Politico

Judge balks at FBI’s 17-year timeline for FOIA request

Written by Lisa

Getting answers to Freedom of Information Act requests is often a protracted and tiring process, but how long a wait is too long?

One federal judge just came up with an answer: 17 years.

U.S. District Judge Gladys Kessler bluntly rejected the Federal Bureau of Investigation’s proposal that documentary filmmaker Nina Seavey wait until the year 2034 to get all the law enforcement agency’s records for a request pertaining surveillance of anti-war and civil rights activists in the 1960s and 1970s.

The request involved an unusually large amount of material — about 110,000 pages of records at the FBI and more at other agencies — but Seavey said waiting almost two decades for the complete files wasn’t viable for her.

“Literally, they were talking 17 years out. I’m 60 years old. You can’t do that math,” the George Washington University professor and documentarian told POLITICO this week. “It wasn’t going to work for me.”

The FBI said it has a policy of processing and releasing large requests at a pace of 500 pages a month, while Seavey, represented by D.C. transparency lawyer Jeffrey Light, had proposed 5,000 pages a month. (At one point, the FBI thought it had about 150,000 pages of responsive records, which would’ve meant a 25-year wait.)

Justice Department lawyers and the FBI argued that going faster than 500 pages a month would disrupt the agency’s workflow and create the possibility of a few massive requests effectively shutting down the rest of the their FOIA operation.

Kessler didn’t buy it.

“Neither proffered justification is persuasive,” the Clinton appointee wrote. “In the name of reducing its own administrative headaches, the FBI’s 500-page policy ensures that larger requests are subject to an interminable delay in being completed. Under the 500-page policy, requestors must wait 1 year for every 6,000 potentially responsive documents, and those who request tens of thousands of documents may wait decades.”

Kessler’s 12-page opinion issued last week noted that there is a legal provision to hold a FOIA request at bay when an agency faces “exceptional circumstances,” but the FBI did not invoke it.

“The agency’s desire for administrative convenience is simply not a valid justification for telling Professor Seavey that she must wait decades for the documents she needs to complete her work,” the judge wrote.

Kessler also said the figures the FBI gave the court didn’t really prove that speeding up large requests would slow down smaller ones.

“If the FBI really wanted to demonstrate that processing larger FOIA requests would impact the processing of other requests there are numerous data points it could provide the Court…Instead, the limited data the FBI has provided suggests exactly the opposite,” she wrote, calling the workload information provided to the court “unilluminating.”

The judge also said the FBI’s policy of treating multi-part requests as a single request when doling out the 500 pages a month creates a perverse incentive to break up a request in order to game the system.

Ultimately, Kessler ordered the FBI to process 2,850 pages a month, which should get Seavey the records she’s seeking within three years.

Seavey said she was heartened by the ruling, which she believes will help other requesters in a similar predicament.

“The import of this case is much bigger than we anticipated,” she said. “She said the government’s case was without merit and untenable…She allowed this case to be used as precedent.”

Spokespeople for the Justice Department and the FBI declined to comment on the decision.

It’s not the first FOIA case to produce staggering estimates of how long the government would need to make records public. Last year, the State Department rebuffed a request for emails of aides to former Secretary of State Hillary Clinton, saying it could take 75 years to work through the material.

Seavey’s film project focuses on what she called the “ripple effects” of the May 4, 1970, shooting of four students by national guardsmen at Kent State University in Ohio.

Seavey said she is going through records now every day from similar requests filed with the CIA and the National Archives.

“What I’m finding in this material is really astonishing,” she said, adding with a laugh: “I’d say it’s worth the wait, but I probably started this ten years ago.”

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