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Truthout Files FOIA Lawsuit Against Department of Justice/FBI for Occupy Wall Street Documents

A finding that documents were improperly withheld would send a strong message to the DOJ office that denied Truthout’s appeal.

On October 6, Truthout filed a Freedom of Information Act (FOIA) lawsuit against the Department of Justice (DOJ) over the FBI’s failure to release documents we have sought pertaining to Occupy Wall Street (OWS).

The complaint was filed in US District Court for the District of Columbia. In addition to Truthout, Washington, DC-based attorney Jeffrey Light is also named as a plaintiff.

The FBI has received numerous FOIA requests for Occupy Wall Street-related documents since the inception of the movement in September 2011. Thus far, it appears the bureau has only released about a dozen pages of documents, and those were sent to the American Civil Liberties Union (ACLU) of Northern California in response to the organization’s own lawsuit against the FBI.

Those documents revealed that the FBI had been monitoring a Bay Area Occupy group and paid particularly close attention to protesters’ plans to shut down West Coast ports in November and December 2011. The FBI refused to turn over other records to the ACLU on national security grounds.

Truthout’s lawsuit stems from two FOIA requests we filed with the FBI on October 31, 2011, one by this reporter and another filed by Truthout associate editor Yana Kunichoff, during the height of nationwide OWS protests and what appeared to be a coordinated crackdown among federal and local officials and law enforcement on Occupy encampments in major cities.

Our requests sought a wide range of documents, including “emails, memos, audio/video, transcripts, reports, threat assessments” in which Occupy Wall Street was discussed by FBI agents and/or senior officials. Additionally, we asked for records regarding any correspondence the FBI might have had with local and state law enforcement officials.

Light filed a request for similar documents in mid-November 2011. Although the FBI said it was processing his request, he has yet to receive any records.

In Truthout’s case, the FBI, a DOJ component, responded to our FOIAs two weeks after it was filed by stating, remarkably, that it could not locate a single record on OWS.

However, as we reported last year, Jordan T. Loyd, a member of the FBI’s cybersecurity team in New York, received dozens of emails about Occupy Wall Street he was sent by a man who identified himself as a conservative computer security expert and gained access to the group’s listserv. Loyd responded to at least one of the emails. Moreover, OWS documents Truthout obtained under a FOIA request from the Department of Homeland Security showed DHS shared information on OWS with the FBI and other law enforcement agencies.

Truthout challenged the adequacy of the FBI’s search for records. We appealed the bureau’s “no records” response to this reporter’s FOIA request to the DOJ’s Office of Information Policy (OIP). However, our appeal was denied. OIP affirmed the integrity of the FBI’s search, which resulted in the “no records” response.

Curiously, the FBI sent a letter to Kunichoff in December 2011 alerting her that the bureau “has determined that potentially responsive documents exist” and said it was reopening her FOIA. But the bureau did not issue such a letter to this reporter, nor has the bureau, nearly one year after the letter was sent, provided Kunichoff with any records it may have located.

To try and understand how the FBI handled this reporter’s FOIA request, another FOIA request was filed with the bureau for processing notes, which, among other things, provides FOIA requesters with insight into how FOIA analysts conduct searches for responsive records. Processing notes were also requested in February for Kunichoff’s OWS FOIA, but the materials have not been produced.

The processing notes related to this reporter’s OWS FOIA suggest the FBI’s search consisted of typing the words “Occupy Wall Street” into the bureau’s “intranet.” Many of the Occupy groups, however, identified themselves by the names of the cities where they set up encampments, such as Occupy DC, on which Light requested records in addition to OWS in general.

“While an argument could be made that the earliest requested records would only be related to Occupy Wall Street itself (due to the fact that at the time of the request that was the term applied to all the movements), at worst that only accounts for three months of records out of the entire universe of requested records that cover August 2011 to the present,” Kel McClanahan, the executive director of National Security Counselors and the attorney litigating our FOIA lawsuit, said in an email.

Earlier this year, this reporter filed a new FOIA request with the FBI for OWS documents which was broad enough to cover all the Occupy movements.

“Any possible limitations on the scope of the first requests were definitively cured by the third request, which clearly indicated an interest in any records related to the Occupy movement writ large,” McClanahan said.

The FBI says it processed the FOIA but has still not produced responsive records.

Aside from demanding that the FBI immediately turn over records, our complaint also asks the federal court judge presiding over the case to “issue a written finding that the circumstances surrounding the Office of Information Policy’s affirmation of FBI’s search regarding the Leopold Request raise questions whether OIP personnel acted arbitrarily or capriciously.”

McClanahan said, “With any luck, this will trigger a finding that will result in meeting the criteria for Sec. (a)(4)(F)(i), which has never been done before.” The section of the Freedom of Information Act McClanahan is referring to reads:

Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

“Such a finding by the judge would be the first time any court has done so, and would send a very strong message to OIP (and appeal boards everywhere) that they must do more before affirming lackluster searches,” McClanahan added.

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