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

from the the-first-rule-of-FOIA-processing-is... dept

Wed, Feb 3rd 2016 3:20am — Tim Cushing

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. It has no interest in providing additional documents to Ryan Shapiro as it's convinced the prolific FOIA filer will "trick" it into revealing stuff it doesn't want to with multiple, overlapping FOIA requests. The FBI's "mosaic theory" is being tested in court. With the claims it's made here, it clearly wants the court to reinterpret the letter of the law in its favor -- something that would move the agency even further away from the spirit of the law, which is exactly where it wants to be.

Shapiro-v-Fbi (PDF)Shapiro-v-Fbi (Text)

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Filed Under: doj, fbi, foia, ryan shapiro

23 Comments

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That One Guy (profile), 3 Feb 2016 @ 3:17am

No punishment = No incentive to comply
One judge, two judges... even if every single judge in the US told them to hand over the documents and/or stop stonewalling FOIA requests, so long as that order doesn't carry a penalty for non-compliance, they have no reason to care. When refusal to comply carries an actual penalty, then and only then will they consider changing their response to FOIA requests, and not a minute before.
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Paul Renault (profile), 3 Feb 2016 @ 3:55am

Re: No punishment = No incentive to comply
Hear, hear!

In cases of corporate malfeasance, it's been shown over and over, that most fines are simply considered as the cost of doing business. Putting managers in jail, on the other hand, DOES get their attention.

I'm quite confident that when FBI agents and their bosses start spending a month or two in jail (especially without pay) for disobeying a court order, their cavalier attitude will change.
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Anonymous Coward, 3 Feb 2016 @ 5:24am

Police Corruption
Official oppression is a perfect example of the FBI's refusal to provide FOIA's. In addition to obstruction of justice. That means, Jame's Comey and everyone down the line that had been lying to the public about FOIA's are all guilty of official oppression including all police officers involved in the cases FOIA's were requested on.
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Quiet Lurcker, 3 Feb 2016 @ 5:28am

Re: Re: No punishment = No incentive to comply
I don't think things even need to get that far.

Just have the judge hand down an order to the local law enforcement community to have them
1. start rounding up any feds that are out and about and impounding their paperwork and computers
2. secure the feds' offices and start rummaging through their records and computers, and
3. (for extra points) start prosecuting and jailing the feds for any violations of local law that might turn up in the course of those search.

How many times will that happen before the feds get the idea they have to comply, I leave as an open question.
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Anonymous Coward, 3 Feb 2016 @ 5:44am

Re: Re: Re: No punishment = No incentive to comply
All tyranny needs to gain a foothold is for people of good conscience to remain silent.-Thomas Jefferson

So you see. If the crime doesn't fit the punishment, then as citizens we are responsible to overthrow a corrupt government through force exercising our 4th Amendment.

Not only is the FBI guilty of official oppression and obstruction of justice, but so is the DOJ for turning a blind eye. Including our very own commander and chief.
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Anonymous Coward, 3 Feb 2016 @ 6:59am

Re: Re: Re: Re: No punishment = No incentive to comply
Agreed. Our government willing to suppress evidence of crimes committed by our government,elected officials and police. The FBI, DOJ along with our president are guilty of the said crimes of Official oppression and obstruction of justice. Mind you that FOIA's are required by law to keep a "transparent government". Furthermore we all know how much of a liar our president is for claiming to keep "the most transparent government under his office" is. And that to me is enough for an impeachment. A president who lies to his people can never have it's peoples trust. All these FOIA's, they've been sitting for months, years, decades?( etc )for citizens to receive them. And with no accountability means we have a tyrannous government. And that means. As citizens we have to "peacefully assemble", then arm ourselves to the teeth. Then by numbers take over our government by force. Why? Because everything that's going on is a test to strip us of every constitutional right that we have until we have none. And trust me, if you don't supersize your constitutional rights, it's the same as not having any.
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Anonymous Coward, 3 Feb 2016 @ 7:11am

Re: Re: Re: Re: No punishment = No incentive to comply
2nd Amendment, still early in the day for me. But still..The 2nd Amendment gives us the right to fight a tyrannous oppressive government which we have at this point.
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Anonymous Coward, 3 Feb 2016 @ 7:46am

Re: Re: Re: Re: Re: No punishment = No incentive to comply
Agreed. Our government willing to suppress evidence of crimes committed by our government,elected officials and police. The FBI, DOJ along with our president are guilty of the said crimes of Official oppression and obstruction of justice. Mind you that FOIA's are required by law to keep a "transparent government". Furthermore we all know how much of a liar our president is for claiming to keep "the most transparent government under his office" is. And that to me is enough for an impeachment. A president who lies to his people can never have it's peoples trust. All these FOIA's, they've been sitting for months, years, decades?( etc )for citizens to receive them. And with no accountability means we have a tyrannous government. And that means. As citizens we have to "peacefully assemble", then arm ourselves to the teeth. Then by numbers take over our government by force. Why? Because everything that's going on is a test to strip us of every constitutional right that we have until we have none. And trust me, if you don't exercise your constitutional rights, it's the same as not having any.
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Sobe (profile), 3 Feb 2016 @ 7:51am

Re: Re: Re: No punishment = No incentive to comply
Just have the judge hand down an order to the local law enforcement community to have them

LEO's are still LEO's and I doubt anything of any value will be found by any local law enforcement. They'll protect their brothers.
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Quiet Lurcker, 3 Feb 2016 @ 8:16am

Re: Re: Re: Re: No punishment = No incentive to comply
Mmmm, yes and no.

I agree, there may be some instances of the 'thin blue line'. But, local judges will (hopefully) not be willing to put up with too much of that kind of nonsense - it would be an offense against the dignity of the court, and 'we mustn't have that, no sir'.

This is one of those EXTREMELY rare instances where 'power corrupts' works in our favor, instead of against us.
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PRMan, 3 Feb 2016 @ 8:33am

Simple solution
Put the head of the FBI in jail for contempt until they comply.

Because that's what would happen if WE played these kinds of games with the court.
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Anonymous Coward, 3 Feb 2016 @ 8:44am

I can see if a local decision handed by a local judge would solve a local issue. BUT! When has the FBI, NSA DOJ ever actually did what a judge ordered them to do? Don't you know that none of the organizations like to work together or share information? DOJ hates the FBI because the FBI never gives them FOIA's either. But the DOJ is suppose to be the teir to take action against any branch of govt corrupt. Especially when it comes to oppression. But the 2nd Amendment clearly states to take up arms against a tyrannous govnt which is the law of our constitution. Furthermore, most of thos FOIA's are on specific corruption cases implicating law enforcement agencies the FBI, CIA, NSA etc. How long has this been going on? Longer than Obama's two terms as president. And who has taken accountability? Not the FBI and certainly not the DOJ or the police. They all abuse the system and have been while getting away with it. Obamas a mouth piece that lies to every about how "transparent our govt is", when we know that's a lie. And everyone all down including our president just turns a blind eye. You don't shove it under the rug and think whoever that is holding our agencies accountable will actually succeed because they won't. How about the NSA? They have been violating everyone's 4th. And that has been repeatedly ruled as unconstitutional. And all the while the NSA was and still is violating our 4th(even while ordered to stop). And you know what? While the program was supposed to have been stopped, nope, still going on. And who was holding them accountable? A single man who is in Russia, snowden. So while our corrupt government is trying to cover up its tracks, the past 8 years we have been under a corrupt government. This ruling that the judge made, points out that our branches of government can no longer be trusted. Our president is a liar, the NSA are liars, the FBI are liars, the cops are liars. Our politicians? Do your really trust them? I mean seriously. What gives? People are too mind controlled watching their Fox news to understand what's really going on in the world. So in short, no local law enforcement will not enforce the law of the upper tiers of authority. And do you really think that's going to happen? Common now, wake up. Our government is more corrupt than it has ever been. And a new president isn't going to shuffle the cards for anything to change. We'll just have another fake leader who golfs and breaks international treaties and commit war crimes....
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Anonymous Coward, 3 Feb 2016 @ 10:02am

Corruption in general
This reminds me. Does anyone remember when we the people reached its quota for demanding the impeachment of obama? https://petitions.whitehouse.gov/response/short-answer-no-keep-reading

^ Remember That? So how accountable is our commander in chief? Not accountable at all because he never stepped down, he laughed the petition to impeach him off. He didn't even take it seriously. Add to all the charges stacked up against the FBI, DOJ, NSA. All appointed political officials tied to the scandal are guilty of violating our most trusted constitutional rights. And with this conclusion, it is obvious that we now have a tyrannous government. It has been for way too long (2 terms) that this BS has been going on. And somebody's got to hold the govt accountable, so if not the FBI, DOJ and our own president. Nobody's going to do anything about it unless it's us the citizens. And that basically means we have to take up the 2nd amendment and force our government to end and elect new officials with better practices on how to run this country without oppressing us. I honestly don't believe our government will ever be honest with us. And that's why we cannot trust our government or officials. So if you can't trust them. Why do we have them in office? Why do we even need them in office? Why do these agencies even exist if for the past however many decades all of them have been lying to us? We don't need them. I have made my point.
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Anonymous Coward, 3 Feb 2016 @ 10:08am

Re: Corruption in general
Actually I had to correct myself. The we the people site came very close to reaching its quota but was stopped before it could pick up over that.
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Whatever (profile), 3 Feb 2016 @ 10:24am

No winners here
This is one of those battles where neither side is worth cheering for.

The FBI is playing tight, tight, tight with the rules and trying everything under the sun to keep documents from seeing the light of day in any form that means anything. Shapiro is playing loose, loose, loose with the FOIA concept and perhaps making a bigger mess than he can imagine.

What scares me about Shapiro is that his use of the FOIA borders on the ABUSE of the act, so much so that its the type of case where the law may have to change to keep him from overwhelming the government and it's agencies with what amount to nonsense requests and fishing expeditions. He's bordering on harassment, IMHO, and could potentially make it harder to get information in the future. He's basically making the FBI's case for them.

The FBI certainly are being dicks here. There is no doubt that there is plenty of material they don't want in the public eye, either it's too revealing about their methods, or perhaps will expose some dirty secrets or less than savory ways they have investigated people. Their constant attempts to hide things seems pretty much an admission of guilt.

So on one side, an agency with a guilty conscious. On the other side, a professional process abuser. No matter who wins, the potential is that we will all lose.
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Coyne Tibbets (profile), 3 Feb 2016 @ 1:16pm

Minimum compliance strategy
I think a new strategy needs to be used with respect to FOIA enforcement.

An idea I had was this: Congress sets a minimum compliance level, perhaps 90% of requests completed in 30 days, with , perhaps, responsive documents in 70% of cases.

Fail that for three successive months and the department budget is automatically reduced by 10% until compliance is achieved. With ratchet; if the department remains out of compliance for a complete budget cycle then the 10% becomes permanent and they become subject to another 10% on top of the first 10%.

When lack of compliance is kicking them in their power structure, they'll give in. And if not, well, at least our taxes will go down.
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tqk (profile), 3 Feb 2016 @ 6:02pm

... as it's convinced the prolific FOIA filer will "trick" it into revealing stuff it doesn't want to with multiple, overlapping FOIA requests.

If I were a lawyer employed by the FBI, I'd be getting a bit nervous at this point. It sounds to me like their bosses don't think they're getting their money's worth out of them.

Yo, FBI, hire better people and train them better. High priced doesn't necessarily mean good or better, as any Grisham novel could teach you. Oversight's a good thing too. If they're getting your money, you deserve to know what they're doing and whether they're any good at it. I suspect some, at least, are slacking. All that gets you is bad PR.
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tqk (profile), 3 Feb 2016 @ 6:19pm

Re: Re: Re: No punishment = No incentive to comply
3. (for extra points) start prosecuting and jailing the feds for any violations of local law that might turn up in the course of those search.

No prosecution necessary. A judge can use contempt of court to lock anyone away forever. Problem solved. Beg for forgiveness, promise acts of contrition, and maybe we'll let you out. Let's hope knuckle-dragger didn't make you his SO before we get back to you.
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tqk (profile), 3 Feb 2016 @ 6:28pm

Re:
Did you really expect anyone to read that blob? Ever heard of paragraphs and line breaks? They're used to keep discrete concepts separate from each other, making it possible to ingest one at a time. It enables readers to think about them. You couldn't be bothered? Then why would I bother?

Or were you just spewing and not caring what anyone did with it? Thought so. No thanks.
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tqk (profile), 3 Feb 2016 @ 6:45pm

Re: Corruption in general
And with this conclusion, it is obvious that we now have a tyrannous government. It has been for way too long (2 terms) that this BS has been going on.

No, Eisenhower's exit speech warned us it was still alive and well. That was in '61, when I was seven years old.

I'd argue it goes a lot further back than even that. We're just seeing the modern effects of it. Imperial Rome, ancient Greece, Persians, Babylon, and the Egyptian Pharaohs, and even Ethiopians and Sudanese helped with the design. That's just the west, of course. Comparable stuff was going on all over in Asia too in parallel. It's called the human condition I think.
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tqk (profile), 3 Feb 2016 @ 7:12pm

Re: No winners here
So on one side, an agency with a guilty [conscience]. On the other side, a professional process abuser.

You appear to believe that gov't is an actual living being with rights. Weird! It's a machine we created and own and use because we hope to benefit from leveraging that power to the betterment of *our* ends. Why should anyone want to care what it thinks about it? It's just a machine!

Who created the process that Shapiro's "abusing"? Who has the power to fix that if it's being abused?

We have a right, and the duty, to ensure this Frankenstein monster we've created is working for the benefit of all, and we have the duty to ensure it's not running out of control. That's what Shapiro's trying to do. Do you believe he gains some perverse pleasure from having to do this?

You feel for that monster's sensitivities and pains? Why?!? That's pretty strange from my point of view. Check your premises. Your target acquisition software is buggy.
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Justme, 3 Feb 2016 @ 10:51pm

punishment = ...
Putting criminal punishment on noncompliance will result in the invoking of their right's under the 5th amendment.

But on the bright side it will be fun to see their reaction when they realize that they no longer have any right, They been demolished by the F.B.I. :)
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Wendy Cockcroft, 4 Feb 2016 @ 5:46am

Re: Re: Re: Re: Re: No punishment = No incentive to comply
Good luck with that.
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