FBI failed to follow Justice Department’s news media guidelines when agents questioned San Francisco freelancer

FBI agents did not follow Justice Department guidelines intended to protect journalists and their sources when they questioned Bryan Carmody during last year’s high-profile police raid of the freelance journalist’s San Francisco home, according to a recent Reporters Committee legal filing in a public records lawsuit against the Justice Department.

The FBI and the Justice Department’s Criminal Division also failed to adequately search for records related to the raid in response to Freedom of Information Act requests filed by the Reporters Committee. And the FBI unlawfully withheld the names of two agents who questioned Carmody.

Reporters Committee attorneys made the case that the authorities’ inadequate searches violate the Freedom of Information Act in a recent motion in which the organization asked a federal court in Washington, D.C., to reject the government’s request to quickly resolve a FOIA lawsuit in its favor. In the filing, they urged the district court to order the bureau to produce all responsive records related to the Carmody case.

The July 2 court filing marks the latest development in the Reporters Committee’s year-long fight to better understand the federal government’s involvement in the raid. Although San Francisco police obtained warrants to search Carmody’s property in May 2019, the raid stunned American journalists and press freedom advocates. City police officers, accompanied by FBI agents, searched Carmody’s home and office, seized his equipment, and detained and questioned him for six hours as part of an investigation to learn the identity of a confidential source who leaked an internal police report to Carmody. A court later quashed all of the search warrants that gave rise to the searches, as each violated California’s shield law, and Carmody reached a $369,000 settlement with the City of San Francisco in March.

Meanwhile, the Reporters Committee has learned previously undisclosed details about the raid through public records from the San Francisco Police Department and federal agencies. For example, an FBI document obtained by the Reporters Committee last year through a FOIA lawsuit revealed that FBI agents knew Carmody was a journalist when they questioned him. More recently, a San Francisco Police Department memo obtained by the Reporters Committee showed that officers who conducted the raid on Carmody’s home were instructed not to use their body-worn cameras.

But the FBI’s latest admission — that the bureau did not follow internal Justice Department rules meant to protect journalists from unlawful searches and seizures — is especially alarming.

“The government’s failure to abide by its own policy in connection with the FBI’s questioning of Carmody is deeply troubling,” Reporters Committee attorneys state in their cross motion for summary judgment. “Plaintiff and the public have a right to be fully informed as to how and why the federal government’s own rules for questioning journalists were not followed here.”

Agents ignored Justice Department media guidelines

The Justice Department codified its internal News Media Policy in 1973, as public outrage grew in response to a tidal wave of federal subpoenas that asked journalists to turn over their confidential materials. The policy, which was most recently updated in 2014 and 2015, prohibits federal officials from questioning reporters or seizing their work materials without following a certain set of procedures — including getting approval from the U.S. Attorney General, except in extreme circumstances.

But government filings in the  Reporters Committee’s FOIA lawsuit demonstrate that federal law enforcement officials did not follow the guidelines before questioning Carmody. A declaration submitted to the court by a senior Justice Department FOIA official stated that all consultation and authorization requests made pursuant to the news media guidelines are tracked in a Justice Department database. In response to a Reporters Committee FOIA request, however, a search of the database using Bryan Carmody’s name “produced no hits.”

While it is clear that the Justice Department violated its own policy, records that have yet to be searched for could reveal whether federal employees considered the news media policy or other laws protecting journalists, such as the federal Privacy Protection Act and the California shield law, before questioning Carmody.

A failure to search

The Reporters Committee’s motion centers around the Justice Department’s inadequate searches in response to FOIA requests about the Carmody case. In response to the Reporters Committee’s request for “email correspondence, text messages, and other electronic messages” that referred to “Carmody” and other specified keywords, the FBI refused to conduct an actual search for emails and texts.

The agency also failed to search its own San Francisco field office or the records of the two San Francisco-based special agents who questioned Carmody.

These cursory searches, the Reporters Committee argues, fail to satisfy the agency’s obligations under FOIA and deprive the public of newsworthy information about a raid that undercut state and federal protections for Carmody and his sources.

In support of its motion, the Reporters Committee submitted proof that the FBI did not search for or locate records responsive to its request. Through a California Public Records Act request, the Reporters Committee obtained email correspondence between a San Francisco police officer, Lt. Pilar Torres, and Michael Eldridge, a FBI special agent.

In the email chain, Eldridge apologized to Torres for not being “able to get a better result,” likely referring to  his attempted interrogation of Carmody, and thanked the officer for “letting [him] take a shot.”

The FBI should have also disclosed the email chain in response to the Reporters Committee’s federal public records request. However, authorities did not identify this email chain and perhaps other relevant correspondence, as the FBI refused to search through the text of emails and text messages themselves.

Privacy vs. public interest

In the single document the FBI did disclose to the Reporters Committee, the agency redacted the names of the two special agents who questioned Carmody, citing FOIA Exemptions 6 and 7(c).  Those exemptions apply to personal information, and require agencies and courts to balance privacy interests against the public’s interest in the material.

In this case, Reporters Committee attorneys argue, the privacy exemptions should not apply because the FBI special agents who questioned Carmody have no interest in secrecy to begin with. The name of one of the agents, Eldridge, is already public, the brief states, as the San Francisco police disclosed his identity in response to the Reporters Committee’s public records request under the California Public Records Act. Eldrige was publicly identified as an FBI special agent at least as far back as 2014, when he submitted a high-profile search warrant affidavit in a domestic terrorism case.

Even if these FBI agents had any privacy interests, Reporters Committee attorneys argue, it is outweighed by the public’s interest in knowing the identity of who questioned a reporter in  violation of the Justice Department’s News Media Policy.

“Even assuming … that there is any privacy interest in the names of these agents,” Reporters Committee attorneys wrote in the brief, “it is easily overcome by the strong public interest in knowing who was involved in the questioning of a journalist in violation of the DOJ’s News Media Policy.”

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.