United States Project

How some recent FOIA news could help–and limit–access to government records

July 25, 2016

If nothing worth having comes easy, then freedom of information must be worth a lot. A recent FOIA reform promises to improve access to public records, and a federal appeals court decision this month made clear that agencies cannot shield their records from disclosure by storing them in a private email account—each a sign of progress. But other recent developments point toward the enduring challenge of empowering “citizens to know what their Government is up to,” as the Supreme Court once said.

In a story last week, ProPublica reporters told “aneurysm-inducing tales of protracted jousting with the public records offices of government agencies.” Jesse Eisinger, for example, said the SEC once told him that it would take 36 months to begin processing a request he filed, and Julia Angwin said it took an agency two years to fulfill (partially) one of her requests—by mailing the records to the wrong person, who herself had been waiting years for a response from the same agency. The tales paint an ugly portrait of a press and public that too often struggle to wrest documents from government control.

That struggle is highlighted again in a lawsuit filed this month, in which an MIT doctoral candidate is alleging that the FBI uses decades-old technology so its record searches fail “by design.” Meanwhile, in a separate case, a federal appeals court reversed a 20-year precedent requiring mugshots to be released under the FOIA—showing that as public-records laws continue to evolve, it is not always in the direction of greater transparency.

Let’s take the cases one at a time.

A federal court changes its mind on mugshots

Twenty years ago, the US Court of Appeals for the Sixth Circuit ruled that the FOIA requires the release of mugshots of criminal defendants appearing in ongoing court proceedings. But in a recent ruling, the court reversed that holding, saying agencies may withhold mugshots in some cases because of privacy concerns.

The case began three years ago when the US Marshals Service refused to disclose the mugshots of several Michigan police officers charged with federal crimes. The Detroit Free Press, which was also the plaintiff in the 1996 case, sued the DOJ and eventually argued the case before the Sixth Circuit, where the Reporters Committee for Freedom of the Press filed a supporting brief on behalf of 37 media organizations.

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In its ruling, the court did not adopt the government’s argument that mugshots are categorically exempt from disclosure under the FOIA. Instead, it adopted a case-by-case approach for evaluating whether an agency may withhold such photos, weighing the public interest in disclosure and the defendant’s privacy interests.

The majority opinion emphasized the privacy implications of digital media (“In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades”), and it discussed the emergence of websites that publish mugshots obtained from law-enforcement agencies in order to solicit money for their removal.

“Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection,” the court concluded. “Potential employers and other acquaintances may easily access booking photos on these websites, hampering the depicted individual’s professional and personal prospects.”

In a dissenting opinion, one judge argued that mugshots help citizens understand how government agencies exercise power in their name, and reasoned that “[a]n individual who has already been indicted, and who has already appeared in open court, has no cognizable privacy interest in his booking photograph because neither he nor society expects that it will be hidden from … view.”

The case now returns to the trial court, which will decide whether the police officers’ mugshots must be disclosed.

Are ‘outdated’ computer systems foiling FOIA?

Ryan Shapiro is an MIT doctoral candidate whose interests span vegetarianism, national security, and the regulation of dissident voices—and, according to the DOJ, he was at one time the FBI’s “most prolific” FOIA requester, averaging two requests per day. Now, he’s suing the Department of Justice and claiming that the FBI conducts record searches using an antiquated system, in turn limiting the effectiveness of the searches.

The legal hook is that the FOIA requires agencies to “make reasonable efforts to search for the records in electronic form or format.” In his complaint, Shapiro argues that the FBI has violated that provision by using an “outdated” application to search its central records system, and by refusing to use “any of the more modern and comprehensive search tools available to the FBI.”

In the complaint, filed in the US District Court for the District of Columbia, Shapiro recounts many attempts to obtain records in the last two years, only to be told that the FBI couldn’t find them.

For example, he wants records about an FBI effort to publicize what the agency saw as problems created by the 1974 FOIA amendments. (The goal of the effort was to plant seeds for legislation limiting the FBI’s responsibilities under the FOIA.) The FBI told Shapiro that it couldn’t locate any responsive records, so he requested records about the processing of his earlier requests. When the FBI denied that request, too, Shapiro filed the complaint.

The DOJ had not responded, at the time this story was published, to an email requesting comment.

Notably, in January, a federal judge, in the very same court where he filed this suit, ruled for Shapiro in a related case—concluding that the FBI could not categorically withhold records related to the processing of FOIA requests. Shapiro hopes to use that precedent to support his pending complaint—and, according to The Guardian, ultimately “to change policy across the entire department.” If he wins, the struggle for records may get a little bit less daunting.

Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.