Failures

by Mike Masnick


Filed Under:
delays, doj, fbi, foia



FBI Tells Me It Will Take 475 Days For It To Get Around To Responding To My FOIA Request

from the well-isn't-that-nice dept

The Freedom of Information Act (FOIA) requires that federal agencies respond to FOIA requests within 20 days. If it needs more information, the government agency is allowed to wait for you to respond and not count that against the 20 days. The law does provide for a situation where, "in unusual circumstances" the 20 day period can be extended with a specific notice explaining the "unusual circumstances," but "no such notice shall specify a date that would result in an extension for more than ten working days."

Back in April, I sent the FBI some FOIA requests concerning the FBI's public stance on encryption -- which is kind of a big deal right now, given that the FBI is giving mixed messages on encryption. Director James Comey is out there pushing the panic button over people encrypting their mobile phones, while older FBI recommendations suggested that encrypting your mobile phone could protect your information from those with malicious intent. So it seemed quite reasonable to find out what kinds of talking points the FBI had put together on encryption, as it seemed rather important to the very timely debate about whether or not tech companies should be forced to backdoor encryption.

I submitted the FOIA requests on March 27th. On September 10th -- which is 167 days later -- the FBI finally responded, telling me that it expected to get to my request about 300 days later, or approximately 475 days from when it was first submitted. It was addressed (typo-wise) to "God morning."
God morning,

We have received your request for an estimated date of completion. The search for records is ongoing or, the search has yielded responsive records and those records have been forwarded to the backlog, where it awaits assignment to a Government Information Specialist (GIS). Estimated dates of completion are based on the median processing time of large requests. Accordingly, the estimated date on which the FBI will complete action on your request is 475 days from the date of your request.

Please contact me if you require further assistance.

Thank you,
In other words, the FBI may finally get back to me sometime in the fall of 2016. While it's entirely possible that the debate about encryption will still be going on by then, it seems like this tidbit of information would be better served if it could be seen and debated by the public today rather than a year from now, when there's a good chance the crux of this debate will be over.

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  • identicon
    Anonymous Coward, 20 Oct 2015 @ 6:24am

    So, no time to deal with your request - but plenty of time to assign an abbreviation to a title, which then is never referenced again.

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

  • identicon
    Sam, 20 Oct 2015 @ 6:47am

    sue

    This delay violates the statute and is clearly "excessive", so it constitutes a denial in and of itself. So you can immediately file an appeal to the head of the FBI, and if you receive no response within 20 days, you can sue them in federal court. Since you cite a public interest in the timely resolution of the request, you can even move for the court to process the lawsuit expeditiously. See http://www.dmlp.org/legal-guide/what-are-your-remedies-under-foia.

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

  • icon
    Bergman (profile), 20 Oct 2015 @ 6:48am

    Time for a writ of mandamus

    Like the subject says. I wonder how many FBI agents will 'volunteer' to spend 475 days in jail for contempt of court?

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

    • identicon
      Anonymous Coward, 20 Oct 2015 @ 1:00pm

      Re: Time for a writ of mandamus

      Like the subject says.
      Time for an abolished writ?

      FRCP Rule 81(b) Scire Facias and Mandamus.
      The writs of scire facias and mandamus are abolished. . . .
      Under the Federal Rules of Civil Procedure, the writ of mandamus has been abolished.

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

  • icon
    That One Guy (profile), 20 Oct 2015 @ 6:54am

    Stalling at it's finest

    It's not like the request was for anything complicated, it was just to get their public stance on encryption. That they estimate it will take over a year to respond is a pretty clear sign that they're stalling, rather than just giving a simple answer that might come back to bite them.

    If they admit that their 'public stance' is encryption is good, then they can't very well expect to be taken seriously if they try and undermine it.

    if they admit that their 'public stance' is that encryption is bad, then they've now got to deal with the fact that they're claiming that better security is a bad thing, and all the fun that entails.

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

    • icon
      radix (profile), 20 Oct 2015 @ 10:02am

      Re: Stalling at it's finest

      I find it rather reasonable. Given all their hedging and flip-flopping over the past 6 months, they are simply projecting another 10 months to decide on their stance.

      IOW, they can't pass along their public stance on their encryption because they don't have one, and won't for 300 days.

      But expect a delay of another 5 months at that time, when a new administration will take office and probably change the stance again.

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

      • identicon
        Anonymous Coward, 20 Oct 2015 @ 10:25am

        Re: Re: Stalling at it's finest

        It is also possible that the person replying will be retiring just before that due date comes up.

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

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 7:15am

    How is the FBI able to act with such obfuscation and flagrant disregard of the law? Is FOIA on its way out where these agencies no longer even pretend to follow the law they're bound by?

    It appears this is just another example of why people are more and more mistrustful of the FBI. If you can't even follow a simple FOIA process within the established criteria, why should anyone listen to them and their anti encryption rant/attempt at policymaking.

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

    • icon
      That One Guy (profile), 20 Oct 2015 @ 8:05am

      Re:

      How is the FBI able to act with such obfuscation and flagrant disregard of the law?

      To answer that you need ask but one simple question: Who would hold them accountable? Anyone with the ability to do so also has a vested interest in keeping the ability to stonewall and/or ignore FOIA requests intact, so of course the FBI or other government agencies feel safe showing such blatant contempt for FOIA documents, they have no reason to respect the law that allows them.

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

      • icon
        Justin Johnson (JJJJust) (profile), 20 Oct 2015 @ 8:18am

        Re: Re:

        As noted in other comments, FOIA creates a private right of action to seek judicial redress when the law is not complied with.

        If the author chooses to take to his website and complain, that is of course his prerogative.

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

        • identicon
          Anonymous Coward, 20 Oct 2015 @ 8:46am

          Re: Re: Re:

          The fact that he has to seek judicial redress at all is the issue here. He quite literally requested the public stance of a government agency on an issue of public policy. There isn't a more innocuous use of FOIA requests than that.

          And of course, when you say "private right of action to seek judicial redress," what you mean is that anyone with the free time to spend at the courtroom, and the money to pay lawyers and court costs can spend the next year in the court systems to get the information released. No punishment for blatantly breaking the law will be given at any level, and since the majority of people don't have the time and money, the majority of people won't even be able to do this much.

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

    • identicon
      Anonymous Coward, 20 Oct 2015 @ 10:11am

      Re:

      The criteria seems to be pulled out the "behind" of politicians wishing to look good. It is not followed, since the time it sets is unrealistic.

      That the current procedure should take more than 200 days seems to be completely unpriotized and thus even worse than if FBI had a more reasonable deadline to follow. The politicians should probably look at ressources allocated vs. expected use, priority of issue and from that derive reasonable deadlines. As it is now, the priority is extremely low since the law is unrealistic to follow, the ressouces allocated are constantly under pressure since the priority is extremely low and the deadlines are thus completely depending on what the department feels comfortable promising.

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

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 7:29am

    "In other words, the FBI may finally get back to me sometime in the fall of 2016."

    Are they basically waiting for the next President to take office to find out what the bureau's official stance will be?

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

    • identicon
      Anonymous Coward, 20 Oct 2015 @ 8:41am

      Re:

      "...the FBI may finally get back to me sometime in the fall of 2016."

      Are they basically waiting for the next President to take office to find out what the bureau's official stance will be?...


      You'll be waiting a bit longer: the next president takes office January 2017!

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

      • identicon
        Anonymous Coward, 20 Oct 2015 @ 10:47am

        Re: Re:

        You know, as soon as I pressed "submit" I suddenly remembered the timing of elections (Fall) and when the President actually takes office (2017). It's ALWAYS right after you press submit you think of these things...

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

      • identicon
        Anonymous Coward, 20 Oct 2015 @ 11:27am

        Re: Re:

        Ah... but they'll know who the next President will be in the fall, so they can have the appropriate stance ready when he's actually sworn in. After all, they already have all her/his position papers, they just have to figure out who will be elected.

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

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 7:29am

    Is that "God willing" that they'll get to it in 475 days or maybe "God luck" having them get to it in 475 days?

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

  • identicon
    Rich Wallick, 20 Oct 2015 @ 7:32am

    FOIA has been a bad joke

    Took me over five years and an attorney to get the USDA National Organic Program to release request FOIA documents. The USDA went from "no responsive documents" to over 10,000 pages. Among other things they were hiding was the fact that most USDA Organic foods coming from California and certified by CCOF were grown using synthetic fertilizers from 2000 till 2009 and that synthetic fertilizers usage was know since 2004 yet nothing was done.

    "Our" government has been pretty well completely co-opted by our oligarchy.

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

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 7:43am

    "God morning"? I sense a suit...

    Separation of church and state is very important (witness Kim Davis), yet they dare to cite a specific deity in their opening line! That alone should get them in trouble, regardless of their technical noncompliance. Shiva willing, the career of that respondent should be destroyed.

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

  • icon
    lucidrenegade (profile), 20 Oct 2015 @ 8:34am

    What's with the "Purchase credits to promote this comment" thing? If you enable it, you could make a boat load of money off of OOTB trying to keep his comments from being flagged out of existence. :0)

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

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 9:38am

    In other words, you need to throw massive money into the legal system or the FBI will keep sandbagging you into eternity.

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

  • identicon
    Hoover Sucks, 20 Oct 2015 @ 11:43am

    FBI, DEA, Yada Yada

    All federal three-letter agencies s/b abolished. The "quaint" Constitution might then have a chance for resucisitation. Crime would decline, as would stings, scams, crooked thugs posing as officials.

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

  • identicon
    Zonker, 20 Oct 2015 @ 12:17pm

    When they finally get around to responding to your FOIA request, what they send you will be encrypted. You won't be able to read it, but at least they'll have a backdoor to read it themselves.

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

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

    1 day into that they will conveniently lose your paperwork and forget all about it.

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

  • icon
    GEMont (profile), 21 Oct 2015 @ 5:11pm

    Make it so.

    "While it's entirely possible that the debate about encryption will still be going on by then, it seems like this tidbit of information would be better served if it could be seen and debated by the public today rather than a year from now, when there's a good chance the crux of this debate will be over."

    Amazing how similar that statement is to the statement made to the government employee who is handling the request, by his boss, who said;

    "While it's entirely possible that the debate about encryption will still be going on by then, it seems like this tidbit of information would better served us, if it is not seen or debated by the public until a year from now, when there's a good chance the crux of this debate will be over."

    ---

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

  • identicon
    Anonymous Coward, 27 Oct 2015 @ 11:44am

    > no such notice shall specify a date that would result in an extension for more than ten working days

    That just means that these people work about five days per year.

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


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