DOJ Tells Me It Can't Find A Copy Of The Reason.com Gag Order Request It Already Released

from the good-work,-team-foia dept

Thu, Aug 20th 2015 4:48am — Mike Masnick

As you may remember, earlier this summer, we (and many others) wrote about the ridiculous situation whereby Assistant US Attorney Niketh Velamoor not only sought a bogus subpoena for information on some hyperbolic commenters on the site Reason.com, but also obtained a gag order. At the time, I noted that I had sent in FOIA requests to the DOJ for Velamoor's initial application for the gag order as well as for the DOJ's guidelines on requesting a gag order. It turned out that Paul Levy, from Public Citizen, did the same -- though he (wisely, apparently) made his request directly to Velamoor, rather than to the DOJ's FOIA office. From that, Levy received a copy of the gag order application, which we wrote about last month.

So, imagine my surprise to have the DOJ finally respond to my FOIA request a month later, only to tell me that it could find no responsive documents to my request. There is no real detail provided. Just this:

Of course, FOIA offices are notorious for claiming no responsive docs if you're not 100% accurate in your request, but I think my request was pretty clear. Here was my request:

The June 4th application for a non-disclosure order by the US Attorneys Office in the Southern District of NY concerning the subpoena issued to Reason Magazine (or Reason.com). The non-disclosure order was granted on June 4th by Judge Frank Maass and vacated on June 19th. I am seeking the original application.

And, as we learned from the document that was released to Levy, it was an "Application for § 2705(b) Grand Jury Non-Disclosure Order to Service Provider." And it was, indeed, filed and approved on June 4th. And it was clearly "In Re Grand Jury Subpoena to Reason.com." The idea that the DOJ's FOIA staff "could find no responsive documents" suggests a serious problem with how the FOIA office works -- or how the US Attorney's Office in NY files their documents. Clearly the document exists. After all it was released to Levy. And the description I gave of the document is pretty damn close to the actual document. I am, of course, free to "appeal" the "no responsive documents" claim, but it's not clear what the point is here, since the document was already released (unbeknownst to the DOJ's crack FOIA team).

At the very least, this should call into question how the DOJ handles its FOIA requests.

8 6 15 MR18975 NRD IDFOIA 2015 02882 (PDF)8 6 15 MR18975 NRD IDFOIA 2015 02882 (Text)

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Filed Under: doj, foia, gag order, niketh velamoor, no responsive documents
Companies: reason

22 Comments

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Anonymous Coward, 20 Aug 2015 @ 5:51am

Perhaps the best course of action is to send them a copy of the document so they can find it later. The FOIA for it next year.
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Chris-Mouse (profile), 20 Aug 2015 @ 5:53am

obviuosly somebody goofed. That document should never have been found in the first place.
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Anonymous Coward, 20 Aug 2015 @ 6:14am

Re:
Better yet, "appeal" your FOIA claim and include a copy of your copy of the document. Write in your appeal that "the document looks like this".
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Anonymous Coward, 20 Aug 2015 @ 6:14am

Re:
Seriously, Mike, this is the one you should go for. Send them the *actual document* you want.
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Anonymous Coward, 20 Aug 2015 @ 7:11am

Meta-FOIA
Another thing you could do is ask for records related to the handling of your previous request, and of the request that actually worked. Then you could see what they did differently.
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Quiet Lurcker, 20 Aug 2015 @ 7:12am

Specify type of idiocy
Sounds like the FOIA bureaucrats are just like certain operating systems - a document is different from a Document, is different from a DOCUMENT.
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scotts13 (profile), 20 Aug 2015 @ 7:25am

The document doesn't exist. The document never existed. Any evidence it ever existed was fabricated by a dangerous malcontent. Hey, you're not a malcontent are you? Thought not...
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Joseph (profile), 20 Aug 2015 @ 7:40am

I agree with AC just appeal the request and include the document. While it is moot because you already have the document it will surely have someone scratch their head looking at your paperwork. Only if I could be a fly on the wall to see their face when they read it. lol
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Anonymous Coward, 20 Aug 2015 @ 7:44am

Send them a copy,
then wait six months, and request it again. They probably still won't have it, but at least then you'll know.
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Jeremy Lyman (profile), 20 Aug 2015 @ 7:49am

Of Course They Don't Have It.
Come ON Mike, use your thinking cap! They RELEASED the document; how could they still have it? It's running around with all the other wild documents, slowly becoming re-acclimated to its natural environment, majestic and free.
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tqk (profile), 20 Aug 2015 @ 7:54am

Orwell's an "also ran."
All of us who've been seeing parallels to 1984 have got it wrong all this time. Lewis Carroll is the seminal source we should have been comparing to.

So, what could explain this? Maybe it's in the stack of documents waiting to be entered into the database, but the stack is so big and the secretary who does that hasn't yet got around to it. I thought the court system had gone electronic and everything is now filed electronically, so a link to the court filing would handle this.

Or, they're too busy finding bad guys and FOIA is low priority. Just wait. They'll find time eventually.

Or, they don't give a flying !@#$ that Congress wrote an FOIA law (they don't have to, as there is no effective oversight), so !@#$ you!

Or, "What's a database?"

"Drip, drip, drip, ..."

That's the sound of tyranny. Slow and steady wins the race. In other news, since there is no "front line" on the battlefield in the War On Terror (nor in the War On Drugs, coincidentally), perhaps the Pentagon's new Law of War manual applies everywhere, including the continental USA. You may have been added to another list, that of "unprivileged belligerents" (formerly known as "unlawful combatants").

In which case, you're lucky you're not already wearing an orange jumpsuit. Count your lucky stars for having got off easy this time. Don't expect it to happen again.
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zeiche (profile), 20 Aug 2015 @ 7:59am

Re: Re:
The response would probably come back fully redacted.
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limbodog (profile), 20 Aug 2015 @ 8:00am

Re: Specify type of idiocy
I just hope that process is documented somewhere.
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BW (profile), 20 Aug 2015 @ 10:46am

Send an appeal request. Find out if they read your column
If nothing else, it will make for fun reading. Be sure to update the language of your appeal to make it identical to the information on the letter you did receive.
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Derek Kerton (profile), 20 Aug 2015 @ 11:20am

They Are Using The WENSLEYDALE Gambit
MASNICK: I am looking for a document under the FOIA.
WENSLEYDALE: The cat's eaten it.
MASNICK: Has he?
WENSLEYDALE: She, sir
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Derek Kerton (profile), 20 Aug 2015 @ 11:21am

Re: Orwell's an "also ran."
Dude, you're a good writer.
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Joel Coehoorn, 20 Aug 2015 @ 12:15pm

Get Recursive
You should file an FOIA request for any documents related to the search for your earlier FOIA request.
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tqk (profile), 20 Aug 2015 @ 2:00pm

Re: Re: Orwell's an "also ran."
Why thanks. I've enjoyed yours often enough as well. I just try to entertain (make it worth reading) and maybe educate, and if I can also scare the bejeesus out of somebody (with something I run across that scares the bejeesus out of me) and wake them up to think a little deeper, that's good too.

Have fun!
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Anonymous Coward, 20 Aug 2015 @ 2:00pm

Re: Re:
" "appeal" your FOIA claim and include a copy of your copy of the document. Write in your appeal that "the document looks like this""

Are you guaranteeing to buy him a new front door after the SWAT team forces entry thus allowing DOJ officials to seize the copy of the document that he just told them he has so that they can give it back to him later (or not) ?

They might even force him to destroy his laptop just to be sure that he destroys his copy (a la UK raid on the Guardian where a laptop was symbolically murdered). Better budget for that too.
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toyotabedzrock (profile), 20 Aug 2015 @ 9:34pm

Maybe they never filed it because it was fake?
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K. Kaprow, 21 Aug 2015 @ 6:25am

It's a nonsmoking gun! Possibly a conspiracy!
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Anonymous Coward, 25 Aug 2015 @ 3:19am

I absolutely believe they did not find the documents you asked for. I also absolutely believe they did not look for the documents you asked for. It is the absolutely best way to not find something. And later, when they say they did not find the documents, they're telling the absolute truth.
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