Reporters Committee, AP continue fight against FBI’s FOIA non-compliance

Update: This post was updated on July 27, 2021, to reflect the D.C. Circuit’s ruling in Reporters Committee v. Federal Bureau of Investigation.

In 2007, the FBI posed as an Associated Press editor during an investigation of a 15 year-old student suspected of sending anonymous bomb threats to school administrators at his high school outside Seattle, Washington. The undercover agent sent the student a link to a fake AP news story in order to deliver surveillance malware to the student’s computer. The student did not immediately respond to the undercover agent’s e-mails, and only clicked the link after the agent, posing as a journalist, assured him that journalists “are not allowed to reveal their sources.” The student clicked the link, downloading the malware that identified his location to authorities.

When use of this investigative technique was discovered in October 2014, it was questioned by high-ranking members of Congress, members of the public and the press, who expressed concern that the use of this technique endangers the media’s credibility. The New York Times published a letter to the editor from former FBI Director James Comey that “defended the FBI’s use of media impersonation as an investigative technique.”

Since then, the Reporters Committee for Freedom of the Press and the AP have been fighting to obtain information regarding the FBI’s practice of impersonating members of the news media through the Freedom of Information Act. Separately, the Reporters Committee has been litigating another FOIA matter seeking access to records related to the FBI’s impersonation of documentary filmmakers.

Below is a timeline of the events and actions that have occurred since 2007, leading up to the latest motion to challenge the FBI’s withholding of records filed by the Reporters Committee and the AP on July 25.

2007

The FBI impersonated an AP editor to “successfully deliver malicious software to a criminal suspect” outside Seattle.

2014

The Reporters Committee and the AP submitted three FOIA requests in October and November of 2014, seeking records concerning the 2007 impersonation, records concerning “other instances where the FBI has impersonated a member of the news media,” and the policies “governing the FBI’s impersonation of the news media.”

Following discovery of the impersonation, the Reporters Committee and 25 news organizations sent a letter to the FBI director and the attorney general calling for a “full disclosure of the facts surrounding the FBI’s utilization of a fake Associated Press article” which enabled the FBI to locate the suspect.

In the letter, attorneys argued that news media impersonation “endangers the media’s credibility and creates the appearance that it is not independent of the government,” and it “lends itself to the appearance that media organizations are compelled to speak on behalf of the government.”

2015

No responsive records were provided to the Reporters Committee or the AP following the 2014 FOIA request, so the two groups filed a lawsuit against the FBI and DOJ for the records on August 27. The FBI then released 186 pages of responsive records — 59 pages were withheld entirely and 103 pages had significant redactions due to various asserted FOIA exemptions.

2017

On February 23, the court determined that the FBI had “established that its search for records in response to the 2014 requests was adequate.”  The Reporters Committee and the AP successfully appealed the court’s ruling to the D.C. Circuit, which held that the FBI and the DOJ had not “satisfied their burden to establish that the FBI had conducted an adequate search” for records responsive to their FOIA requests.

More specifically, the D.C. Circuit concluded that the FBI director’s office was “intimately involved” in the FBI’s response to the 2007 impersonation in 2014, and therefore the director’s office should have been searched for responsive records.

In December, the Reporters Committee submitted an additional FOIA request to the FBI pursuing more recent records that were created since it submitted its first FOIA requests in 2014.

2018 

No responsive records were provided to the Reporters Committee following its 2017 FOIA request. The Reporters Committee sued the FBI and DOJ in February regarding these records. The 2015 lawsuit and the 2018 lawsuit were then consolidated by the court.

2019

The FBI and DOJ processed 611 pages of records it considered responsive to the four requests, producing 84 pages of records in full, and 244 pages with redactions. The FBI and DOJ are now claiming that the FBI “properly withheld 283 pages [in full], as well as portions of 244 pages,” and they argue that the Reporters Committee and the AP should be prevented from challenging those withholdings.

The Reporters Committee and the AP responded on July 25, asserting that the FBI and DOJ “fail to meet their burden to justify the withholding of material located and processed.”

The FBI and the DOJ did not provide “sufficient information for the Court” to determine whether the records they have withheld fall within one of FOIA’s exemptions, according to the Reporters Committee’s brief.

2021

The D.C. Circuit issued an opinion holding that the FBI failed to justify withholding documents regarding the agency’s impersonation of an Associated Press editor. The ruling represented the Court’s most expansive and detailed explanation of FOIA’s “foreseeable harm” provision, which Congress added to the law in 2016 to make it harder for federal agencies to keep government records secret.

As RCFP Senior Staff Attorney Adam Marshall wrote in a special analysis, the D.C. Circuit’s 34-page opinion established a high bar for the government to withhold records under the provision and affirmed that lawmakers’ amendment to the federal public records law has teeth.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.