NSA Tries To Stonewall Jason Leopold's Requests Because He's A 'FOIA Terrorist' Who's Paid To 'Deluge Agencies' With Requests

from the barely-partially-true dept

Journalist Jason Leopold (currently in residence at Buzzfeed) has been given the nickname “FOIA terrorist” for his numerous requests and almost as numerous FOIA lawsuits. The government has taken notice of Leopold’s activity. The Pentagon once offered Leopold a stack of documents in exchange for him leaving it alone. (He declined.) The FBI played keepaway with James Comey talking points, telling Leopold they were all exempt from disclosure. This obviously wasn’t true, as these same talking points had been handed over to Mike Masnick by the agency months prior to the bogus denial it gave Leopold.

Now, it’s the NSA using Leopold’s “FOIA terrorist” nickname against him. (This is weird because federal employees gave Leopold the “terrorist” nickname. He didn’t come up with it himself.) In Leopold’s ongoing FOIA lawsuit against the agency, the NSA has asked for an “Open America” stay. What this would do is push Leopold’s request back in line with the others the NSA has received. The agency argues that Leopold’s decision to file a lawsuit over the agency’s lack of a timely response shouldn’t give his request precedence over FOIA requests that arrived before his did.

The agency points out its FOIA workload has increased significantly since “a former NSA contractor began a series of unprecedented, unauthorized, and unlawful disclosures” in 2013. The agency still processes thousands of FOIA requests a year, but it’s unable to keep up with the increase in FOIA traffic.

What the NSA wants is more time. Three of Leopold’s requests — two of them dating back to 2014 — are at the center of this lawsuit. The NSA wants to prevent Leopold’s lawsuit from letting him jump the queue. From the filing [PDF]:

Given NSA’s limited number of FOIA personnel, if the Court orders defendant to process plaintiff’s requests at a rate greater than 400 pages per month, the individuals who filed the 1,603 pending requests in NSA’s current backlog, many of which were filed well before plaintiff’s, will be disadvantaged.

It also wants to process no more than 400 pages per month for him, despite there being more than 20,000 responsive pages.

In defense of its attempt to keep Leopold from litigating his way to the front of the line (and for delaying its already-delayed responses even further), the NSA attempts to use Leopold’s press bio against him.

[P]laintiff Jason Leopold is “a self-styled ‘FOIA terrorist’” who, according to a recent press release by his new employer, BuzzFeed.com, makes his living “by deluging the federal government with Freedom of Information Act requests.” He proudly claims to have “brought more FOIA lawsuits by himself than any other news organization except the New York Times.”

Again, Leopold may be a “self-styled” FOIA enthusiast, but the government called him a “terrorist” first. And, again, the number of lawsuits means nothing. If the government replied in a more timely fashion, withheld fewer documents, and generally made a better effort at being transparent, it’s unlikely Leopold would be chasing every FOIA request with a FOIA lawsuit.

While I agree with the NSA FOIA requesters shouldn’t be able to use litigation to move their requests ahead of others (who may not have the financial means to engage in litigation), the fact is without litigation, most government responses would be delayed indefinitely. Agencies are statutorily required to respond within a certain time period. After that time has elapsed, the only option in most cases is to bring a lawsuit. Periodically reminding the agency about your outstanding request has almost zero motivational effect.

Handing out litigation stays doesn’t mean requesters who haven’t filed a lawsuit will be receiving faster responses. All it means is litigating requesters will be receiving their responses more slowly. The NSA’s inference that Leopold’s requests are somehow less legit simply because there are so many of them is bogus. I’m sure Leopold would rather have faster request fulfillment than the double-duty of tracking dozens of open requests and multiple concurrent FOIA lawsuits.

If the problem is staffing, there are solutions available — but agencies have to want to be more responsive, not just shrug their way through FOIA lawsuit filings complaining about how impossible it is to keep up. They have direct lines to the legislators that pass their budgets. If they really wanted to do more, FOIA-wise, they’d have asked for more help already.

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Comments on “NSA Tries To Stonewall Jason Leopold's Requests Because He's A 'FOIA Terrorist' Who's Paid To 'Deluge Agencies' With Requests”

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22 Comments
TechDescartes (profile) says:

Not Secure Agency?

Leopold’s first request is telling:

…disclosure from the National Security Agency Office of Inspector General a copy of the concluding document report of investigation, final report, closing memo, referral letter) concerning investigations closed in calendar year [sic] 2013 and 2014 concerning misconduct, actual or alleged.

The motion then states: "By email on September 26, 2014, plaintiff
responded that he was willing to narrow his request to only
investigations with findings of misconduct," to which the NSA found "approximately 8,488 pages of potentially responsive documents." The motion talks about all of the steps they have to go through, including redacting classified information. The requested relief is to have until September 2017 even to begin producing and then only to produce 400 pages per month. So, processing of this request wouldn’t even finish until July 2019, not to mention the other requests.

If I were the judge, I would demand to know from the NSA:

  • How many "documents" are at issue, not the meaningless number of "pages" (a badly formatted Excel document can run hundreds of "pages" but it is just one document).
  • How many "investigations" had findings of misconduct?
  • How many of those investigations actually involved "classified" information?

If this is all time-card fraud, vacation fraud, and the like, there’s nothing classified. Turn it over now. But if the reason the NSA needs all this time is for its double-layer-classified-information-redaction sausage making, then that means there was misconduct that involved classified information.

So, NSA, pick your poison: cough up the documents because it’s no big deal or ask for time because you are admitting that your organization has a problem handling classified information.

Ninja (profile) says:

Re: Not Secure Agency?

“By email on September 26, 2014, plaintiff responded that he was willing to narrow his request to only investigations with findings of misconduct,” to which the NSA found “approximately 8,488 pages of potentially responsive documents.”

8488 pages of potential misconducts. This is rather telling about the agency.

Ninja (profile) says:

I agree his requests shouldn’t be prioritized. Instead the judge should tell the NSA to shut up, respect the law and hire goddamn employees to deal with the added load if needed. The public must be served accordingly. And the NSA does a piss poor job in almost many other aspects (such as respecting the Constitution) aspects to be complaining like that.

Anonymous Coward says:

Re: Re: Re:

And they’re legally required to respond to FOIA requests. They’re not required to spy on Americans, and they still have lots of employees doing that—so there are lots of people they can redirect to FOIA work. (If the reduction in illegal spying annoys congress, they can increase the budget next year.)

Anonymous Coward says:

Re: Re:

“Instead the judge should tell the NSA to shut up, respect the law and hire goddamn employees to deal with the added load if needed.”

I agree.

I know that working for a government organisation that it’s not that easy to just hire more staff. Often a manager can’t just go “I need 4 more staff, I’ll just put the employment ad in next weeks paper and post it on our website”. It can take months to get approval to hire more staff, the wording of the job advert, going through the interview process, and so on. It could easily take a year.

However, they have had that time to hire more staff. It’s been 2 and a half years since the agreement to reduce the FOIA request to the ~8k pages, let alone since it was originally filed.

Therefore now, 2 1/2 years later, the “don’t have the staff” argument holds no water.

Anonymous Coward says:

I’ll quote myself from before: Terrorist = someone the government doesn’t like. The government doesn’t like Leopold making all these FOIA requests, so calling him an “FOIA terrorist” is completely reasonable.

Expect the following to also be called terrorists soon: The White House leaker(s), media organisations, China, the countries banned from immigration, the citizens of those countries, Democrats, Wikileaks and anything/anyone else the government doesn’t like.

(In case it’s not obvious: this post is intended to be sarcastic and show how the label terrorist has almost lost its meaning with how it’s applied so frequently.)

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