Prolific FOIA Requester Celebrates 50th Anniversary Of FOIA Law By Suing FBI Over Its Document Search Methods
from the lawsuit-not-so-much-'ironic'-as-it-is-'inevitable' dept
No better way to celebrate the 50th anniversary of the Freedom of Information Act than filing a lawsuit claiming an agency is refusing to comply with it. FOIA enthusiast Ryan Shapiro has done exactly that, suing the DOJ [PDF] for the FBI's continued refusal to perform anything more than a cursory search, using its most outdated software, for responsive records.
Foia requests to the FBI are processed by searching the Automated Case Support system (ACS), a software program that celebrates its 21st birthday this year.
Not only are the records indexed by ACS allegedly inadequate, Shapiro told the Guardian, but the FBI refuses to search the full text of those records as a matter of policy. When few or no records are returned, Shapiro said, the FBI effectively responds “sorry, we tried” without making use of the much more sophisticated search tools at the disposal of internal requestors.
“The FBI’s assertion is akin to suggesting that a search of a limited and arbitrarily produced card catalogue at a vast library is as likely to locate book pages containing a specified search term as a full text search of database containing digitized versions of all the books in that library,” Shapiro said.
Shapiro went meta to prove this point. Along with a handful of requests for documents about the FBI's "mosaic" theory, Shapiro also requested processing notes on the requests themselves. The FBI "failed" to locate much in the way of responsive documents, thanks to its insistence on using 21-year-old software, rather than more modern tools it has at its disposal.
The DOJ -- despite using millions of tax dollars to fund better search tools -- continues to insist it only needs to perform the bare minimum when searching for responsive documents. The software old enough to buy its own booze only searches for terms entered by FBI agents handling cases, not the text included in the files themselves.
It's not that the DOJ doesn't have the capability to perform a more in-depth search. It just feels it doesn't have to do anything more than a cursory surface scan for responsive documents. Whatever fails to turn up in this search is withheld without actually having to be declared "withheld" and justified with a FOIA exemption. Rather than present FOIA requesters with something they can challenge in court, the FBI simply claims it performed a search and shrugs at the lack of responsive files.
This non-responsiveness didn't impress Judge Randolph Moss back in January and it's that decision Shapiro is hoping will help him prevail in this lawsuit.
The FBI's use of an outdated system -- seemingly solely for the purpose of generating as few responsive files as possible -- is well-documented. And yet, there's almost no way to force the FBI to perform thorough searches -- utilizing the multiple tools and databases it has access to -- without dragging the DOJ to court. The FBI knows this, and knows that its unwillingness to utilize its internal FOIA tools is an easy way to discourage FOIA requests, as there are only a few filers with the means to pursue a lawsuit against the government. And any decision by a judge ordering the FBI to perform a more thorough search will be taken by the agency as only applying to the case at hand.
Of course, the FBI will do anything it can to keep Shapiro from obtaining more documents. Shapiro is the FBI's "mosaic" theory defined. The agency seems to fear his ability to pull together information from multiple, overlapping requests. And the DOJ has gone so far as to claim his dissertation research (involving the government's handling of animal rights activists) is a threat to national security. So, it will continue fighting for its "right" to deliberately perform inadequate document searches and maintain its non-responsive status quo.