FBI must say if it has documents sought by inmate

A U.S. appeals court ruled on Tuesday that the federal Freedom of Information Act requires the FBI to disclose to an attorney representing a Texas death row inmate whether it has records that could corroborate his client’s claims of innocence.

The U.S. Court of Appeals in Washington, D.C., held in Roth vs. U.S. Department of Justice that the public’s right to know whether the FBI has these records outweighs any privacy interests of three men who may be linked to a 1983 quadruple homicide at a ranch near Sherman, Texas.

Counsel submitted the two FOIA requests at issue to the FBI in 2008. The first asked for, among other things, “any and all records” relating to the men death row inmate Lester Leroy Bower Jr. alleges to be the real killers. The second request sought documents from particular FBI files that contain information about the FBI's investigation of the murders.

The FBI responded to the first request with a “Glomar” response, which is a response that neither confirms nor denies the existence of the records. Courts permit such a response when, according to the government, confirming or denying the existence of the record would itself cause cognizable harm under a FOIA exemption. The FBI relied on FOIA exemptions 6 and 7(C) to support its Glomar response. Exemption 6 allows the FBI to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Exemption 7(C) allows the FBI to withhold law enforcement records for which a disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The court made clear that the FBI will not necessarily need to release the records, if they exist, because the information contained within them could still be subject to any of the various FOIA exemptions once the FBI reviews any existing files. “But the mere fact that records fall within a FOIA exemption provides no justification for failing to acknowledge their existence,” the court said.

Because the court agreed with the government that even acknowledging that these records existed would “tend to associate them with criminal activity, impinging on their privacy,” the court required Roth to meet the standard created by the Supreme Court in National Archives and Records Administration v. Favish. Under the Favish standard, Roth would have to “produce evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred” before the court would even balance the public’s interest in knowing whether the FBI was withholding these documents with the privacy interests of the men involved.

When Roth met that burden, the court decided that the “balance tips decidedly in favor of disclosing whether the FBI’s files contain info linking [the three men] to the FBI’s investigation of the killings.”

“Although [the three men] have a significant interest in avoiding any association with a criminal investigation into a quadruple homicide . . . the public also has a compelling interest in knowing whether the FBI is refusing to disclose information that could help exonerate [the man convicted],” the court said.

The FBI either has to produce any records it may have linking the three men to the murders, “or it must follow the normal practice in FOIA cases of identifying the records it has withheld and stating its reasons for doing so,” the court said.

In response to the second request, the FBI withheld some documents in their entirety and delivered some with information redacted. The FBI cited FOIA exemptions 6, 7(C) and 7(D) when withholding the information. Exemption 7(D) allows the FBI to withhold information that could “reasonably be expected to disclose the identity of a confidential source.”

The court, which reviewed the documents at issue in the second request, said most of the redactions were proper. However, it raised questions about two paragraphs of information redacted under 7(D) that may have been improperly redacted, and remanded the case to the trial court to rule on whether information in those paragraphs is otherwise exempt under exemptions 6 or 7(C). It also ordered the FBI to produce everything that is not exempt.

A dissent filed in the case argued that “the public’s interest in ensuring that innocent people are not wrongly convicted or subjected to prosecutorial or investigative misconduct is properly vindicated in the ordinary criminal and civil litigation processes — where personal privacy is not as weighty a consideration as it is under FOIA.” He pointed out that the conviction and death sentence had been affirmed on appeal, and in state and federal habeas corpus proceedings.