Judge Tells FBI To Explain Its Overly-Broad Use Of FOIA Exceptions

Legal Issues

from the Occupy-J.E.-Hoover dept

As we recently covered, a judge had ordered the CIA to explain its ridiculous FOIA response tactics. The CIA had, with a straight face, first claimed it could ONLY produce hard copies of digital files from an internal security journal. Then, it said the only way it could create digital files was by printing out the files and re-scanning them. The judge noted in her order that Congress recognized government agencies would be reluctant to hand over documents to the public, which is why it directed agencies to make every reasonable effort to accommodate requests. This, of course, was not what the legislators had in mind when they crafted the Freedom of Information Act.

Now, it’s the FBI being asked by a judge to explain its overuse of FOIA exemptions to withhold documents. This time, it’s the (in)famous Ryan Shapiro suing our government for access to information. Shapiro is well-known by the FBI, which has attempted to shut down the prolific requester by simply refusing his FOIA requests. It justifies this violation of the FOIA by claiming (somewhat accurately) that Shapiro is utilizing a “mosaic” method to gain access to information the FBI clearly wants to keep hidden. The theory is that with enough overlapping requests, responses will turn up either different documents or inconsistent redactions, thus revealing potentially sensitive information.

Shapiro currently has six open FOIA-related lawsuits (five vs. the DOJ and one vs. the CIA). This one, originally filed in April of last year, centers on Occupy Houston-related FBI documents.

Specifically Shapiro asked for FBI records about “a potential plan to gather intelligence against the leaders of [Occupy Wall Street-related protests in Houston, Texas] and obtain photographs, then formulate a plan to kill the leadership [of the protests] via suppressed sniper rifles…”

Shapiro said he wanted the records for his doctorate work, and that he intended to release urgent info about Occupy Houston to the public.

The FBI found 17 pages of pertinent records, gave Shapiro five of them, with some information redacted, and withheld 12.

The FBI has filed to dismiss, stating that it did a “thorough” search for responsive documents and released all non-exempt papers. But the judge didn’t buy every argument the FBI made, questioning its use of an exemption that excludes “records or information compiled for law enforcement purposes.” (“Law enforcement” being #2 on the FBI’s To Do List [following “national security”] would seemingly make every document the FBI “compiles” exempt if given a broad enough reading.)

“(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.”

Now, the FBI will need to prove to the judge that its exemption claim isn’t overly broad, possibly in an in-camera session considering the claimed sensitivity of the withheld documents. But as This Anonymous Coward pointed out on Twitter, a better question might be why the FBI was so interested in protecting the banks from Occupy protestors, rather than investigating the assassination threats against Occupy leaders. Chances are, that question will go unanswered by the FBI, whether or not these documents are finally freed.

Filed Under: exemptions, fbi, foia, mosaic, redactions, ryan shapiro