Revealed: The FBI's Secretive Practice of "Blackballing" Files

[Magda Hassan]

Wow. You mean they don't always give you the information like they should? Shocked.

Revealed: The FBI's Secretive Practice of "Blackballing" Files

Tuesday 17 January 2012
by: Jason Leopold, Truthout | Report

(Photo: kalavinka; Edited: JR / TO)


Have you ever filed a Freedom of Information Act (FOIA) request with the FBI and received a written response from the agency stating that it could not locate records responsive to your request?
If so, there's a chance the FBI may have found some documents, but for unknown reasons, the agency's FOIA analysts determined it was not responsive and "blackballed" the file, crucial information the FBI withholds from a requester when it issues a "no records" response.
The FBI's practice of "blackballing" files has never been publicly disclosed before. With the exception of one open government expert, a half-dozen others contacted by Truthout said they were unfamiliar with the process of "blackballing" and had never heard of the term.
Trevor Griffey learned about "blackballing" last year when he filed a FOIA/Privacy Act request with the FBI to determine whether Manning Marable, a Columbia University professor who founded the Institute for Research in African-American Studies, sought the FBI's files on Malcolm X under FOIA. At the time of his death last April, Marable had just finished writing an exhaustive biography on the late civil rights activist. Griffey filed the FOIA hoping he would receive records to assist him with research related to a long-term civil rights project he has been working on.
In a letter the agency sent in response to his FOIA, the FBI told Griffey that it could not locate "main file records" on Marable responsive to his request. Last November, in response to a FOIA request Truthout filed with the FBI for a wide-range of documents on the Occupy Wall Street, the agency also said it was unable to "identify main file records responsive to [our] FOIA," despite the fact that internal FBI documents related to the protest movement had already been posted on the Internet. The FBI has been criticized in the past for responding to more than half of the FOIA requests the agency had received by claiming it could not locate responsive files.
Griffey, who also teaches US history at The Evergreen State College in Olympia, Washington, and is co-editor of the book, "Black Power at Work: Community Control, Affirmative Action and the Construction Industry," was baffled. He found it difficult to believe that Marable would not have filed a FOIA for Malcolm X's FBI file. So, he sent an email to an FBI FOIA analyst asking for clarification.
The FBI FOIA analyst responded to Griffey in an email, asking him to supply additional "keywords" to assist in a search of the agency's main file records for documents on Marable responsive to his FOIA request. The analyst then disclosed to Griffey, perhaps mistakenly, that a search for previous requests for records on Marable turned up a single file that was "blackballed" per the agency's "standard operating procedure."
So last May, Griffey again turned to FOIA, this time to try and gain insight into the blackballing process. He filed a FOIA request with the FBI seeking a copy of the agency's standard operating procedure for "blackballing" files.
Two months later, he received five pages from an untitled and undated PowerPoint presentation that outlined procedures for blackballing files from FOIA requests. The FBI cited three exemptions under the law to justify withholding a complete and unredacted copy of the PowerPoint:

(b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law ...

Griffey appealed the FBI's decision to withhold information contained in the PowerPoint under the (b)(7)(E) exemption, but it was denied.
Still, the PowerPoint pages the FBI did turn over to Griffey provide insight into the "blackballing" process. On a page titled, "Blackball Files," it says files identified as 190 and 197 "main files," which are FBI classifications pertaining to FOIA/Privacy Act requests for files on people and civil litigation, are blackballed unless "specifically ask[ed] for" by the requester when an initial FOIA request is made.
Moreover, the agency deems certain "control files," "separate files which relate to a specific matter and is used as an administrative means of managing, or 'controlling' a certain program or investigative matter," that pop up and are unresponsive to a FOIA to be ripe for blackballing. However, a FOIA analyst must first get permission from a supervisor before a "control file" can be blackballed.
Finally, according to the PowerPoint, some files are automatically blackballed by an FBI FOIA analyst, but the public is not permitted to know the classification of files that fall into that category because the FBI redacted that part of the PowerPoint, claiming disclosure would reveal "techniques and procedures for law enforcement investigations and procedures."
"Not only are we not told when the FBI withholds material from FOIA requests, but we are not even allowed to know all of the kinds of material it withholds," Griffey told Truthout. "The law itself and not just its enforcement, is now effectively secret."
But Bill Carter, an FBI spokesman, told Truthout in an interview that "blackballing" is not about secrecy nor is the process used in any way to conceal responsive records, which the Justice Department revealed it has been doing for more than two decades in certain cases.
"Blackball is a term of art used by the [FBI's] FOIA section people in the records management division," he said. "It's an unfortunate term. It applies to people and events. It means that we pulled a file that initially looked responsive but after a review it turned out it wasn't because the file didn't match the requesters' specific request" for records.
Carter sent Truthout an email that contained an explanation of the blackballing process as provided to him by Dennis Argall, the assistant section chief of the Record/Information Dissemination Section, FBI's Records Management Division:

"[B]lackball" is a term we typically use to describe a file (not a request) that initially looked responsive but upon review we find it's for a different guy or event. It can also be used to describe a file that we won't process because, i.e., a guy makes a request for his "FBI file" in 2005 and [we] process it for him. When he makes another request for his "FBI file" in 2011, we will only process his "records" but will not process the file that was created to respond to the 2005 FOIA request, which is 190 file series [the classification the FBI uses for files requested on people].

That's exactly how the FBI described the blackballing process to attorney Kel McClanahan, executive director of Arlington, Virginia-based National Security Counselors, a public interest law firm.
McClanahan told Truthout in an email interview that he first learned about blackballing when the term was used in a set of FBI "processing notes" he requested from the agency to determine how FBI FOIA analysts had handled one of his FOIA requests.
Although McClanahan believes there is "definitely a place for blackballing in the FOIA process" he said the way the FBI "does blackballing leaves a lot to be desired."
"First of all, even though [the FBI] may blackball 50 records and release 3, they never tell the requester about the 50," McClanahan said, hitting on Griffey's main complaint about blackballing. "They never mention word one about 'and we found other records that we deemed non-responsive.' The requester is left to wonder why the FBI only found 3 records about the subject in question and he will never know that they found 50 others that they ultimately deemed non-responsive unless he has the foresight to FOIA the FBI's processing notes for his request. Knowledge like that is very important when a requester is trying to decide whether or not to tie up [the Justice Department's's Office of Information Policy] with an administrative appeal, let alone litigation."
McClanahan said his concerns would largely be addressed if the FBI "only blackballed records for good reasons."
"If I could trust the FBI only to blackball things that were clearly non-responsive, I don't need to know that they found completely unrelated records," he added. "However, that's not what the FBI does. I have seen it blackball records because they 'weren't FBI records,' even though they were in FBI files (they were FBI copies of other agencies' records, which any FOIA person worth his salt knows are still responsive to a FOIA request made to FBI). I've seen it blackball records because the request asked for 'internal FBI records' and the records in question were sent outside of the FBI, based on a strained interpretation of the word 'internal.'"
The FBI will be forced to make a choice "if it wants to apply FOIA correctly," McClanahan said.
"The agency can either limit its blackballing to records that nobody would think are responsive (e.g. different people with the same name, records outside a set time frame); or it can tell requesters in the administrative stage that it determined that certain records were non-responsive and why," he said. "Failing to do either, however, is bad FOIA."

[Magda Hassan]

"Blackballing" FOIA requests at the FBI is bad practice, says expert

Submitted by sosadmin on Wed, 01/18/2012 - 11:31 Truthout's Jason Leopold ran a story yesterday detailing the FBI's process of "blackballing" FOIA requests. The process has benign reasons to exist, but appears to be used to inappropriately deny FOIA requesters the records they seek.
An FBI spokesman told Leopold what the term means:

"[B]lackball" is a term we typically use to describe a file (not a request) that initially looked responsive but upon review we find it's for a different guy or event. It can also be used to describe a file that we won't process because, i.e., a guy makes a request for his "FBI file" in 2005 and [we] process it for him. When he makes another request for his "FBI file" in 2011, we will only process his "records" but will not process the file that was created to respond to the 2005 FOIA request, which is 190 file series.

Makes sense, right? The FBI won't give you redundant files generated in response to prior FOIAs, or records that appear to match your search criteria but upon human inspection, are unrelated. Seems like a good practice. So what's the problem?
Leopold found that sometimes the "blackball" policy is used to deny records that are responsive to requests, and are not redundant. In other words, it is used to inappropriately deny records to people when those records should be released.
That's what Kel McClanahan, an Arlington-based public interest lawyer, told Leopold:

"If I could trust the FBI only to blackball things that were clearly non-responsive, I don't need to know that they found completely unrelated records," he added. "However, that's not what the FBI does. I have seen it blackball records because they 'weren't FBI records,' even though they were in FBI files (they were FBI copies of other agencies' records, which any FOIA person worth his salt knows are still responsive to a FOIA request made to FBI). I've seen it blackball records because the request asked for 'internal FBI records' and the records in question were sent outside of the FBI, based on a strained interpretation of the word 'internal.'"

Given the FBI's tendency towards secrecy and obfuscation in the FOIA process, we shouldn't trust that the FBI is using the "blackball" process fairly. After all, the agency has admitted to lying to the public -- including to judges! -- about our requests for some time now. http://www.privacysos.org/node/435

[Magda Hassan]

Podcast here
Attorney Carl J. Mayer talks about the suit he filed against President Obama for journalist/activist Chris Hedges; Truthout investigative reporter Jason Leopold has proof that the FBI "blackballs" some FOIA requests. Mayer, who also represents PBC in a class action suit challenging the illegal domestic wiretapping, returns to talk about his new suit that calls the "Homeland Battlefield Act" embedded in the NDAA that Obama signed 12/31/11 unconstitutional. The plaintiff is Chris Hedges, former Mideast bureau chief for the New York Times; he has been a strong supporter of the Occupy movement and provides some of its intellectual affirmation. Mayer calls the NDAA "the most cynical act" of the Obama term, deploring Obama's signing statement and various efforts to confuse and mislead us about the true impact of the bill. Mayer details the potential for Hedges, who has been in contact with groups tagged as terrorists, to be held indefinitely without charge in military custody, renditioned to another country, or sent to Guantanamo. This is a very important case, and Mayer may seek an injunction to prevent the new law from taking effect in March.

At 41:19, Leopold joins us to describe how he learned of the FBI's secret "blackballing" policieshe filed a FOIA request for FBI documents on the Occupy movement, and was contacted by history professor Trevor Griffey, who had been sent an FBI powerpoint file that details the secret policywhich appears to violate the FOIA law.
http://peterbcollins.com/2012/01/20/atto...-requests/

[Peter Lemkin]

Podcast here
Attorney Carl J. Mayer talks about the suit he filed against President Obama for journalist/activist Chris Hedges; Truthout investigative reporter Jason Leopold has proof that the FBI "blackballs" some FOIA requests. Mayer, who also represents PBC in a class action suit challenging the illegal domestic wiretapping, returns to talk about his new suit that calls the "Homeland Battlefield Act" embedded in the NDAA that Obama signed 12/31/11 unconstitutional. The plaintiff is Chris Hedges, former Mideast bureau chief for the New York Times; he has been a strong supporter of the Occupy movement and provides some of its intellectual affirmation. Mayer calls the NDAA "the most cynical act" of the Obama term, deploring Obama's signing statement and various efforts to confuse and mislead us about the true impact of the bill. Mayer details the potential for Hedges, who has been in contact with groups tagged as terrorists, to be held indefinitely without charge in military custody, renditioned to another country, or sent to Guantanamo. This is a very important case, and Mayer may seek an injunction to prevent the new law from taking effect in March.

At 41:19, Leopold joins us to describe how he learned of the FBI's secret "blackballing" policieshe filed a FOIA request for FBI documents on the Occupy movement, and was contacted by history professor Trevor Griffey, who had been sent an FBI powerpoint file that details the secret policywhich appears to violate the FOIA law.
http://peterbcollins.com/2012/01/20/atto...-requests/

This is SO VERY IMPORTANT a case! We must follow it and build support for it. Thanks for posting that, Magda! I'm reposting it on the Occupy website now...!

NB I can't yet find the original article in Truthout....can anyone?!

[Magda Hassan]

This is SO VERY IMPORTANT a case! We must follow it and build support for it. Thanks for posting that, Magda! I'm reposting it on the Occupy website now...!

NB I can't yet find the original article in Truthout....can anyone?!

You're welcome! The Truth Out article is in the box on the first post.

[Bill Kelly]

This is SO VERY IMPORTANT a case! We must follow it and build support for it. Thanks for posting that, Magda! I'm reposting it on the Occupy website now...!

NB I can't yet find the original article in Truthout....can anyone?!

You're welcome! The Truth Out article is in the box on the first post.

Thanks Peter and Maggie for the heads up on this. I think its great that they give the policy such a fitting name and acknowledge it. Has anyone filed an FOIA for the powerpoint?

Let me know if there's any followup on this.

BK
JFKcountercoup

[Peter Lemkin]

This is SO VERY IMPORTANT a case! We must follow it and build support for it. Thanks for posting that, Magda! I'm reposting it on the Occupy website now...!

NB I can't yet find the original article in Truthout....can anyone?!

You're welcome! The Truth Out article is in the box on the first post.

Thanks Peter and Maggie for the heads up on this. I think its great that they give the policy such a fitting name and acknowledge it. Has anyone filed an FOIA for the powerpoint?

Let me know if there's any followup on this.

BK
JFKcountercoup

Yes, the name really tells all - sort of like J. Edgar [Mary]'s pink high-heeled shoes! As I noted elsewhere, I believe the CIA and all the other [many] intel agencies and other agencies of the USA are likely doing the same thing. In my own case, I have had FOIA requests denied as 'no documents matching request', when I actually had them in my hands by other means or requests - or otherwise KNEW for a FACT they had to exist. They are not in the 'business' of giving out information; but of denying it, changing it, censoring it and making sure the Truth NOT be told. We need to be vigilant and fight this - or loose our democracy [really, already lost...but by some slight of hand and enormous effort, salvageable!]

[Magda Hassan]

Freedom from information