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.
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