FOIA Advisor

FOIA News: FBI Can Withhold Sensitive FOIA Processing Records, DC District Court Rules

FOIA News (2017)Kevin SchmidtComment

FBI Can Withhold Sensitive FOIA Processing Records, DC District Court Rules

By Michael Linhorst, Lawfare, Mar. 9, 2017

Documents the FBI creates when it processes a FOIA request can be withheld from future FOIA requests in certain sensitive cases, D.C. District Judge Randolph Moss ruled on Monday.

At issue are “search slips” and “processing notes”—internal documents the FBI creates when it responds to FOIA requests. The court determined that those records may be withheld under FOIA’s Exemption 7(E) on a case-by-case basis when their release could allow a savvy FOIA user to create a “mosaic” that reveals information properly protected under the law.

This was the fourth opinion the court has issued in long-running litigation between the FBI and four FOIA requesters: Ryan Shapiro, Newsweek journalist Jeff Stein, the nonprofit National Security Counselors (NSC) and the news organization Truthout. The case, Shapiro v. Department of Justice, involves 58 FOIA requests filed by Ryan Shapiro, an MIT doctoral student, seeking information from FBI investigations into domestic terrorism activities by animal-rights extremists. The FBI gave him 42 “no records” responses, meaning that it told him no records existed that were responsive to his requests. Such responses are allowed in two circumstances: when there really are no records, or when the requested records fall into a narrow exemption in § 552(c) involving documents that could interfere with certain criminal law enforcement proceedings.

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