Feds Keep Magically Finding Documents They Insisted Didn't Previously Exist

from the funny-how-that-works dept

Fri, Aug 21st 2015 12:29pm — Mike Masnick

We just wrote about a FOIA request where the government said there were no responsive documents, even though it had already released the very responsive document. It appears that this kind of thing is a common problem in the government -- and it doesn't seem to get solved until you sue the government. Here are two examples.

First up, Gawker had sought the email communications of Hillary Clinton deputy Philippe Reines, focused on his conversations with journalists. The State Department came back with a no responsive records reply, which was clearly bullshit, since Reines was known for regularly emailing reporters. So Gawker sued and guess what just happened: the State Department just magically found 17,855 emails that are likely responsive. How about that?

Next, we've got Vice, where "FOIA terrorist" Jason Leopold is employed. As you may remember, back in 2014, Ed Snowden claimed that he had made multiple attempts at raising concerns internally at the NSA. Eventually, the Director of National Intelligence released a single email between Snowden and the NSA's General Counsel, which was just asking a specific question. The NSA did hint (in a different FOIA request response) at the likelihood of there being more emails it didn't plan to release. Leopold sent a more specific FOIA request to the NSA... and was told there were "no responsive documents."

And, as he's done more than basically anyone, Leopold sued. And at a hearing in that case, the government is now admitting that there are three more emails that Snowden sent to the NSA's Oversight & Compliance Office, though the DOJ claims that none of these emails were actually raising questions about NSA surveillance. It's certainly possible that, in this case, it's true that there really were no more responsive documents, but the late addition noting these three other emails, once again, suggests that when sued, the government suddenly starts finding more documents than when directly asked under FOIA.

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Filed Under: documents, doj, ed snowden, foia, hillary clinton, jason leopold, lawsuits, philippe reines
Companies: gawker, vice

12 Comments

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cerda (profile), 21 Aug 2015 @ 12:51pm

Searched email after the leak? Why?
"The NSA maintains that it collected and searched every email Snowden sent after he leaked (...)"

Why after? I would expect the search to go _before_ the leak. It seems Snowden leaked after he tried to raise concerns.

But, perhaps, this is just a journalistic mistake.
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Mason Wheeler (profile), 21 Aug 2015 @ 12:54pm

Re: Searched email after the leak? Why?
That's probably a mis-parse on your part:

The NSA maintains that (it collected and searched every email Snowden sent) (after he leaked).
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Agonistes (profile), 21 Aug 2015 @ 1:09pm

You'd almost be tempted to think they didn't know what the hell they were doing or something.
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That One Guy (profile), 21 Aug 2015 @ 1:17pm

Re:
On the contrary, they know exactly what they're doing. In particular, they know that the only thing that can force them to release any documents is a lawsuit, and they know most people will give up rather than file one, so the more roadblocks they can throw out, making the process as painful as possible, the less work they have to do.
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Anonymous Coward, 21 Aug 2015 @ 1:53pm

Re: Re:
They also know that they are much less likely to be fired for not releasing records that are either embarrassing or show outright illegal activity. For the most part they are asked to retire or move to another position and never get a single day of jail time.
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Stephen, 21 Aug 2015 @ 2:59pm

Nothing to See Here, Folks. Move Along.
NSA to Vice.com: You don't need to see these emails. These are not the emails you are looking for. Move along. Move along...
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Anonymous Coward, 21 Aug 2015 @ 3:04pm

I imagine looking with both eyes open as opposed to closed allows them find much more than prior.

"I can't see it, so it doesn't exist(hands over the eyes)"
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Maureen Callahan, 21 Aug 2015 @ 3:36pm

Great Article
Thanks for the good work, I think it makes our country a better place to live in. Transparency is not a bad thing and let's face it our gov't certainly has a lot of paperwork to consider.
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Anonymous Coward, 21 Aug 2015 @ 11:34pm

Freedom Of Information Act lawsuits sound like a big time and money waster. What's the reward? Illegible documents with black ink covering up 90% of the words.

I prefer the whistleblowing method. Anything less, is pretty much guaranteed to be a big time and money waster.

Don't get me wrong. I applaud FOIA requesters because I don't have the time, money, patience, and temperament for it.
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Agonistes (profile), 22 Aug 2015 @ 3:45am

Re: Re:
I agree to a point, but I believe there's an element of incompetence involved. The fact they aren't motivated by anything to actually be efficient in areas that are 'PR'-related is the primary cause IMHO.
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Anonymous Coward, 22 Aug 2015 @ 10:05am

Re:
Most three-year-olds are quickly disabused of that notion. Too bad the lesson doesn't stick.
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foolie, 26 Aug 2015 @ 4:41pm

So what are the consequences? Does a private party need to seek sanctions?
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