Sunshine Week 2010: FOIA Could Still Shed More Light
As the transparency community celebrates Sunshine Week, we here at EFF are reminded that most of the federal agencies we seek to monitor through our Freedom of Information Act work continue to cloak their activities in excessive secrecy. We have grown accustomed to receiving agency documents with large amounts of information blacked out — or "redacted" in the official parlance. While we often suspect that many of these deletions are made to conceal innocuous, or perhaps embarrassing, information, it is usually impossible to confirm those suspicions. But in some rare instances, we are able to learn precisely what a recalcitrant agency has improperly withheld from public view.
Such an opportunity recently arose when the Washington Post published a series of internal FBI e-mail messages concerning the Bureau's abuse of national security letter (NSL) authority. NSLs are used to obtain, among other things, telephone toll billing records and subscriber information, and electronic communication transactional records. In a report issued in March 2007, the Justice Department's Inspector General concluded that the FBI had systematically violated the law by improperly issuing hundreds of NSLs without proper authorization. Within days of the IG's report, EFF submitted a FOIA request to the FBI for documents detailing these abuses. Of the tens of thousands of pages of material that the Bureau eventually identified as responsive to our request, the vast majority of the relevant information was redacted.
The e-mail messages published by the Washington Post were obtained from an FBI whistleblower who had been directly involved in the Bureau's handling of NSLs. Through a careful comparison of the redacted material originally released to EFF with the unredacted messages recently published by the Washington Post, we were able to see precisely what the Bureau withheld. We were particularly struck by the fact that the FBI redacted all references to a proposal that had been floated within the Bureau to legitimize questionable demands for communications records — so-called "exigent letters" — a plan that the DOJ Inspector General clearly described in his report:
Our review of contemporaneous e-mail communications . . . found that for nearly 2 years, beginning in late 2004, [FBI National Security Law Branch] attorneys counseled CAU [Communications Analysis Unit] officials to take a variety of actions, including . . . opening "umbrella" investigations out of which national security letters could be issued in the absence of another pending investigation. . . .
The Assistant General Counsel at first proposed the establishment of six "generic" or "umbrella" investigations representing the recurring types of threats investigated by the Counterterrorism Division. The proposal contemplated that the FBI would issue national security letters from these files in exigent circumstances when there were no other pending investigations to which the request could be tied.
As the side-by-side comparison of the redacted and full-text e-mail messages shows, the FBI withheld all references to its proposal to use "generic" or "umbrella" investigations as a rationale to justify questionable demands for sensitive information relating to private communications. It is worth noting that the FBI continued to withhold this information even after President Obama and Attorney General Holder announced that a new "presumption of openness" should guide agency FOIA implementation. Despite the Attorney General's assertion that the Justice Department would only defend an agency's decision to withhold information if it could demonstrate a "foreseeable harm" from disclosure, in this instance DOJ attorneys defended the FBI's withholding of information that was revealed by the Department's own Inspector General three years ago.
FOIA is a powerful tool, and this example of over-redaction demonstrates the need to continue seeking a culture of transparency and trust from our government. President Obama took the first step by declaring that "[a]ll agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government," and organizations like EFF are making sure that the government remembers its promise. But Sunshine Week exists to remind citizens, journalists, members of Congress, and folks both inside and outside the transparency movement to continue seeking honest disclosure using all the tools that exist: rigorous investigations, hearings, and actual, public oversight.