A federal court judge on Monday ordered the FBI to conduct a new search for documents on Aaron Swartz, the late Internet activist who was being aggressively prosecuted by the federal government for downloading millions of academic articles.
Swartz committed suicide in January 2013 before his case had gone to trial. He was 26.
Last year, Ryan Shapiro and I filed Freedom of Information Act (FOIA) lawsuit against the FBI challenging the veracity of the agency’s search for responsive records about Swartz. Shapiro is a doctoral candidate at MIT who specializes in FOIA research pertaining to the policing of dissent.
The FBI, in response to our February 2013 FOIA request, located 23 pages of responsive records and turned over 21 pages of redacted documents to us. The FBI had previously released those documents to Swartz in response to a FOIA request he filed on himself. The records pertained 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. The FBI cited four exemptions to justify withholding two pages from Shapiro and me.
The FBI had long argued that its search was adequate. But U.S. District Court Judge Paul Friedman disagreed.
“The Court is not persuaded that the FBI has conducted ‘a good faith, reasonable search of those systems of records likely to possess the requested information,’” as required under the FOIA,” Friedman wrote in a 14-page opinion.
He ordered the FBI to produce by June 2 “a supplemental brief accompanied by a declaration or declarations which:
(a) state(s) that the FBI has conducted additional appropriate searches in other databases or record systems and provided any additional responsive records to the plaintiff, or explain(s) why such additional searches would not be reasonable, in light of this Court’s conclusion that the plaintiff’s request was not limited to records of a criminal investigative nature;
that on or before June 2, 2014, the defendant shall file a supplemental brief accompanied by a declaration or declarations which: (a) state(s) that the FBI has conducted additional appropriate searches in other databases or record systems and provided any additional responsive records to the plaintiff, or explain(s) why such additional searches would not be reasonable, in light of this Court’s conclusion that the plaintiff’s request was not limited to records of a criminal investigative nature;
Jeffrey Light, our Washington, D.C.-based FOIA attorney, hailed Friedman’s decision, saying it “shows that the FBI needs to do more than recite boilerplate language stating that their search for documents was reasonable.”
The FBI is notorious for responding to FOIA requests by stating that a search of its Central Records System (CRS) did not turn up “main file records” responsive to a FOIA request. But the FBI often fails to conduct a cross-reference search or even a search of its Electronic Case File (ECF) for responsive records unless specifically directed to do so (take note FOIA requesters).
“The FBI’s declarants, David M. Hardy [head of FBI’s FOIA office] and [his deputy] Dennis J. Argall, state that in response to the plaintiff’s request, the FBI initially searched the FBI’s Central Records System (“CRS”), a centralized FBI record system containing over 116.5 million records, but did not locate any responsive documents. In addition, the FBI searched the Request Tracking System of the FOIPA Document Processing System, in order to locate previous requests for similar information, and was able to locate the 23 pages discussed above,” Friedman wrote.
“Plaintiff raises several objections to the adequacy of the FBI’s search, three of which have merit,” Friedman added.
Those three issues are, “whether request was improperly limited to records relating to criminal investigations, whether an index search is adequate” and “whether the FBI reasonably excluded records received after the cut-off date.”
The FBI “interpreted” our request “as seeking access to records relating to Swartz in the context of a specific law enforcement investigation” and so the agency limited its search for records in that context. But Shapiro and I sought all records on Swartz, not just those pertaining to a criminal investigation.
Friedman agreed.
“In light of the Court’s view that the plaintiff’s request is not confined to records ‘of a criminal investigative nature,’ the FBI will be directed to consider whether responsive records would reasonably reside outside the CRS, and either perform any additional appropriate searches in databases or records systems outside the CRS or explain why additional searches would not be appropriate,” Friedman wrote in his opinion.
Additionally, Shapiro and I requested a full text search of the FBI’s Electronic Case File for records on Swartz. The FBI refused to conduct such a search.
In his declaration, Argall said FBI “does not conduct ECF text searches in response to all requests, particularly in those instances, as is the case here, [where] no such search was warranted.”
Friedman took issue with Argall’s position.
“Mr. Argall provides little further explanation as to why no further search was warranted, simply that ‘there was no reasonable basis for [the FBI] to conclude that additional records about [Swartz] resided in the CRS,’” he wrote. “Although the Court recognizes that a full-text search may not be warranted in every case, it finds the FBI’s explanation as to why it was unwarranted here to be lacking. The Court therefore will direct the FBI to either conduct a full-text search of ECF or provide further explanation as to why such a search is unnecessary in this particular case.”
This appears to be the first time a federal court judge has ever ordered the FBI to conduct a “full-text search” on anything.
Finally, Friedman ordered FBI to provide Shapiro and me with any requests made by third parties for records on Swartz or explain why it was withholding the records. The FBI rejected our initial request, arguing that it was made after “the search cut-off date for plaintiff’s request, and therefore were outside the scope of plaintiff’s request.”
Friedman’s decision in our FOIA lawsuit was issued one day after The Boston Globe published a lengthy report documenting how MIT and JSTOR, the nonprofit outfit that maintained the academic journal database Swartz hacked into and downloaded, helped the government in its pursuit of Swartz.
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