EFF has long fought for the public’s right to use federal and state public records laws to uncover controversial and illegal law enforcement techniques. That’s why we filed an amicus brief in a federal appellate court case this week asking it to reconsider a decision that makes it much easier for law enforcement agencies such as the FBI to conceal their activities.
The case, Naji Hamdan v. U.S. Department of Justice, is a Freedom of Information Act (FOIA) lawsuit filed by Mr. Hamdan, an American citizen. While in the United Arab Emirates (UAE) in 2008, Mr. Hamdan was arrested and tortured. Mr. Hamdan, represented by the ACLU of Southern California, alleges that his detention was part of a larger program in which the U.S. government relies on other nations to interrogate and torture individuals suspected of having ties to terrorism.
Mr. Hamdan filed suit in 2010 seeking records from the CIA, FBI, and other law enforcement and intelligence agencies regarding whether U.S. official knew about or participated in his detention and interrogation. The federal agencies claimed that many of the records related to Mr. Hamdan’s detention were exempt from FOIA for various reasons, including that they were classified, that they could be withheld under other national security laws, or that they were exempt under a FOIA provision that allows law enforcement agencies to withhold their techniques and procedures.
The trial court upheld the government’s exemption claims and Mr. Hamdan appealed. In September, the U.S. Court of Appeals for the Ninth Circuit agreed with the lower court that the agencies did not have to disclose the records. Although several parts of the court’s decision are concerning, EFF was particularly troubled by the Ninth Circuit’s broadening of a FOIA exemption that allows law enforcement agencies to withhold their techniques and procedures, known as Exemption 7(E).
In the past, agencies claiming Exemption 7(E) had to show that disclosing the records would give potential lawbreakers a roadmap on how to evade law enforcement or otherwise break the law. The Ninth Circuit in Hamdan ruled that law enforcement agencies no longer have to demonstrate such a risk before withholding records.
The upshot of the court’s ruling is that law enforcement techniques and procedures are categorically exempt from disclosure, meaning that the public could potentially no longer get access to such records in future FOIA requests.
EFF believes that the court interpreted FOIA incorrectly, and our brief provides several legal arguments for why the court needs to rehear the case. More broadly, however, EFF is concerned about the practical impact of the decision, which could severely limit the public’s ability to access law enforcement records under FOIA.
EFF regularly sues law enforcement agencies to learn more about their practices, including the FBI’s development of a massive biometrics database, how federal agents use evidence obtained from cellphones, and how law enforcement agencies use social media to investigate crimes. In many cases, the federal agencies claim that information is exempt from disclosure under Exemption 7(E).
In EFF’s experience however, Exemption 7(E) is often misapplied to withhold law enforcement techniques that either are not even remotely secret or, worse, involve federal agents engaging in controversial or illegal activities.
For example, in EFF’s social network monitoring FOIA suit, law enforcement agencies claimed that basic details about how they use Facebook and Twitter to investigate crime would disclose secret techniques, even though such monitoring is well-known and widely publicized. Also, history has shown that law enforcement investigations are often a cover for intimidating or harassing political activists or communities of color.
EFF does not believe that law enforcement agencies should be able to categorically shield how they investigate crimes from public scrutiny and we hope that the Ninth Circuit will reconsider its decision.