,” he said. “Foia with the FBI is a street fight.”
“The US attorney’s office is reviewing the
ruling and has no further comment on this matter,” Justice Department spokesman
Bill Miller said. Miller did not say whether the DoJ would appeal the ruling.
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