PARISS BRIGGS ~ Posted on March 13, 2019 ~ rcfp.org
Q&A: What the Reporters Committee’s recent FOIA win means for the public and journalists
The U.S. District Court for the District of Columbia has ruled the Federal Bureau of Investigation must search for and produce records related to the agency’s impersonation of documentary filmmakers during investigations in response to a request from the Reporters Committee for Freedom of the Press for more information about the practice.
After learning the FBI impersonated a documentary film crew to investigate Nevada rancher Cliven Bundy and his followers following a 2014 armed standoff between Bundy and the U.S. Bureau of Land Management, the Reporters Committee requested access to records related to this practice under the Freedom of Information Act. The FBI issued what’s known as a Glomar response, refusing to confirm or deny the existence of records responsive to the Reporters Committee’s request. The Reporters Committee challenged that response, arguing that it was improper, and the D.C. District Court agreed.
Jennifer Nelson, a litigation fellow at the Reporters Committee who has worked on the case, discusses the events that led the Reporters Committee to bring this lawsuit, the importance of the D.C. District Court’s ruling and the negative impact that the FBI’s practice of impersonating journalists has on newsgathering.
What prompted the Reporters Committee to file this lawsuit against the FBI?
The Reporters Committee has been interested in the FBI’s impersonation of reporters generally for a long time. Before we brought this case, we were already litigating against the FBI along with the Associated Press regarding the FBI’s impersonation of an AP editor in 2007.
After we learned that the FBI had impersonated a documentary film crew — Longbow Productions — to trick Nevada rancher Cliven Bundy, his sons, and a few of his supporters to give on-camera interviews, we knew that we wanted to learn more. Documentary filmmakers are also members of the news media, and the FBI’s impersonation of filmmakers is just as troubling as the agency’s impersonation of newspaper journalists. We filed a FOIA request in order to learn more not just about the creation of Longbow Productions, but also about other instances in which the FBI has impersonated documentary filmmakers in criminal investigations.
This lawsuit was filed in 2017. How has it played out thus far? How did we get to this point?
We filed the lawsuit after the FBI did not release records in response to our FOIA request. The FBI has since released a small handful of records specifically related to the FBI’s policies and guidelines surrounding the impersonation of documentary filmmakers. After the FBI issued a Glomar response to the portion of our FOIA request related to other instances where the FBI has impersonated documentary filmmakers in criminal investigations, the parties agreed to separate the issues and present the Glomar issue to the court for a decision now.
What is a Glomar response?
A Glomar response is when an agency refuses to confirm or deny the existence of materialsresponsive to a FOIA request. An agency’s argument when it issues a Glomar response is that even confirming or denying that records exist in response to a FOIA request would cause a harm that falls under one of the exemptions to FOIA.
In this case, the FBI argued that confirming or denying the existence of records related to other instances where the FBI has impersonated documentary filmmakers would cause a harm under Exemption 7(E) — meaning it would disclose secret law enforcement techniques or reduce or nullify the effectiveness of those techniques.
When agencies like the FBI issue a Glomar response, or when they don’t comply with FOIA, how does that affect the public?
The whole purpose of FOIA is to provide public records to the public. When you have an agency taking a position that is overly broad, withholding documents or issuing a Glomar response when they shouldn’t be doing so — which the court found was exactly what happened in this case — the public is harmed because it is not getting the information it’s entitled to.
When the FBI impersonates a member of the news media, such as documentary filmmaker, how does it affect the public’s access to information?
In our lawsuit, we submitted affidavits from two documentary filmmakers who detailed the negative effects they experienced due to the FBI’s practice of impersonating documentary filmmakers. This included situations where sources of theirs would ask them, “Are you actually an FBI agent?” Their sources implied that they could not trust the filmmakers because they didn’t know if they were FBI agents or actually journalists. If you have instances where journalists — such as documentary filmmakers — are not able to get the full story, that trickles down and limits what information is able to be provided to the public. There’s a chilling effect, and the result is not just harm to the journalist and their work, but also to the public, who is denied information it would otherwise receive.
This case was a win for the Reporters Committee because the court ruled the FBI couldn’t refuse to confirm or deny the existence of the records. Why is this win so important?
The FBI will now actually have to search for those records. It’s extremely important that we have an understanding of how often the FBI engages in this practice and when else they have used this tactic because it really has a harmful effect on journalists. It has a chilling effect on their work. Understanding how often this tactic is used and being able to report on that and give an understanding to people so they know what’s going on is really important. It’s very much in the public’s interest.
That being said, any responsive records that the FBI may release are still subject to redaction under the various FOIA exemptions, so this ruling doesn’t mean we’re going to get every document without redactions from the FBI. We’ll still have to see what they produce to us, see what those redactions are, and then decide if we want to challenge those redactions in court.
Does FOIA guarantee public access to these records? Why is it so hard to obtain them?
The answer to that is complicated. Certainly, we have the ability to request these records, and the FBI is supposed to search for, process and release those records that are not subject to certain exemptions that are lawful under FOIA. FOIA has a number of exemptions that permit an agency to lawfully redact or withhold some information as needed. This is done to protect, for example, as with Exemption 7E, legitimate law enforcement interests. We didn’t believe that was the case in this matter, which is why we challenged the FBI’s Glomar response.
When an agency claims information is protected under an exemption — even if it’s believed there’s no reason for it to be — how difficult is it to convince the court this information should be released?
It varies based on the exemption. Some exemptions are more difficult to challenge than others, so it’s on a case-by-case basis. We have to take a look at the records when we get them, see what the redactions are and if we’re going to challenge them and adjust our arguments accordingly. Also, the case law has developed differently for each exemption, so different standards can be applied. So it depends a lot on what’s being withheld and why the agency is arguing it’s withholding the materials.
Since this case fell under Exemption 7(E), why did the Reporters Committee argue the FBI’s response was inappropriate?
We had a number of different arguments. Our first was that the impersonation of documentary filmmakers is an investigation technique that is already well known to the public. As such, the FBI should not be able to issue a Glomar response, because the interest they’re seeking to protect — the secrecy of the tactic — is inapplicable. Courts that have analyzed withholdings under Exemption 7(E) have looked at whether the technique at issue is well known to the public and whether releasing information about that technique would reduce or nullify the effectiveness of that technique. The idea in a challenge is that if the technique is already well known, then the FBI shouldn’t be able to argue under Exemption 7(E) that confirming or denying the existence of records related to the practice would harm their ability to use it. The FBI argued that confirming or denying the existence of records regarding the FBI’s impersonation of documentary filmmakers would reduce or nullify the effectiveness of this technique. That argument doesn’t make much sense, and the judge picked up on that. The judge held that because impersonation of documentary filmmakers is a law enforcement technique that is commonly known to the public and simply acknowledging the existence or absence of records related to it wouldn’t reduce or nullify the effectiveness of the technique, the FBI could not issue a Glomar response.
We also argued that the FBI’s Glomar response was inappropriate here because the agency has officially acknowledged the existence of records. The court didn’t have to reach that argument because it held that the FBI had failed to justify its Glomar response under Exemption 7(E).
The third argument we made was that allowing the FBI to issue a Glomar response in this situation would cause First Amendment harms. The court acknowledged we made that argument but didn’t have to reach it because it was able to deny the FBI’s use of a Glomar response based on our first argument.
We touched upon how the FBI’s impersonation of journalists and documentary filmmakers can negatively affect the public, but what overall impact does this technique have on newsgatherers?
Journalists and documentary filmmakers are often asked to go into dangerous situations. For example, with this case regarding Longbow Productions, there were documentary filmmakers conducting interviews and research, and practicing journalism during the Bundy ranch standoff. There were armed militias present and violence occurred. Journalists are putting themselves into dangerous situations all the time, and if you have a source who does not know if you are a journalist or an FBI agent, and they incorrectly conclude the latter, it can be dangerous for the journalist who does not have access to backup or a weapon or training that would allow them to defend themselves if needed. One of the two documentary filmmakers who submitted an affidavit in this case, Abby Ellis, talked about how nervous it made her to have some of her sources question her and say, “I don’t know if I can trust you.” The FBI’s sting operation using Longbow Productions has made her nervous going into some of these dangerous situations because she can’t predict if someone’s going to assume she’s a government agent and perhaps turn on her. In these current times, where there are many threats of violence against journalists, having the FBI engage in this practice causes a significant harm and threat to journalism and the trust that sources have to place in journalists who are recording and telling their stories. It negatively affects a journalist’s ability to gather the news if they can’t gain the trust of their sources.