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Access to public documents through Freedom of Infomation Act is in jeopardy

Jane Kirtley (l) warns that our government’s fear of exposure threatens our access to public information. FBI Assistant Director Cassandra Chandler is mum on how much detail a requestor must present in a FOIA request to ensure the agency will investigate its case files thoroughly.

Is this any surprise in Bush’s America? Two items that should alarm you. First, in a specific case of attempted censorship, the Right wants to erase gay rights, anti-war and pro-choice demonstrations from a taxpayer-funded video of the history of political protests at the Lincoln Memorial. Two groups failed to receive documentation of the Park Service’s plans to do so under the Freedom of Information Act. (

…People For the American Way Foundation (PFAWF) and Public Employees for Environmental Responsibility (PEER) filed a lawsuit in federal court this week to force the National Park Service to release the documents.

The groups allege that the documents demonstrate that Park Service officials were planning to change the videotape to satisfy the objections of right-wing organizations, and the lawsuit follows PEER and PFAWF’s unsuccessful attempts to obtain the documents under a Freedom of Information Act (FOIA) request.

In November 2003, under pressure from right-wing organizations, the Park Service announced that it would alter an eight-minute video containing photos and footage of demonstrations and other historic events that have taken place at the Lincoln Memorial. The organizations reportedly complained that brief seconds of footage showing gay rights, pro-choice and anti-Vietnam War demonstrations implied that “Lincoln would have supported homosexual and abortion ‘rights’ as well as feminism.” In response, the Park Service is reported to have promised to develop a “more balanced” version of the videotape that has been playing at the Lincoln Memorial since 1995.

…“We are simply trying to unearth the history of an attempt by the Bush Administration to rewrite history,” stated PEER Executive Director Jeff Ruch, whose organization represents Park Service employees. “Our tax dollars are being spent so that images of feminists, war protestors and gays can no longer be glimpsed at what is supposed to be a shrine of democracy.”

Another related and unsettling thing to know is that our right to information under FOIA is under legal attack. The FBI wants to limit the extent of searches performed when a FOIA request is made. Your government doesn’t want you to have access to information that is supposed to be in the public domain. The Justice Department of Ashcroft (and probably soon, Gonzales) is not working on behalf of the people’s interest when it comes to Bush’s beloved word at the Inauguration, F-R-E-E-D-O-M. (AP):

In court, the FBI is defending a recent automated search that missed some documents released years earlier in a separate FOIA case.

Representing the FBI, the Justice Department asked a federal judge this month to dismiss the lawsuit and said its request should not be undermined “by an unsuccessful search for a document as long as the search was adequate.” Justice Department guidelines say the law requires a search “reasonably calculated to uncover all relevant documents.”

Legal and academic critics say the search in this case didn’t meet that standard. They said they suspect the transfer of records from paper to electronic files has become an excuse for doing cursory searches that the government knows won’t retrieve all relevant documents.

We all thought that digitization of government documents and electronic FOIA would mean greater public access, but time and again we’ve seen government agencies use it as an excuse for obfuscation,” said Jane Kirtley, a University of Minnesota journalism professor who has waged many FOIA battles. “They say, `We don’t have the software set up to find what you’re looking for.'”

The lawsuit in question was filed by a lawyer in Salt Lake City, Jesse Trentadue, who is pursuing a theory his brother Kenneth was murdered in a federal prison isolation cell in Oklahoma City on Aug. 21, 1995. Kenneth’s bloody and bruised corpse raised questions of foul play among many officials, but local and federal investigations ruled his death a suicide.

Last summer, Trentadue requested:

_A Jan. 4, 1996, message from FBI Director Louis Freeh’s office to the Oklahoma City and Omaha, Neb., offices that discussed the 1995 Oklahoma City federal building bombers (the FBI’s OKBOMB case) and a Midwest gang of bank robbers (the FBI’s BOMBROB case). He enclosed a newspaper story with excerpts from the message.

_The FBI’s record of an interview that Trentadue says he gave an agent and two Justice Department officials on Aug. 12, 1996, which discussed the lawyer’s dead brother and the bank robbery gang, including one member who resembled Kenneth.

_All documents about any connection between the Southern Poverty Law Center and eight named individuals from the OKBOMB and BOMBROB investigations or a white supremacist compound in Elohim City, Okla.

The FBI told Trentadue Nov. 18 it found no documents matching his requests.

Trentadue responded Nov. 30 by filing with the court a copy of the January 1996 message, which he had learned in the meantime had been released under FOIA in 1997. Trentadue also submitted a copy of an August 1996 teletype from Freeh’s office that said two of the bank robbers were present when Oklahoma City bomber Tim McVeigh called the Elohim City compound. That too was released years earlier under FOIA.

Trentadue asked the court to order another FBI search.

But this month, the Justice Department told the court that, despite not discovering those documents, “The FOIA search in this case was reasonable.” David M. Hardy, chief of the FBI’s record and information dissemination section, told the court the FBI had searched the general indices to its central records system and two shared computer drives in the Oklahoma City office.

Hardy acknowledged, however, that the indices are not complete. “The FBI does not index every name in its files,” Hardy told the court. Other than the subject, suspects and victims, names in FBI files are indexed at the discretion of the investigating agent and supervisors if they are “considered pertinent, relevant or essential for future retrieval.” It’s not clear whether any other federal agency has an index like the FBI’s.

Given the details Trentadue provided, Rebecca Daugherty, director of the FOI Service Center at the Reporters Committee for Freedom of the Press, said the government’s response “doesn’t sound reasonable.”

The FBI should not “ignore the map given by the requester,” Daugherty s
aid. “If a requester can accurately describe a case so the agency can easily find the file, then it’s reasonable to search that case file.”

Citing the litigation, FBI Assistant Director Cassandra Chandler declined to say how much detail requesters must supply to extend a search beyond FBI indices to case files.

Here is a link to a How-To reference on using the FOIA.

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Pam Spaulding

Pam Spaulding