The Project for Privacy and Surveillance Accountability today filed a federal lawsuit against the Department of Justice and the FBI for their failure to make a lawful response to a Freedom of Information Act (FOIA) request for records in relation to opinions issued to the Bureau by two secret courts.
On June 28, PPSA submitted a FOIA request seeking decisions, orders, and opinions from the Foreign Intelligence Surveillance Court (FISC), and its superior, the Foreign Intelligence Surveillance Court of Review (FISCR). PPSA also requested agency records concerning regulations, policies, training, and clearance levels for individuals with access to FISC and FISCR opinions. The FBI took two swings at responding to PPSA’s request, missing the ball each time.
In its first response, the FBI refused to conduct any searches for court opinions because, it claimed, “the above referenced subject is not searchable” in one particular FBI index – the Central Records System – ignoring the fact that the FBI maintains several other databases for storing records. The FBI simply refused to consider those locations, explaining only that its Central Records System “is not arranged in a manner that allows for the retrieval of information in the form you have requested.”
“In other words, the Federal Bureau of Investigation – which submits surveillance warrants for Americans under Title I of the Foreign Intelligence Surveillance Act before FISC – said with a straight face that it cannot locate court opinions that directly concern it,” said Gene Schaerr, general counsel of PPSA. “Even Inspector Clouseau would be embarrassed by a response like that.
“Since when does locating easily identifiable records – including judicial decisions the FBI is bound to read and obey as drafted – become such an overwhelming burden?” Schaerr said. “The FBI is being facetious.”
In the FBI’s second response, responding to the request for policies governing who within the FBI has access to FISC decisions, the Bureau completely ignored its statutory obligations under FOIA. Although FOIA requires the FBI to search for all responsive records, the FBI stated that it stopped looking for any records after locating the first record – a heavily redacted document, “Foreign Intelligence Surveillance Act and Standard Minimization Procedures Policy Guide.” According to the FBI, that “fulfilled” its obligation. Today’s lawsuit that PPSA filed in the U.S. District Court of the District of Columbia demonstrates otherwise.
“We hope the court will see that the FBI is treating the FOIA statute as a shell game in which litigants will tire out and leave them alone,” Schaerr said. “We won’t leave them alone. We ask the court to demonstrate to the Bureau that it is unacceptable to ignore even the minimum requirements of the law.”