Privacy SOS

Judge deals blow to FBI, DOJ secrecy over terror task force operations

Can the FBI keep secret the number of chairs it has in its Boston office? How about the number of investigations its local Joint Terrorism Task Force (JTTF) conducted in the year 2014, or how many parking spaces it reserves for its agents? No.

Despite the Bureau’s attempts to hide this information from the public, a federal judge today ruled that records about the Boston FBI’s budget, staffing, and investigations are not exempt from public disclosure. The ruling also pushes back against the federal government’s assertion that an agency doesn’t have to perform a search for records simply because it thinks another agency has similar documents, upholding a centrally important facet of FOIA law: if an agency possesses a record, that record is subject to public disclosure—no matter who produced it, and no matter which other government agencies might also have it. 

The ruling is an important victory for government transparency in the face of an increasingly secretive—and powerful—law enforcement and intelligence apparatus, and a repudiation of what amounted to an FBI attempt to exempt all law enforcement information from public scrutiny.

The law enforcement exemption is not a get out of FOIA free card for the FBI

Today’s ruling deals a blow to unjustifiable secrecy surrounding counterterror operations at a time when the JTTF’s activities are producing controversial prosecutions and uncomfortable headlines nationwide. In her seventeen page opinion, U.S. District Court Judge Allison Burroughs—herself a former US Attorney—ruled that the FBI improperly invoked Exemption 7(E) of the FOIA statute, the law enforcement exemption, to justify withholding budgetary, staffing, and investigatory statistical information.

In response to our records request, the FBI claimed that basic information about the Massachusetts JTTF including the number of agents on its staff and details about its supplies, overtime policy, and budget were exempt from disclosure pursuant to Exemption 7(E) to FOIA. Judge Burroughs disagreed: “The Court finds that the FBI has not satisfied its burden of demonstrating that Exemption 7(E) applies to these staffing and budget materials.”

She then explains why the FBI’s invocation of the law enforcement exemption doesn’t fly:

The FBI has not made the threshold showing that the withheld information, none more recent than 2014, would disclose “techniques and procedures” for law enforcement investigations or prosecutions. These historic, generic staffing and budget information withheld by the FBI, such as the number of parking spots allocated to the Massachusetts JTTF or the maximum overtime pay, does not disclose how the Massachusetts JTTF actually goes about investigating crimes. As Judge Scheindlin of the Southern District of New York recently observed, “[t]he terms ‘techniques’ and ‘procedures’ refer to specific methods of law enforcement, not policy and budgetary choices about the assignment of personnel.”

Likewise, Judge Burroughs ordered the FBI to disclose the total number of open investigations at its Boston office on a particular date in 2014—information the Bureau had redacted in its response to the ACLU. Unfortunately, the court also held that more granular information about those investigations—specifically, how many suspicionless assessments, preliminary investigations, and full investigations the Boston FBI office conducted—is exempt from disclosure and was properly withheld. That information, Judge Burroughs ruled, “shows what activities trigger a full investigation as opposed to a preliminary investigation or assessment, as well as what types of cases the FBI is focusing on.”

Judge: Yes, the US Attorney’s Office has to follow the law, too

The lawsuit resulting in today’s ruling originated from identical December 2013 ACLU FOIA requests to the Boston FBI and the Massachusetts US Attorney’s Office seeking, among other documents, records about the structure, purpose, size, and budget, and statistical information about the investigative activity of the Massachusetts JTTF. By April 2014, neither the FBI nor the US Attorney’s Office had produced a single document, so we filed suit. In July of that year, the ACLU and the FBI agreed to a timetable for release of the records.

The US Attorney’s Office, for its part, claimed that because its records concerning the Boston JTTF would likely be identical to those held by the Boston FBI office, it wasn’t even required to perform a search of its own records for responsive documents. The FBI would do it, the DOJ argued, and so the USAO didn’t need to. We pushed back against that untenable and dangerous claim, and we won. Judge Burroughs held that the FBI and USAO are both subject to DOJ regulations governing responsibilities under FOIA, and “therefore each has independent obligations to respond to FOIA requests.”

Why this ruling matters

When Congress wrote the Freedom of Information Act, it intended to “pierce the veil of administrative secrecy and to open agency action in the light of public scrutiny.” The exemptions to the law were meant to be narrowly applied. But in the nearly fifty years since FOIA went into effect, law enforcement agencies have stretched one particular exemption—7(E), known as the law enforcement exemption—far beyond those narrow limitations, using it as a reflexive secrecy shield to block public access to all kinds of information.

Today’s ruling is a major victory in three ways. First, a court has ordered the FBI to disclose important information about its operations, including how it spends taxpayer money in Boston and how many investigations it conducted in 2014. Second, it sends a strong message to the FBI that they cannot seek a categorical exemption simply because they happen to be a law enforcement agency. Third, it shows government agencies can’t play a shell game with FOIA by refusing to even search for records if they think another agency might also possess them.

Stay tuned for more information about this lawsuit, including the documents we sued for—without the improper redactions.

© 2018 ACLU of Massachusetts.