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Truthout reporter Jason Leopold is reporting today that the Federal Bureau of Investigation (FBI) released five pages of a PowerPoint presentation that describe a previously unknown program of "blackballing" records that would not be disclosed in response to requests under the Freedom of Information Act (FOIA). Labor historian Trevor Griffey obtained the document while following up on Manning Marable's research on Malcolm X.  Dr. Marable was a Columbia University professor who founded the Institute for Research in African-American Studies.  He died last year, and Griffey made a FOIA request to the FBI to ask for its documentation about Dr. Marable's requests about Malcolm X. An FBI analyst eventually disclosed that a search on Marable turned up a single file that was "blackballed" per the "standard operating procedure." Griffey made another request for documents about the blackballing procedure. This request produced the five pages from a PowerPoint presentation.  It says that the FBI would blackball a record if it

Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

This text is from FOIA Exemption (b)(7)(E) [5 U.S.C. § 552(b)(7)(E)]. What is disturbing is that instead of producing a copy of the document with the classified information blacked out, the FBI was denying the existence of documents that actually do exist. The whole point of FOIA is that we can build trust and confidence in government operations through a process by which government offices share their information, with certain limited exceptions. While the government retains the right to classify certain information, or even to respond that the existence of non-existence of a document is itself classified (the so-called "Glomar response"), it undermines public confidence when it makes a false statement that no document exists. The PowerPoint pages themselves had certain portions redacted so that we in the public cannot even know all the categories of documents that are "blackballed."  Hopefully, wiser heads will soon prevail and the FBI will reform its FOIA procedures so that the public will have accurate information about when and why information is withheld.

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National Security Counselors (NSC), an Arlington, Virginia-based public interest group (and legal counsel for the National Whistleblowers Center on FOIA issues), has filed three lawsuits against the CIA about how the agency handles and interprets document requests under the Freedom of Information Act (FOIA).  According to Kel McClanahan, Executive Director of NSC, the filed lawsuits are the culmination of a yearlong effort to shed light on how the CIA processes FOIA requests and correct some of the Agency’s most egregious systemic violations of the letter and spirit of FOIA.

According to the NSC complaints, the CIA’s violations include, but are not limited to, the following:

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Fred Whitehurst is the whistleblower who revealed that the crime lab at the Federal Bureau of Investigation (FBI) failed to live up to its reputation for scientific integrity, and sometimes even resorted to falsifying results. Today Jeff Stein of the Washington Post's Spy Talk blog calls Whitehurst a "hero" and chats with him about his legacy.

Earlier this month, the Post's Keith Alexander wrote about a report of the U.S. Attorney in the District of Columbia finding over 100 cases that were tainted by FBI crime lab results that must be reviewed. That report is in response to the exoneration of Donald Gates who spent 28 years in prison for a rape and murder he did not commit.

Stein elicited from Whitehurst how he continues to review FBI records released under the Freedom of Information Act (FOIA) to find people who might still be suffering from unreliable crime lab results. Stein does not cover Whitehurst's recent activism to get the U.S. Senate to improve the federal Whistleblower Protection Act. Whitehurst has called on Senators to fix the poison pills in the Senate's current version of S. 372, the supposed Whistleblower Proection Enhancement Act (WPEA). One of those "enhancements" is to repeal the special law that protects whistleblowers at the FBI. Whitehurst has written an open letter to Senators calling on them to fix all the poison pills before they pass S. 372. Follow this link to join him in that call.

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A D.C. Superior Court judge recently released Donald E. Gates, who spent 28 years in prison for a murder and rape he did not commit. The court also expunged Mr. Gates' conviction after it was determined that the government's expert, FBI crime lab examiner Michael P. Malone, lied about the hair and fibers evidence that Malone claimed linked Gates to the rape and murder.

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On June 12, 2008, the Supreme Court unanimously ruled in favor of a FOIA requester in Taylor v. Sturgell (No. 07-371), reversing the D.C. Circuit’s decision denying a FOIA requester access to documents on the grounds of issue preclusion. The Supreme Court reinstated Mr. Taylor’s FOIA case that had been dismissed on res judicata grounds because a prior FOIA requester was a "close associate" of Mr. Taylor's, and had allegedly been his "virtual representative" in a prior FOIA case that was brought unsuccessfully seeking the same documents.


In reversing, the Supreme Court unanimously rejected the “virtual representation” doctrine that the D.C. Circuit had relied upon to preclude Mr. Taylor from litigating the denial of his FOIA request in federal court. Public Citizen Litigation Group successfully represented Mr. Taylor before the Supreme Court.


Additionally, the Supreme Court cited to an amicus brief filed by the National Security Archives, Reporters Committee for Freedom of the Press, Electronic Frontier Foundation and the National Whistleblower Center.

See, Whistleblower Protection Blog (Feb. 27, 2008) for more information on the amicus brief.

• A copy of the Supreme Court’s decision is available here.
• An Associated Press article covering the Supreme Court’s decision is available here.

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The National Whistleblower Center has joined an amicus curiae brief submitted to the Supreme Court to support the rights of FOIA requesters.  The amicus brief was filed by the National Security Archive, OpenTheGovernment.org, the Reporters Committee for Freedom of the Press, the National Whistleblower Center, and the Electronic Frontier Foundation. 

A copy of the amicus brief can be found here>>.

The Supreme Court granted certiorari in Taylor v. Sturgell  (No. 07-371) to review the D.C. Circuit’s decision denying a FOIA requester access to documents on the grounds of issue preclusion.  The D.C. Circuit affirmed dismissal of Taylor’s FOIA case on res judicata grounds because a prior FOIA requester was a "close associate" of Taylor's, and had been his "virtual representative" in a prior FOIA case that was brought unsuccessfully seeking the same documents.  The principal reason the D.C. Circuit held that the second FOIA case was barred by res judicata was that both FOIA requesters were represented by the same attorney in both cases.

Amici argue that “virtual representation applied in a FOIA matter raises serious concerns. FOIA requests are filed by many different people for many different reasons... No one lawsuit will achieve FOIA's public purpose (or, indeed, another requester's individual interest); the statute is designed to fulfill the public part of its purpose through many individuals each reminding federal agencies that they cannot operate in secret."

If res judicata is broadly applied to FOIA cases, then citizens will be denied access to records when there are multiple FOIA requesters making requests for information on the same subject matter.  Advocacy groups, journalists, researchers, scientists or historians may all have an interest in seeking records on the same subject matter, but that does not mean that each requester’s interest is the same.  Because many different reasons may apply to the denial of FOIA requests from different requesters at different times, one FOIA requester should not be automatically barred by the denial of requests made by another.

Related Documents:

• Petition for Certiorari
• Opposition Brief
• Amicus Brief
  

The SCOTUS Blog has more on the case on this page

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President Bush has signed into law the first legislation in more than a decade to strengthen the Freedom of Information Act. The Open Government Act of 2007, signed by Bush on New Years eve, contains several important changes and improvements to the Freedom of Information Act.


The new law establishes enforceable deadlines for agencies to process FOIA requests; extends FOIA's reach to certain records maintained by government contractors; establishes an ombudsman to resolve disputes; creates a FOIA tracking system; restores provisions for recovery of attorneys fees by FOIA litigants who successfully prevail in court, including cases where there is a voluntary or unilateral change in the government's position after filing of the lawsuit, so long as the FOIA requester's claim is not insubstantial; and requires that any award of attorneys fees be paid out of an agency's budget and not the Treasury Department's judgment fund.


Legislative improvements to FOIA were long overdue and the Open Government Act of 2007 is intended to speed up citizen access to government information. The Freedom of Information Act is an essential tool to assist whistleblowers, journalists, citizens and watchdog groups discover what their government is up to and provide outside oversight of government activities.


A copy of the Open Government Act of 2007 is linked here

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Today's Washington Post has an update on the FBI Bullet-Lead debacle. Lee Wayne Hunt , a North Carolina man who has maintained his innocence since being convicted of murder in 1986, is appealing his case to the North Carolina Supreme Court. 

This is not Mr. Hunt's first appeal, but this time he is doing so with the help of information obtained by the National Whistleblower Center's Forensic Justice Project. The FJP's lawsuits against the FBI produced a wealth of documents detailing how thousands of cases, including Mr. Hunt's, were prosecuted on the basis of a faulty forensic science known as bullet-lead analysis.

Dr. Frederic Whitehurst, a former FBI Special Agent and forensic expert, is the Executive Director of the FJP.

• Click here to see the website devoted to the Washington Post / 60 Minutes investigation on Bullet-Lead.
  
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Yesterday, John Solomon of the Washington Post reported that the Senate Judiciary Committee is requiring that the FBI turn over records related to all criminal cases in which bullet-lead analysis was presented as evidence. There are over 2,500 such cases nationwide.

Dr. Frederic Whitehurst, the Executive Director of the Forensic Justice Project (a project of the National Whistleblower Center) has filed three lawsuits against the FBI since 1996 in an effort to obtain release of these records. Unfortunately, the FBI has never been fully compliant with the FJPs FOIA requests, and has engaged in extensive feet-dragging and stonewalling, even so far as demanding that the FJP pay over $70,000 for access to these public records.  

The Senate's action is in response to years of work by the FJP, which led to a joint investigation by the Washington Post and 60 Minutes.

 

Click here to read the article

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