Feds: We can’t disclose FBI records because then public would know how FBI works

Feds: We can’t disclose FBI records because then public would know how FBI works

PrivacySOS | February 1, 2016

Granting the ACLU and the public access to staffing, budgetary, and statistical information about the Boston Joint Terrorism Task Force (JTTF) and FBI would mean “the public would know where the FBI was putting its resources,” warned an Assistant US Attorney in oral argument in a Boston federal court last week. The government apparently doesn’t want the public to know anything about how the FBI and JTTF spend public money, staff its offices, or conduct investigations.
Heaven forbid the public “know where the FBI [puts] its resources.”
In December 2013 the ACLU of Massachusetts sent a FOIA request to the FBI, which sought basic information about the structure and operations of the Boston JTTF and the Boston FBI field office. Amid the information the FBI redacted from its responsive disclosures were all budget figures, the number of FBI and state and local officials tasked to work on the Boston Joint Terrorism Task Force (JTTF), and the number of assessments, preliminary investigations, and full investigations the Boston FBI conducted over two years ago. (It’s odd that the government is putting up a fight, resisting disclosure of these records, given that in 2011, it gave Charlie Savage of the New York Times similar information.)
According to the government, this information is exempt from public disclosure under FOIA law pursuant to Exemption 7e, the part of the federal statute that says agencies do not have to disclose records that would reveal law enforcement “techniques” or “procedures.” But as ACLU of Massachusetts staff attorney Jessie Rossman argues, staffing, budgetary, and statistical information about caseloads do not reveal techniques or procedures.
The stakes for the public are high. If the court agrees with the government’s reasoning and denies the public access to this information, it would put the federal judiciary’s stamp of approval on what attorney Rossman rightfully argues the FBI is seeking in this case: “a categorical [FOIA] exemption for all law enforcement information.”
As Rossman said last week during oral argument, that’s not what congress intended when it wrote the Freedom of Information Act. If lawmakers intended to bar the public from accessing all law enforcement records, they would have written that into the FOIA statute—which they didn’t.
At issue in the ongoing litigation over FBI redactions is whether the public can hold law enforcement agencies accountable for how they spend our money and act in our names. If we don’t know anything about how law enforcement agencies operate, we can’t hold them accountable. Unaccountable law enforcement is not only bad for freedom; it also harms public safety. As history demonstrates, when the FBI is allowed to conduct its business in the dark, precious government resources are inevitably dedicated to spying on people who threaten the status quo, but who do not threaten their fellow Americans.
While antidemocratic in the extreme, it’s easy to understand why the FBI wants to keep budget, staffing, and investigations statistics secret from the public.
When the public learned about the FBI’s illegal and antidemocratic COINTELPRO operations in the 1970s, the attorney general imposed rules forbidding the FBI from spying on people unless agents could show the targets were likely violating the law. After 9/11, those rules were scrapped. The new guidelines allow FBI agents to open investigations (called “assessments”) against people absent any suspicion of wrongdoing. Since the 9/11 attacks the Bureau has been free to spy on people it doesn’t suspect of criminal activity, supposedly because suspicionless investigations are required during the permanent “war on terror.”
The ACLU is litigating for this information because we want to know what results from the FBI’s suspicionless investigations, known as assessments. If it’s true, as we suspect, that there are thousands of FBI assessments but comparatively few preliminary or full investigations—let alone arrests or successful prosecutions—it confirms what we and other civil libertarians have been saying for over a decade. Namely, allowing the FBI to spy on people absent criminal predicates isn’t just bad for civil liberties; it’s bad law enforcement. If agents are routinely chasing down leads that go nowhere, those agents are wasting their time spying on ordinary people on the public’s dime.
The FBI refuses to give us this information, which is part of the reason we sued. In essence, the government argues the information must remain secret because if disclosed, it will tip off terrorists to… the fact that the government wants to investigate crimes.
But hiding from the public records revealing how many assessments, preliminary investigations, and full investigations the Boston FBI office has conducted doesn’t protect public safety. Instead, it obstructs precisely the kind of public accountability that would make the FBI better at protecting the public from people who mean us harm. […]
Only when law enforcement agencies are subject to rigorous transparency can the public hold them accountable for their actions, thereby making them more effective at protecting public safety.
The FBI has a long and dirty history of spying on dissidents and activists, instead of investigating and building cases against people who do real harm to Americans, like the bankers who collapsed the US and world economy in 2008. So it’s easy to see why the government doesn’t want the public to learn any meaningful information about the inner workings of the Bureau. But government agencies can’t keep information secret from the public because it would reveal something embarrassing or unconstitutional. And the records at issue don’t reveal “techniques” or “procedures.”
Here’s to hoping the federal court agrees, and compels the FBI to release this basic information about how it spends our money and acts in our names. Only then will we have any meaningful access to judge how the Bureau is conducting itself, and so the opportunity to exert some democratic accountability over its operations.
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