Privacy SOS

“Blackballing” FOIA requests at the FBI is bad practice, says expert

Truthout's Jason Leopold ran a story yesterday detailing the FBI's process of "blackballing" FOIA requests. The process has benign reasons to exist, but appears to be used to inappropriately deny FOIA requesters the records they seek.

An FBI spokesman told Leopold what the term means:

"[B]lackball" is a term we typically use to describe a file (not a request) that initially looked responsive but upon review we find it's for a different guy or event. It can also be used to describe a file that we won't process because, i.e., a guy makes a request for his "FBI file" in 2005 and [we] process it for him. When he makes another request for his "FBI file" in 2011, we will only process his "records" but will not process the file that was created to respond to the 2005 FOIA request, which is 190 file series.

Makes sense, right? The FBI won't give you redundant files generated in response to prior FOIAs, or records that appear to match your search criteria but upon human inspection, are unrelated. Seems like a good practice. So what's the problem?

Leopold found that sometimes the "blackball" policy is used to deny records that are responsive to requests, and are not redundant. In other words, it is used to inappropriately deny records to people when those records should be released.

That's what Kel McClanahan, an Arlington-based public interest lawyer, told Leopold:

"If I could trust the FBI only to blackball things that were clearly non-responsive, I don't need to know that they found completely unrelated records," he added. "However, that's not what the FBI does. I have seen it blackball records because they 'weren't FBI records,' even though they were in FBI files (they were FBI copies of other agencies' records, which any FOIA person worth his salt knows are still responsive to a FOIA request made to FBI). I've seen it blackball records because the request asked for 'internal FBI records' and the records in question were sent outside of the FBI, based on a strained interpretation of the word 'internal.'"

Given the FBI's tendency towards secrecy and obfuscation in the FOIA process, we shouldn't trust that the FBI is using the "blackball" process fairly. After all, the agency has admitted to lying to the public — including to judges! — about our requests for some time now. 

Read Leopold's story here.

© 2021 ACLU of Massachusetts.