The agency claimed in a letter, sent to Truthout and a researcher in response to two separate Freedom of Information Act (FOIA) requests, that the release of any documents the agency has on the late Internet activist would interfere with its "enforcement proceedings." The US Secret Service has refused to release its records on Aaron Swartz to Truthout.
"With regard to your request to have access to your [sic] file, we regret to inform you we cannot comply," states a February 21 letter to Truthout from the Secret Service. "Under provisions of the FOIA, there are no documents or records available to you at this time."
Moreover, "pursuant to 5 U.S.C. 552(B)(7)(A), your file [sic] is being exempted since disclosure could reasonably be expected to interfere with enforcement proceedings. The citation of the above exemption is not to be construed as the only exemption which may be available under the FOIA."
Under FOIA, exemption (b)(7)(A) authorizes the withholding of records that are compiled for law enforcement purposes, "but only to the extent that production of such law enforcement records or information … could reasonably be expected to interfere with enforcement proceedings."
Swartz, who took his life last month at 26, was being investigated for alleged document theft from a database that housed journal articles he accessed at the Massachusetts Institute of Technology (MIT). Truthout filed FOIA requests on Swartz with the Secret Service and other government offices to determine if any responsive records would shed light on why federal prosecutors were so aggressive in their pursuit of him.
A FOIA analyst at the Secret Service, which is under the purview of the Department of Homeland Security, told Truthout Tuesday that despite the Justice Department dropping its case against Swartz, "our investigation is still open and we cannot release any information on that subject."
The analyst would not disclose her name, saying she is not required to give it out. We were then transferred to Latita Payne, the Secret Service's FOIA disclosure officer, who explained to Truthout, "we did a search of our offices [for responsive records] and they responded that it's an open case."
Payne said there weren't any segregable portions of records on Swartz that the Secret Service could release. She said we could appeal the agency's decision, which we have. In the interim, Payne said she would try to gather additional information about why the case remains open when the subject of the probe is deceased.
On Wednesday, Payne backtracked and told Truthout the Secret Service would now reopen our FOIA case "and request responsive documents from the appropriate field office so we can process them."
"We had to go a step further and determine why [Swartz's case was still] open," Payne said, explaining that the investigation remained active due to "administrative matters."
Swartz was indicted in 2011 on federal wire and computer fraud charges for allegedly illegally downloading more than 4 million journal articles and documents from JSTOR, a subscription database of journal articles, that he intended to distribute to the public for free.
Federal prosecutors claimed Swartz broke into a wiring closet in the basement of a research building at MIT and connected a laptop to the university's network and uploaded the academic articles to Amazon's cloud server. He faced more than 35 years in prison
A couple of days prior to his arrest in January 2011, the Secret Service took over from Cambridge, Massachusetts, police the investigation into Swartz's activities, court documents show.
As Truthout previously reported, after he was arrested Swartz filed more than a dozen FOIA requests in what appeared to be an attempt by him to gain insight into the government's investigation into his activities. One of his FOIA requests sought from the Secret Service, "Any records on the procedures the Secret Service uses for reading encrypted hard disks." Swartz was apparently still waiting for the agency to locate responsive records at the time of his death.
Investigative blogger Marcy Wheeler, who examined the court documents in Swartz's case, noted that the "involvement of the Secret Service just as [Swartz's case] evolved from a local breaking-and-entry case into the excessive charges ultimately charged makes it clear that this was a nationally directed effort to take down Swartz."
But the Justice Department dropped its criminal case against Swartz, a standard practice when a defendant dies, three days after Swartz's suicide. However, there have been congressional inquiries on the Justice Department's prosecution, including by the House Committee on Oversight and Government Reform.
The Republican chairman of that committee, Darrell Issa, told the Boston Globe on Wednesday that he plans to expand his initial probe. Executive Branch agencies often claim that they cannot release documents when there is an internal or congressional review of a prosecution or other investigations.
Ryan Noah Shapiro was hoping to find out why the Secret Service initially refused to process documents related to Swartz's case as well. Shapiro is a doctoral candidate at MIT who specializes in FOIA research pertaining to the policing of dissent. He also filed a FOIA request with the Secret Service seeking records on Swartz and received the same response as Truthout.
Shapiro has since appealed the Secret Service's decision and is considering suing if his appeal is denied and responsive records are not turned over. [Full disclosure: This reporter is a co-plaintiff with Shapiro and another journalist in a FOIA lawsuit against the FBI].
The lack of transparency, however, is not limited to the Secret Service. Shapiro and Truthout, as well as a contributor to Firedoglake, Daniel Wright, also sought Swartz's case file from the FBI. The FBI located 23 pages of responsive records and turned over 21 pages of documents to us on February 14, citing four exemptions authorizing the bureau to withhold two pages on privacy grounds, if the records would reveal law enforcement "techniques and procedures" in investigations or prosecutions and if disclosure "could reasonably be expected to endanger the life or physical safety of any individual."
The records the FBI did release pertain to a 2008 investigation the bureau conducted into Swartz's attempts to download millions of pages of federal public court documents housed on the Public Access to Court Electronic Records (PACER) system, a database that charges users about 10 cents per page. The investigation against him was dropped.
But Shapiro, who is interested in obtaining records on Swartz to "examine law enforcement's role in investigating political protest," believes there are more records the FBI has on Swartz. Shapiro and Truthout have appealed the adequacy of the FBI's search for records on Swartz.
"It's unlikely this is all the FBI has on him," Shapiro said. "Given Swartz's long history of activism and the FBI's much longer history of investigating activists, it's improbable the PACER downloads were Swartz's only actions that sparked FBI interest."
Shapiro, a frequent FOIA requester, chalks up the lack of transparency by the FBI and Secret Service to "the Obama administration's seeming contempt for transparency."
"Obama entered office promising unprecedented openness," Shapiro added. "Sadly, his administration has frequently provided just the opposite."
Truthout has also filed a FOIA request with the Justice Department's Executive Office of US Attorneys, the division responsible for matters related to Swartz's criminal case, for all records that office has on him. That request is currently being processed.