Why Did The FBI Say It Couldn't Release Documents To 'FOIA Terrorist' Jason Leopold That It Released To Me Months Earlier?

from the hmmm dept

What's up, FBI? Back in early 2015, when the FBI and (specifically) Director James Comey ramped up their silly "going dark" moral panic about how strong encryption was making us less safe, I sent a Freedom of Information Act (FOIA) request to the FBI for all of the FBI's internal talking points about "going dark" or other views on encryption. My main reason for this was really to see if I might uncover some of the reasoning for why the FBI had quietly deleted a page on its website that encouraged people to encrypt their phones. It took until May of last year, but the FBI finally delivered me a stack of talking points, mostly focused on talking point lists and speeches given by Comey. I never wrote about it because the talking points alone weren't even that interesting.

In fact, I'd almost totally forgotten about that entire request. But then, a few weeks ago, right here on this site, Tim Cushing wrote about the latest escapades of Jason Leopold, the reporter whose use of FOIA requests is so prolific that he's been dubbed a "FOIA terrorist" by the DOJ. It turns out that Leopold had made a similar request to the FBI... and was told that while they had found 487 responsive records, they were giving him a grand total of 0 of them, because they were all subject to restrictions on release. In that article, Cushing, rightly explains why this is ridiculous. The whole point of "talking points" is to share them with the public. There is simply no FOIA exemption that allows for blocking them.

But this was even more bizarre to me for the simple fact that the FBI had already sent me many of those documents. I didn't add up all the pages sent to me, but I can tell it's probably closer to about 100 pages than 487, so clearly the FBI is likely lying to me as well in terms of how many "responsive" documents there really were, but I'm confused as to why the FBI couldn't release these kinds of documents to Leopold.


I mean, just imagine the chaos that would have occurred if the FBI had obeyed the law and given Leopold such talking points as:

Thank goodness that didn't happen. Either way, I'm embedding all the files the FBI released to me below, just in case Leopold finds them more useful than I did -- such as using them as potentially useful evidence in the lawsuit he should file against the FBI for not releasing these same documents to him.


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  • icon
    Anonymous Anonymous Coward (profile), 2 Feb 2017 @ 8:34am

    It's all about control

    "...Jason Leopold, the reporter whose use of FOIA requests is so prolific that he's been dubbed a "FOIA terrorist" by the DOJ."

    It's axiomatic. One of the principles of a police state is obtuseness. Right now, the FBI is just practicing obtuseness, and when they get it right they will be opaque. Being obtuse in the most 'transparent' administration ever was baby step compared to 'making America great again' by codifying the police state, and becoming completely opaque. Time will tell.

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

    • icon
      killthelawyers (profile), 2 Feb 2017 @ 9:51am

      Re: It's all about control

      On the one hand, I have no doubt DOJ and FBI lawyers truly dread dealing with Mr. Leopold, so there is at least some theoretical grounding to the term "terrorist." On the other, you strip the word of effect when a person who sends mundane document requests is given the same label as people who murder the innocent.

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

      • identicon
        Anonymous Coward, 2 Feb 2017 @ 10:57am

        Re: Re: It's all about control

        You clearly do not stand with or support the people who keep us safe.

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

        • identicon
          Anonymous Coward, 2 Feb 2017 @ 12:06pm

          Re: Re: Re: It's all about control

          You clearly do not stand with or support the people who keep us safe.

          On the contrary, I stand with those who would keep us safe from the most dangerous entity known to man: an unaccountable tyrannical government.

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

  • icon
    That One Guy (profile), 2 Feb 2017 @ 9:47am

    "Because we can, and what are you going to do about it?"

    My guess would be that while any and all FOIA requests from the general public gets a very low priority in the FBI's eyes (because it's not like the FBI works for the public or anything), any FOIA request from the 'FOIA Terrorist' is rejected by default, with the only question being 'What excuse to use this time?'

    Or put simply, they were willing to hand you the absurd and boneheaded talking points because they figured they'd be too dry and boring for you to do anything with them, but they weren't willing to hand them to The FOIA Terrorist because screw that guy.

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

    • icon
      Mike Masnick (profile), 2 Feb 2017 @ 10:14am

      Re: "Because we can, and what are you going to do about it?"

      Or put simply, they were willing to hand you the absurd and boneheaded talking points because they figured they'd be too dry and boring for you to do anything with them, but they weren't willing to hand them to The FOIA Terrorist because screw that guy.

      FWIW, I'm not sure that's true. For the most part, FOIA staffers are pretty professional. I generally ascribe this kind of mistake to pure sloppiness/carelessness, rather than direct vindictiveness. But you never know.

      The problem with the FOIA system is that it's just so easy to say "no."

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

      • icon
        That One Guy (profile), 2 Feb 2017 @ 10:45am

        "THIS guy? Again?!"

        In general perhaps, but when someone that files so often as to earn the nickname 'FOIA Terrorist' from a government agency comes calling I can't help but suspect that their professional attitude might take a hit. Professional or not, they are human after all, and seeing his name come up on request after request, on a regular basis has got to get old quick.

        Add that to how many easily abused exceptions there are and it wouldn't surprise me if they tried to take as little time as possible with his requests using those exceptions, because they know they'll likely be hearing from him again in the near future. Again, and again, and again.

        Or I could be overthinking it and it really is as simple as 'Different people, different ideas as to what's 'dangerous' to release', could go either way I suppose.

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

        • icon
          TechDescartes (profile), 2 Feb 2017 @ 11:24am

          Re: "THIS guy? Again?!"

          What if the FBI is unreasonably denying responses to requests it knows are relatively harmless so as to consume Leopold's time, leaving him less time to draft other more "harmful" requests?

          Go ahead, file a lawsuit, fight us in court. When you win, we just give you the files we already gave to Masnick. And you've lost two years fighting us—two years you could have spent filing requests we really didn't want to have to deal with.

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

        • identicon
          Anonymous Coward, 2 Feb 2017 @ 12:57pm

          Re: "THIS guy? Again?!"

          The FOIA-system is basically a library function. The best way to avoid congestion is to make as much as possible automated by crafting sufficient metadata. You can get inspired by online search even if you cannot make the documents public beyond the person seeking information.

          For now it is natural that journalists would rather go fishing in a far too large stack rather than missing something by chance if they specify too much. That also means that the government has to unnecessarily provide far too many documents to too many people, which stalls and breaks the system.

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

        • identicon
          Anonymous Coward, 3 Feb 2017 @ 2:50pm

          Re: "THIS guy? Again?!"

          Funny how the organization with the most ties to american terrorism plots is the one calling someone a terrorist.

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

      • identicon
        Anonymous Coward, 3 Feb 2017 @ 7:52am

        Re: Re: "Because we can, and what are you going to do about it?"

        number of requests is not an issue. how pointed these are is.

        once they awaken, they put bolo alert in your name, and then deny by default. yes, there are two systems at once. general snail procedure, and foia terrorist type.

        jersey city nj clerk's office calls them document whores. that is after criminal cases started piling due to citizens sniffing with opra (nj version of foia). opra is free of charge if requested response by email of $1 for cd version.
        https://jerseycitynj.seamlessdocs.com/w/records_request

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

  • icon
    Ninja (profile), 2 Feb 2017 @ 10:21am

    It's like hacking something. Sometimes you just have to overload the system with some type of data or request and eventually the vulnerable system will spill its guts. Keep probing the Govt and it will eventually screw up and actually be transparent.

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

  • icon
    TechDescartes (profile), 2 Feb 2017 @ 11:18am

    FBI Training Manual

    "Going Dark" (public): any use of encryption other than by the FBI
    "Going Dark" (internal): limiting responses to, or denying outright, FOIA requests

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

  • icon
    radix (profile), 2 Feb 2017 @ 2:20pm

    There's a deep irony here

    The FBI, and the intelligence community at large, is generating so many *internal* documents about so many subjects that they can't even count them, let alone analyze/categorize them, let alone make any intelligent responses.

    But this same intelligence community thinks they're the best organization(s) to gather, analyze and respond to all the data generated by the public, which is many orders of magnitude more vast and complex.

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

  • identicon
    Pixelation, 3 Feb 2017 @ 7:54am

    Aaaaand suddenly...

    All FOIA requests from Mike come back denied.

    Call me cynical.

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

  • identicon
    GristleMissle, 3 Feb 2017 @ 11:00am

    Sick of this

    I am sick of hearing about Jason Leopold. All he is doing is just harassing the government for the sake of harassing the government. He is another kind of terrorist that I wish we could ban.

    If the government is keeping this information from us then they must have a reason and we should trust them and take them at their word.

    I'm sure that the FBI denying Jason was just a clerical mistake. As Mike just demonstrated, anyone can get this information if we are allowed to.

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

    • identicon
      Wendy Cockcroft, 6 Feb 2017 @ 2:29am

      Re: Sick of this

      Methought you were all about "small government." Now you're all about protecting it from "harassment?" Aw, poor widdle government. Cry me a river.

      And help Jason Leopold to do his damn job: holding those oh so special snowflakes to account for their actions.

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


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