DOJ Tells Me It Can't Find Any Internal Guidelines For When It Seeks Gag Orders For Subpoenas

from the difficult-to-believe dept

Earlier, I wrote about how I sent two FOIA requests over the bogus gag order that Assistant US Attorney Niketh Velamoor obtained to silence Reason.com about the bogus subpoena he sent to identify some rowdy commenters. The two FOIA requests were for: (1) the original application for the gag order and (2) any DOJ guidelines on when to apply for a gag order.

As we noted, I just received a response to the first FOIA request, in that I was told the DOJ could find no responsive documents. That seemed quite bizarre, given that just a few weeks earlier, the DOJ itself had released exactly that document and it appears to match up exactly with what I asked for in my FOIA request.

The DOJ also responded to my second request and -- guess what? -- it's the same damn thing. Yup, the DOJ says it has no responsive documents for any guidelines on when to seek a gag order on a subpoena.
Now, this seems to suggest two possibilities -- neither of them particularly good. (1) As with my first FOIA request, the folks at the DOJ FOIA office are simply bad at their jobs (whether on purpose or not) and are simply not finding the document that does exist or (2) the DOJ really doesn't have any guidelines for when it should seek a gag order. Neither of these situations are reasonable.

If the first is the case, and we have evidence of that based on the other FOIA response, then the DOJ needs to overhaul its FOIA efforts to actually align with the law itself, which requires them to provide responsive documents. The fact that it's bad at its job (again, on purpose or not) runs counter to the letter and spirit of the law and should be fixed.

If the latter is the case, then that's also a serious problem. A gag order in a legal proceeding should only be used in very rare circumstances, and given the fact that this particular gag order was granted based on almost nothing, rubber-stamped by a judge who didn't seem to care about the details, the DOJ really ought to have some fairly detailed guidelines that need to be followed before some kid working in the US Attorneys' office can try to hide what he's doing out of embarrassment (as appeared to be the case here). I will be asking the DOJ to explain this lack of guidelines and will continue to report on what it has to say.

Filed Under: doj, foia, gag order, guidelines
Companies: reason


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  • identicon
    Baron von Robber, 20 Aug 2015 @ 9:53am

    They use the MIUAYGA process.
    Make It Up As You Go Along(tm FBI)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2015 @ 10:13am

    Good one

    Good one.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2015 @ 10:24am

    Congratulations Mike

    You have personally made it onto the DOJ's "We have a hunch you might be trouble" No-FOIA list.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 20 Aug 2015 @ 10:24am

    There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.

    Similarly, I've tried to find or get stated guidelines here at Techdirt on the "Censor" -- I mean "Report" button of which the fanboys are so fond to hide opinions they don't like, how many clicks it takes to censor, I mean hide, and/or whether the censoring, I mean hiding, is approved by an administrator and/or an alleged "moderator" which presumably would judge by some criteria. No answer at all. Should I infer that Techdirt is hiding those relevant details besides its policy because too dirty to be made public?

    reply to this | link to this | view in chronology ]

    • icon
      OldMugwump (profile), 20 Aug 2015 @ 10:43am

      Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.

      Techdirt commenters are part of a voluntary community.

      If you don't like TD's policies, you're welcome to go elsewhere, or start your own.

      Governments don't work that way. They claim and enforce an monopoly on power. The level of scrutiny required is different.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Aug 2015 @ 11:26am

      Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.

      Is that really the best you came up with? Disappointing.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Aug 2015 @ 11:43am

      Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.

      Well, you got a report from me, so there's one.

      reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 20 Aug 2015 @ 2:30pm

      Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.

      Similarly, I've tried to find or get stated guidelines here at Techdirt on the "Censor" ...

      Why, so you can find a way to game it? WTF do you care? If it's so offensive to you, go somewhere else, somewhere that appreciates your timeless wisdom and deep insight.

      Or, be like the rest of us and try to learn from what others offer. Nobody's forced to agree with anything here, other than be civil, respect the views of others even when you disagree with them, and try not to look like someone's paying you to astroturf and bludgeon others into agreeing with your viewpoint. That doesn't actually work, you know?

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 21 Aug 2015 @ 9:44am

      Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.

      "to hide opinions they don't like"

      It's very cute how you proclaim this to be the reason for reports rather than the actual reasons of being abusive, offtopic, or spam.

      reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 20 Aug 2015 @ 10:50am

    Transparency is anathema.

    ... then the DOJ needs to overhaul its FOIA efforts to actually align with the law itself ...

    My first thought was, "Ha, hahahahahaha!"

    However, based on other articles I've read (including here), they've apparently been intentionally doing the opposite of what you suggest. It's not uncommon for FOIA filers to have to file multiple times, specifying exactly which database the info would be found in, none of which are named or advertised outside the agency in question.

    The DoD hates the 1st Amendment & Freedom of the Press, most agencies despise FOIA, and the president himself has nothing but contempt for whistleblowing.

    I see a pattern at work.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 20 Aug 2015 @ 11:05am

      Re: Transparency is anathema.

      I just had an idea. Charge the gov't with obstruction of justice. Even if it doesn't work, it might create PR benefits when it's on the six o'clock news.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2015 @ 11:00am

    The DOJ asking for a gag order is self interest and therefore somewhat understandable. If the courts won't even decline these unsubstantiated requests because judges view themselves as part of "law enforcement" rather than impartial arbiters then no changes to laws, FOIA or otherwise are going to make any difference.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2015 @ 11:11am

    Dear Masnick:

    Whenever we gd feel like it.

    Yours,
    DOJ

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2015 @ 12:00pm

    Read between the lines

    ...a search has been conducted of the electronic database of the Departmental Executive Secretariat, which maintains certain records of the Offices of the
    Attorney General and the Deputy Attorney General records. and no records responsive to your
    request were located...



    That means the requested information is not in the electronic database, or is not within the named departments, or is not being maintained.

    (I'm sure others can come up with better excuses than I can.)

    reply to this | link to this | view in chronology ]

  • icon
    Votre (profile), 20 Aug 2015 @ 12:02pm

    Why does that surprise you? What guidelines do you need when your primarily motivations for obtaining one are petty spite and caprice?

    Guidelines would only interfere with the freewheeling DOJ culture we've come to know and love post 9/11.

    reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 20 Aug 2015 @ 12:13pm

      Re:

      Guidelines would only interfere with the freewheeling DOJ culture we've come to know and love post 9/11.

      Post 9/11? Awfully optomistic there...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Aug 2015 @ 12:37pm

      Re:

      this shit has been happening since before, while 9/11 only ratcheted some of it into overdrive.

      reply to this | link to this | view in chronology ]

      • icon
        Votre (profile), 21 Aug 2015 @ 11:13am

        Re: Re:

        Yeah. We all know that. But I cited post-9/11 as an arbitrary starting date because that's when it began to take place on a widespread basis with absolutely no fear of any possible repercussions or risk of being held accountable.

        Ain't "National Security" a grand thing?

        reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 20 Aug 2015 @ 5:20pm

    Guidelines? Guidelines?!

    We don't need no steenking guidelines.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2015 @ 8:19pm

    Nothing new here

    Long ago (early '80s) I met a rather aged lady, mother of a friend. Long before that, she had worked in a DoD film archive, somewhere out in the desert in California. Every morning the staff would catch the bus out to the site, and were supposed to respond to requests for film records, searching through the vault for films that had been requested by whoever was looking for them.

    Some of the staff members would spend all day rummaging through the vaults looking for exciting films (those of Col. Stapp taking rocket sled rides were particularly prized). Fifteen minutes before the bus was to leave they would go to their desks, take everything in the "IN" box, write "No record" on the request, and drop the forms in the "OUT" box.

    So she told me then, anytime you write a government office and ask for something, if it comes back "no record" always ask again, and hope that this time it lands on the desk of someone who is actually doing his job.

    My guess is that the odds of finding a conscientious government worker at the US Attorney's office of Southern District of New York in 2015 are substantially lower than the odds of finding one at a DoD film archive in southern California in 1955. So the fact that you got a "no record" for something that obviously exists is not particularly surprising.

    reply to this | link to this | view in chronology ]


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