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A “Victory” in My FOIA Lawsuit Against the FBI

(Photo: kalavinka; Edited: JR / TO)

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Founding director of the Department of Justice’s (DOJ) Office of Information Policy calls FBI actions “an embarrassment of major proportion.”

Nearly four years after changes to the Freedom of Information Act (FOIA) went into effect, the FBI, in response to a lawsuit in which I am a co-plaintiff, said the bureau would now begin to abide by a little-known provision in the law that requires all government agencies, when asked, to provide estimated dates of completion to records requesters.

Last February, the Arlington, Virginia-based public interest law firm National Security Counselors, and I sued the FBI and other government agencies for refusing to provide us with estimated dates of completion on our FOIA requests.

In a declaration filed June 21 with the US District Court for the District of Columbia, David Hardy, the head of the FBI’s FOIA office, known as the Records Information and Dissemination Section or RIDS, said, “as part of the review of the history of its actions in response to plaintiffs’ requests for estimated dates of completion, I issued a policy memorandum to all RIDS personnel dated June 18, 2012, reiterating the statutory obligations to provide FOIA requesters with estimated dates of completion when prompted for this information.”

The FBI’s FOIA office “has begun to provide estimated dates of completion upon request and will continue this practice so long as the FOIA requires such,” Hardy admitted. (Emphasis added.)

Additionally, Debra Steidel Wall, the deputy archivist at the National Archives and Records Administration (NARA), and John Hackett, the chief of the Information and Data Management Group in the Office of Director of National Intelligence (ODNI) who oversees the agency’s FOIA process, defendants in my lawsuit, also issued new policy memos to their FOIA staffers last month in response to the litigation, reminding them of their obligation under FOIA to provide records requesters with estimated dates of completion as the law began requiring four years earlier.

Kel McClanahan, the executive director of National Security Counselors, the attorney handling our case, said the memoranda issued by Hardy, Wall and Hackett amounts to a “victory” for us and for all FOIA requesters.

“Before we filed suit, the FBI, NARA, and ODNI refused to give us estimated dates of completion,” McClanahan said. “We asked the court to order them to do so and to implement policies guaranteeing as much. They voluntarily reversed their position and implemented new policies that are consistent with FOIA. We no longer have any further argument with these three agencies.”

McClanahan is especially pleased with NARA’s new guidelines, which he said are “just the kind of policy I think every agency should have.”

“I think it’s fantastic,” McClanahan said. “It gives FOIA analysts clear guidelines in plain and simple language, splitting the difference between micromanagement and allowing so much discretion that any analyst is free to adopt any idiosyncratic interpretations of the law he wants. I think [the DOJ’s Office of Information Policy (OIP), which was responsible for implementing the 2007 amendments to FOIA] should adopt something close to [these guidelines] as its official ‘best practice’ for” providing requesters with estimated dates of completion.

McClanahan declined to comment on his position regarding the government’s arguments related to the remaining agencies we filed suit against, which includes the CIA, the Department of Defense, the Department of Energy and the Department of the Treasury, stating that he is “taking the matter under consideration.”

The government has argued those agencies should not be part of the case as we did not submit FOIA requests directly to them.

Agencies Balked

As an investigative journalist who relies heavily on FOIA in order to report news stories (such as this), it is extremely important that I have a general idea of when I can expect to receive records responsive to my FOIA requests so that I can plan my coverage accordingly.

Prior to the passage of the Open Government Act by Congress in 2007, however, it was not possible to obtain estimated dates of completion or other information from government agencies for FOIA requests.

So, Congress added two important provisions into the law that, first, required government agencies “to assign an individualized tracking number to requests that will take longer than ten days to process.”

Secondly, the law required government agencies to establish “a telephone line or Internet service that requesters can use to inquire about the status of their requests using the request’s assigned tracking number.” The latter includes requests for estimated dates of completion. The OIP issued guidance to government agencies advising them of the new provisions, but did not take further steps to place policy emphasis on implementation of their requirements.

Indeed, Hackett, the head of ODNI’s FOIA office, said in a June 29 declaration that ODNI “does not have a specific policy practice or standard operating procedure on how to provide FOIA requesters with estimated dates of completion …”

However, Hackett added his office has “strived in the past” to adhere to OIP’s guidance, which says that if a government agency does not know how to respond to requests for estimated dates of completion because, for example, it is still conducting a search for records, the agencies “should make a reasonable judgment as to when they believe processing will be complete, based upon what remains to be done in a given case and in light of the agency’s experience with processing similar requests.”

“The important point is that the agency and the requester are able to communicate easily regarding the status of a request,” the guidelines say.

But, as McClanahan noted, certain government agencies, such as the FBI, have thumbed their noses at the law since the changes went into effect on December 31, 2008, and have routinely balked at providing estimated dates of completion to requesters, without any effective oversight from OIP, which is why McClanahan and I sued.

“The underlying problem here is the Justice Department’s inexplicable failure to properly implement the provisions of the 2007 FOIA Amendments – both externally, as a matter of good government-wide policy administration, and internally, within a key component such as the FBI,” said Daniel J. Metcalfe, the executive director of Collaboration on Government Secrecy at American University’s Washington College of Law and the founding director of OIP, in an interview with Truthout. “Simply put, the statute has for more than four years now required that completion-time estimations be given, either through FOIA Requester Center phone service or through a properly functioning Web site mechanism, and the FBI’s sustained systemic failure to comply with this basic requirement is an embarrassment of major proportion.”

Metcalfe, who founded OIP in 1981 and served as its director until 2007, added, “Such a thing never would have come even close to occurring in years past, and the officials involved now ought to hang their heads in shame.”

The failure by some government agencies to provide requesters with estimated dates of completion was not a minor offense. It was, as the FOIA Ombudsman warned in a blog post two weeks before McClanahan and I filed our lawsuit, “litigation invitations.”

As I previously reported in a story about the lawsuit, I sought an estimated dates of completion from the bureau last December for two separate FOIA requests I had filed in April and September and the FBI refused to provide me with the information.

I did not state it in my report, but at the time I requested the estimated date of completion I was working on an investigative story, which has since been published, about Hesham Abu Zubaidah, the younger brother of Zayn al-Abidin Mohamed Husayn, better known to the world as the high-value Guantanamo detainee “Abu Zubaidah,” whom the US government has for more than a decade claimed (and since recanted) was “one of the highest-ranking members of the al-Qaeda terrorist organization” and was “involved in every major terrorist operation carried out by al-Qaeda,” including the 9/11 attacks.

Hesham had been living in the US since 1998 and was interrogated routinely by the FBI about his brother while detained by immigration authorities immediately after 9/11. Years later, Hesham was recruited by an agent in the FBI’s Portland field office to work as a confidential informant. He said the agent, L. Diane Gray, led him to believe the bureau could help him obtain a green card in exchange for spying on mosques in Portland.

Hesham authorized me to file a Freedom of Information Privacy Act (FOIPA) request with the FBI seeking his entire case file from the bureau, which I did in April 2011. But eight months went by and I had not received any responsive records, although I was informed in September 2011 after I queried the bureau about the status of my FOIA that a “disclosure analyst” was reviewing the file.

A month earlier, in August 2011, after informing me that the bureau was searching for responsive records, the FBI took the unusual step of sending a special agent out to Hesham’s house to speak with him about my FOIA request. I subsequently filed a separate FOIA request for records related to the meeting that took place between Hesham and the special agent, in which the special agent identified me by name. Eight months later, the FBI produced three redacted pages.

But in December 2011, still unaware about the status of both FOIA requests I had filed, I sent David Sobonya, the FBI’s public information officer, an email requesting estimated dates of completion.

Sobonya responded to my email by stating, “due to the voluminous requests that the FBI receives on a daily, weekly, monthly and annual basis a specific time frame for completion cannot be provided.”

I sent Sobonya another email and cited the section of the law, as amended, that required him to provide me with an estimated date of completion. Sobonya responded to that email by inadvertently sending me a note addressed to “Denny” that was clearly intended for Denny Argall, the FBI’s public liaison officer.

“I feel this will be the new trend,” Sobonya wrote about my request for estimated dates of completion. “The assigned disclosure analyst advised that an estimated date for completion cannot be provided. How do you wish for me to respond?”

The new “trend,” as Hardy stated in his declaration and in a policy memo, is the FBI’s “legal obligation under the FOIA.” Argall, as it turns out, was identified in Hardy’s new policy memo as one of the individuals FBI FOIA staffers should seek guidance from if they have any questions about providing requesters with estimated dates of completion.

It took seven months to obtain the information, but Hardy now says the bureau “estimates it will complete [my] request on or about October 5, 2012.”

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