Judge Rudolph Contreras, of the U.S. District Court for the District of Columbia, gave PPSA a victory in our quest to compel the FBI to search and possibly produce correspondence between Members of Congress and agencies about their “unmasking.”
More than one year ago, PPSA filed suit to follow up on a Freedom of Information Act (FOIA) request asking the FBI to produce documents about the potential unmasking or identification of individual members of Congress whose messages are caught up in intercepts of foreign communications. We specifically asked for correspondence between House Members and Senators with federal agencies regarding unmasking. We also asserted that since the Gates Procedures – the method by which congressional identities are handled and can be deanonymized – are in the public domain, the FBI cannot issue a Glomar response, which neither confirms nor denies the existence of such records.
Judge Contreras denied this broader motion, saying it wasn’t relevant to the core request about acquiring correspondence. But he found merit with the other request about correspondence.
The judge wrote: “But there exists a separate category of documents: communications between the FBI and Congress that are a degree removed from FISA-derived documents and which discuss congressional unmasking as a matter of legislative interest, policy, or oversight … The FBI must conduct a search for any ‘policy documents’ in its possession.”
FBI attorneys had argued that the core of our request was for “operational documents” concerning congressional unmasking. Judge Contreras rejected that contention, noting there are not necessarily any law enforcement procedures, techniques, or guidelines “that would risk circumvention of the law … because acknowledging the existence of congressional inquiries would not necessarily reveal anything about the FBI’s operations.” Such policy documents are “well within the four corners of the FOIA request.”
If the FBI follows it traditional path and issues a Glomar response anyway, PPSA will be there to press further litigation. And we will report any findings with alacrity.