Federal Judge Says The FBI Needs To Stop Playing Keepaway With Requested FOIA Processing Documents

Score one for the American public. A federal judge has reached the same conclusion many FOIA requesters have: the FBI simply doesn't play well with public records laws.

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 MIT 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”.

The 63-page opinion dives deep into the FOIA exemption weeds. Moss does grant the FBI a few of its motions for summary judgment, but on the whole, he finds the FBI's responses (or lack thereof) to several disputed FOIA requests to be unjustified. The documents sought by Shapiro and his co-plaintiffs (Jeffrey Stein, Truthout, National Security Counselors) deal with the FBI's FOIA response procedures. These include "search slips," which detail the FBI's efforts to locate requested documents, case evaluations (which can give FOIA requesters some insight on the application of exemptions and search efforts made by individual staffers) and other processing notes. The FBI refused to part with any of these background documents if they pertained to other denied FOIA requests. The FBI argued that most of what it withheld fell under "law enforcement techniques and procedures," which it feels are categorically excluded from disclosure, thanks to FOIA exemption 7(e). Of course, it all depends on which court it's making this assertion in, as the clause pertaining to this exception is punctuated badly.

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

In some districts, the courts have interpreted the wording to mean these records are exempt. In other districts, the courts have read the FOIA exemption clause as meaning these documents are only exempt if the FBI can offer evidence that releasing them might compromise national security or ongoing investigations. Judge Moss' opinion agrees with the first interpretation. In doing so, he meets the FBI halfway, which is far further than the FBI has been willing to meet the suing FOIA requesters. Even with the additional slack, the FBI still isn't living up to FOIA standards.

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].” “[T]he 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.

Moss is not the first DC District judge to order the FBI to explain its overuse of FOIA exemptions. In another FOIA lawsuit filed by Ryan Shapiro, Judge Rosemary Collyer found the FBI's lack of responsiveness and explanations to be problematic.

"(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes. Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees."

I'm sure the FBI will challenge Judge Moss' order