FBI headquarters in Washington, DC claims it can't find any internal documents the agency may have on the protest movement known as Occupy Wall Street, according to a letter the agency sent to Truthout in response to a Freedom of Information Act (FOIA) request.
Truthout filed a FOIA request with the FBI on October 31, seeking a wide-range of documents, including "emails, memos, audio/video, transcripts, reports, threat assessments," in which Occupy Wall Street was discussed internally by agency officers and/or senior officials and/or any correspondence the agency had about the protest movement with local law enforcement and/or with local government officials.
Our request also sought documents related to any discussions that may have taken place "between FBI personnel, including FBI field agents" and the "CIA and Department of Homeland Security (DHS), related to the protest movement known as 'Occupy Wall Street.'"
FBI FOIA Chief David Hardy responded to our FOIA request in a letter dated November 15, which said, "based on the information [Truthout] provided, we conducted a search of the Central Records System," a computerized database where most of the agency's records are indexed. "We were unable to identify main file records responsive to the FOIA."
We were surprised the FBI provided us with a final response to our FOIA request within two weeks, given the agency's FOIA backlog and the lengthy wait times we have faced in response to other requests we have filed. We were even more surprised to learn the FBI was unable to locate a single document in which officers and officials discussed Occupy Wall Street, a global movement which, in the past month, has resulted in violent crackdowns by local law enforcement in more than a dozen cities.
Our first reaction was that the FBI was not being forthcoming in its response to our FOIA request. We already know that Jordan T. Lloyd, a member of the FBI's cybersecurity team in New York, received dozens of emails about Occupy Wall Street he was sent by a man who identified himself as a conservative computer security expert and gained access to the group's listserv. Loyd responded to at least one of the emails.
Our suspicions about the veracity of the FBI's response were heightened when blogger Marcy Wheeler noted in a recent post that the Justice Department recently admitted that it had been lying in response to requests for certain documents related to ongoing investigations, informants and classified intelligence for more than two decades by stating "there exist no responsive records to your FOIA request."
Aside from that troubling revelation, the FBI has long had a deplorable record when it comes to conducting a thorough search of its records for documents responsive to FOIA requests. Indeed, a 2009 study conducted by George Washington University's National Security Archive (NSA), which publishes declassified documents and files numerous FOIA requests, noted that "during fiscal year 2008, the FBI gave 'no records' responses to 57% of the requests it processed, more than any other major agency."
“The FBI knowingly uses a search process that doesn’t find relevant records,” Archive director Tom Blanton said at the time.
Archive General Counsel Meredith Fuchs provided an example of this during an interview with a local Fox News affiliate in 2008 in which the NSA's request for records from the FBI on "Al Qaeda" was denied because the agency had "no records."
Still, despite those statistics (we were unable to obtain updated figures), Truthout determined that our FOIA request to the FBI fell short. For example, our FOIA request was filed directly with FBI headquarters. We did not file FOIA requests seeking documents pertaining to Occupy Wall Street with FBI field offices, such as the one in New York City.
According to the article, "FOIA Facts: Understanding FBI Records," published in 2007, it's not that the FBI is "lying" when the agency claims it does not have "records responsive to FOIA, instead "they just have devised a system that makes requesters to [sic] go through hoops to find the information they are seeking."
"If a requester sends a FOIA request to FBI Headquarters in Washington, D.C., the FBI will only check its Central Records System for main files indexed to the subject of the records that are maintained in Washington, D.C.," the article states. "However, many records are not indexed as main files to the FBI's Central Records System and many records are not maintained, in any form, at FBI Headquarters.
"As almost all investigations take place in a Field Office-not at FBI Headquarters, records of investigations are where the investigation was. While some of the records will be sent to FBI Headquarters, the Field Office will have a record of the investigations done there. So a request made to FBI Headquarters for an investigation may very likely get a 'no record' response if the investigation was never reported to FBI Headquarters.... Thus, it is important to make FOIA requests to [sic] not only to FBI Headquarters, but to FBI Field Offices. And it is important to ask for main files and 'cross' or 'see' references. If a request comes back as a 'no record' response, make sure to read the letter thoroughly to see what and where the FBI searched."
But filing FOIA requests directly with FBI field offices does not mean the agency would have handled Truthout's request any differently.
The NSA pointed out that a declaration submitted in federal court by Hardy, the FBI's FOIA chief, in 2009 explained, "Unless a requester specifically asks for a broader search, the FBI will only look in a central database of electronic file names at FBI headquarters in Washington."
"When requesters send their requests directly to relevant field offices for processing, the FBI’s policy is to automatically route all requests back to headquarters for the same inadequate search. Until the requester files suit in federal court, the FBI will not perform a broader search," the NSA said.
It is our understanding, based on discussions with open government experts, that changes to the FBI's FOIA policy over the past two years means the agency is supposed to conduct a search for responsive records in field offices as well. But, in handling Truthout's FOIA request, it does not appear the FBI's search extended to its field offices since the email Loyd sent to the conservative computer expert who provided him with information about Occupy Wall Street did not turn up. We're still waiting for a FOIA officer to respond to our queries about the type of search the agency conducted and if that search included FBI field offices.
UPDATE 11/29/2011: Early Tuesday morning, David Sobonya, an FBI public information office who works in the agency's Record/Information Dissemination Section, told Truthout via email, "Per the new 2009 Attorney General guidelines, all field offices are search[ed] for potentially responsive records. You may however, submit additional FOIA requests." That makes moot the points raised in the 2007 "FOIA Facts" article and indicates Truthout's FOIA to the FBI was filed properly and should have resulted in the FBI locating responsive documents.
To be safe, Truthout has since filed a new set of FOIA requests for documents pertaining to Occupy Wall Street with FBI field offices around the country and we have formally requested the agency conduct a "broader search" of its records to locate responsive documents.
With that said, perhaps officials at FBI headquarters have not been discussing the protest movement or monitoring its activities, even though the agency has been closely watching and infiltrating other political movements.
Additionally, Truthout sought comment from an FBI spokesperson Monday as to whether the agency has been engaged in discussions, either internally and/or with local law enforcement and local government officials, Occupy Wall Street and/or been involved in the recent sweep of crackdowns on the movement's encampments. The spokesperson did not respond to our email or voicemail message.
But the agency, in a carefully worded statement issued last week to the Huffington Post, flatly denied reports that it has been working with local law enforcement in response to Occupy Wall Street.
"Recent published blogs and news stories have reported the FBI has coordinated with local police departments on strategy and tactics to be employed in addressing Occupy Wall Street protestors," the FBI said. "These reports are false. At no time has the FBI engaged with local police in this capacity."
Meanwhile, Truthout also filed a FOIA request with DHS on October 31, seeking the same documents we requested from the FBI as well as any materials that may show the agency and its field offices coordinated and/or worked with local law enforcement or provided any information and/or advice to local officials about Occupy Wall Street.
On Monday, a DHS FOIA officer contacted Truthout requesting we narrow "the scope of [our FOIA] request to include responsive records from senior DHS officials only" due to the numerous requests for documents the agency has been receiving, which has left DHS staff "overwhelmed."
The DHS FOIA officer indicated the agency has located documents relevant to our FOIA and granted our request for expedited processing.