A court decision on January 22 thwarted the FBI’s attempt to eviscerate the Freedom of Information Act (FOIA) by creating an exemption that would have allowed it to neither confirm nor deny the existence of any record the agency wanted to keep secret.
Judge Randolph D. Moss of the United States District Court for the District of Columbia argued [PDF] the FBI asked the court to “recognize a new doctrine.” This “doctrine” would permit the agency to “withhold an entire category of otherwise unprotected records” in order to exclude them from FOIA requests.
“The FBI’s present policy would permit it to deny access to a large number of records that are neither exempt nor excluded,” Moss added. It would enable the FBI to conceal hundreds of processing records for every document simply because a “sophisticated FOIA requester” might be able to “infer the existence” of information considered to be sensitive.
The decision was the result of a lawsuit filed by individuals angry and frustrated with the FBI’s process for searching for documents when responding to FOIA requests. These individuals requested records—search slips, case processing notes, case evaluation forms, etc—which would show whether an adequate search was conducted by the FBI or not, and the FBI refused to release the records.
One of the plaintiffs, Ryan Shapiro, who is well-known for his scholarly work which depends on documents obtained through FOIA, told Shadowproof, “When it comes to FOIA, the FBI is simply not operating in good faith.”
“Since its earliest days, the FBI has viewed political dissent as a security threat. And since the passage of the Freedom of Information Act, the FBI has viewed efforts to force Bureau compliance with FOIA in the same light,” Shapiro maintained.
As a result, the FBI has spent the past years establishing and perfecting numerous methods for avoiding compliance with FOIA.
“One of the chief means by which the FBI accomplishes this is to search for records in such a way that the search routinely fails by design,” according to Shapiro. “The FOIA statute doesn’t require an agency to locate requested records. Rather, it requires an agency to conduct a search ‘reasonably calculated’ to locate the records. By utilizing deliberately deficient FOIA search methodologies, the FBI superficially appears to be in compliance with FOIA without having to actually locate (and therefore potentially release) many records.”
“Two out of every three people who ask for FBI records under the Freedom of Information Act are told by the bureau no such documents exist—a failure rate five times higher than at other major federal agencies,” according to a 2009 study by The National Security Archive. As the Associated Press concluded, “If information were a river, the FBI would be a dam.”
Like many government agencies, the FBI abuses exemptions, which are built into FOIA, in order to keep information from the public. A standard tactic the FBI uses, Shapiro said, is to “shoehorn non-exempt records into exemptions that do not, or at least should not, cover those records.”
The FBI attempted to do just that in this particular case. Shapiro and other plaintiffs would like to obtain case evaluation forms, which are records the FBI maintains to track and evaluate employees, who process FOIA requests. But the FBI insisted that they were internal records, which related to “trivial or minor matters,” such as lunch hours or use of parking facilities, and so they are covered by an exemption Congress incorporated to supposedly protect the agency from frivolous records requests.
In a direct rebuke to the FBI, the court determined it was not up to the FBI to decide whether case evaluation forms were of public interest or not. The forms could easily help scholars or journalists learn a great deal about how the FBI fulfills—or does not fulfill—responsibilities under FOIA.
“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,” Moss stated. “Information contained in case evaluation forms may allow FOIA requesters to dispute assertions made in particular cases and, more generally, may enlighten the public about how the FBI goes about satisfying its obligations under FOIA.”
This is hugely significant. As Shapiro said, “Proving to a judge that an agency has conducted an inadequate FOIA search can [be] exceptionally challenging. The information asymmetry between the two parties is so large, and judges so routinely defer to agency declarations, that agencies can and do routinely pass off blatantly deficient searches as reasonable.”
In other words, the court accepted the records requested might potentially show the FBI has failed to comply with FOIA and, if that proves to be the case, such information is critically important, particularly to those whose work depends on obtaining records through FOIA.
Why is it so important for Americans to defend FOIA and appreciate court decisions like this one?
“The Freedom of Information Act is one of the most underappreciated elements of the entire American experiment,” Shapiro declared. “The notion that the records of government are the property of the people, and all we need to do to get them is to ask, is radically democratic. FOIA must not only be defended against the FBI and others who view transparency as a threat, but strengthened, and dramatically expanded. The viability of our democracy may depend upon it.”
For additional context, agencies are able to use something known as a “Glomar” to neither confirm nor deny records. The records agencies try to prevent from release with a Glomar typically involve law enforcement or national security matters.
The FBI in this case tried to invent a super Glomar that would enable the agency to prevent requesters from ever obtaining entire categories of records. This is something Congress never intended when FOIA was established and, fortunately, the judge recognized the FBI’s tactics and smacked them down.
Now, as a result of the decision, the FBI is required to release records about searches for records. The agency also cannot conjure an exemption to conceal any record it may want to keep from the public.
The outcome makes it “easier for requesters to prove the FBI has conducted an inadequate search, which hopefully will incentivize the FBI to conduct less deficient searches in general,” Shapiro concluded.
It is unknown whether the Justice Department will appeal and continue to support the FBI’s efforts to undermine and devastate FOIA.