FBI Decides FOIA Doesn’t Require Search for More than One Document on Secret Court Opinions
In a new low for the FBI’s processing of Freedom of Information Act (FOIA) requests, the Bureau now states it believes it does not need to keep searching for records after locating a single potentially responsive record. This is contrary to both the FOIA statute and common sense. If the FBI were correct, every FOIA requester would be entitled to just a single record, and countless government activities would remain hidden from the public.
This is the latest disappointing response from the FBI. We recently reported that the FBI asserts – in response to our request for FBI records of opinions from the Foreign Intelligence Surveillance Court (FISC) and its court of review – that it cannot locate these court opinions on its revised computer system. As excuses go, this is a dog-ate-my-homework level of sophistication.
Now we’re forced to appeal the FBI’s non-response response to our FOIA request for information on all the Bureau’s records on FISC opinions.
The FBI’s hungry dog is still at work: they’ve responded to our request by also stating that it located a single record and then stopped searching. In the FBI’s mind, it “expeditiously” released “documents” that fulfilled PPSA’s request. But there were no “documents,” plural. The FBI produced only one document, with 40 pages of this one document redacted to the point of unintelligibility. And the FBI didn’t even try to find anything else. In our administrative appeal, PPSA told the FBI’s Director of Information Policy:
“Discontinuing a search after finding a single, previously-released record is evidence of a search that was not reasonably calculated to uncover all responsive documents. This is made clear by the FBI’s statement that PPSA could also request an ‘additional search for records.’ That is not PPSA’s job; PPSA already submitted a request for all responsive records.”
As for the redactions in this one document, PPSA has demanded that the FBI provide it additional information to justify the redactions. When an agency redacts an entire document, requesters like PPSA are at an obvious disadvantage in trying to challenge those withholdings. To recycle a famous legal quote, the government is “holding a grab bag and saying, ‘I’ll give you this if you can tell me what’s in it.’”
We fully expect the FBI to be disingenuous. But we are hopeful that the FBI’s Director of Information Policy will at least be embarrassed by the thinness of the FBI’s recent excuses.
The Project for Privacy and Surveillance Accountability today filed a Freedom of Information Act (FOIA) lawsuit against the Office of the Director of National Intelligence (ODNI) over the refusal of the government to turn over records concerning U.S. intelligence community purchases of the private digital data of American citizens.
The government’s stonewalling continues well past its failure to meet any of the deadlines required by the FOIA statute. It also flies in the face of a pledge made by Director of National Intelligence Avril Haines (1:17:05 mark) in her Senate confirmation hearings on Jan. 19, 2021. When Sen. Ron Wyden, (D-OR) asked about informing the American people about purchases of their data, Haines responded:
“I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.”
Haines further promised to provide transparency “so people have an understanding of the guidelines under which the intelligence community operates.”
In response, PPSA requested “all agency records created, altered, sent, or received in preparation for any public disclosure, as contemplated by Director Haines,” including:
The government acknowledged receiving PPSA’s initial FOIA request on June 2, 2021. PPSA inquired about the lack of a substantive response more than one year later. On June 23, 2022, ODNI responded: “we cannot speculat[e] on a specific response date.”
More than thirty business days later, after the ODNI failed to indicate whether it will fully comply with the FOIA request, PPSA decided to file suit.
“This is a golden opportunity for Director Haines to demonstrate that the intelligence community will live up to her promise to provide at least some transparency,” said Gene Schaerr, PPSA general counsel. “As Avril Haines herself stated, the American people deserve to know the circumstances in which the intelligence community purchases our personal data and the legal basis for doing so.
“Director Haines promises to ‘publicize’ that legal basis. I hope she does, instead of allowing her office to continue to stonewall.”
The Project for Privacy and Surveillance Accountability today announced the filing of a lawsuit in federal court against the National Security Agency, the Central Intelligence Agency, the U.S. Department of Justice, and the Office of the Director of National Intelligence, to compel the release of documents pertaining to the possible purchasing of the personal information of more than 100 current and former Members of the House and Senate Judiciary Committees from private data brokers.
The lawsuit, filed in the United States District Court for the District of Columbia, seeks records relating to data purchases of these current and former lawmakers that include Jerrold Nadler, Chairman of the House Judiciary Committee, Ranking Member Jim Jordan, Sen. Dick Durbin, Chairman of the Senate Judiciary Committee and Ranking Member Sen. Chuck Grassley. The list includes many leading lights of both parties, from current Vice President Kamala Harris to Florida Gov. Ron DeSantis, both former Members of Congress.
These government agencies responded over the summer 2021 to PPSA’s FOIA request with Glomar responses, a judicially invented doctrine that neither confirms nor denies that such records exist.
At the time, Gene Schaerr, PPSA general counsel, responded: “The government doesn’t want to even entertain our question. What do they have to hide?”
He added: “This troubling refusal gives all the more reason for Congress to pass the Fourth Amendment Is Not for Sale Act, which would ban such surveillance from purchased data. If Vice President Harris and Gov. DeSantis are potentially having their rights violated, imagine how little protection you and I have.”
Court Sets Sept. 15 for Oral Arguments in Appeal
Oral arguments in a federal lawsuit against six government agencies over their stonewalling about “unmasking” and surveillance of the 2016 presidential campaign and transition has been set for September 15.
The general counsel of the Project for Privacy and Surveillance Accountability had filed the appeal in January before the U.S. Court of Appeals for the D.C. Circuit. The lawsuit is challenging the refusal of the agencies to respond to its Freedom of Information Act (FOIA) requests seeking information on the surveillance of campaign and transition officials in the 2016 election.
The FOIA requests filed with the Department of Justice, the FBI, CIA, National Security Agency, Department of State and the Office of the Director of National Intelligence sought records regarding the unmasking and “upstreaming,” or the interception of internet communications, of people, including Members of Congress, who were affiliated with the Trump campaign and transition.
The agencies responded by issuing “Glomar” responses that refuse to confirm or deny the existence of such records.
Gene Schaerr, PPSA general counsel, who filed the appeal, said: “We ask the court to understand that judicial doctrine is being distorted into a cover-up of alarming misbehavior by the U.S. intelligence community. Americans deserve to know if our government has used its sweeping surveillance authority under the Foreign Intelligence Surveillance Act as a political weapon wielded against the campaign and presidential transition team of an opposing party.
“However you feel about the candidate in question, Donald Trump, what was done to him in 2016 can be done by an administration of either party in a future election,” Schaerr said.