Wednesday, April 23, 2014
 

Requester's Voice: Ryan Shapiro on how to street fight with the FBI over FOIA and win

"The Bureau is simply not operating in good faith"

In this week’s Requester’s Voice, MuckRock benefits from the experience of Ryan Shapiro, whose track record qualifies him as a FOIA super hero. A PhD candidate at MIT, Shapiro has developed a set of surgical FOIA tactics that have the FBI scrambling to block his requests. Shapiro's ongoing "street fight" with the FBI has him convinced more than ever that our democracy depends on the health of the Freedom of Information Act.

MuckRock: What was your first FOIA request? How did it go? Why did you want/need to use public records in the first place?

Ryan Shapiro: I filed my first FOIA request to the FBI in 2005 when I was working on my master’s degree in modern American history. The request was for any records on a now deceased scientist who had been a prominent researcher and Cold Warrior in the 1940s and 50s, although he had earlier been a committed leftist. This scientist was also a leading professional proponent of animal research who routinely accused opponents of animal experimentation of being threats to American security and possibly even agents of the Kremlin itself. I wanted to know what, if anything, the FBI made of this scientist’s shifting politics in general, and of his (totally unfounded) allegations of subversion against animal protectionists in particular.

Though I knew almost nothing about FOIA at the time, this request was partially successful. In about a year, the FBI released to me roughly 150 pages. And though this was certainly not all the records the FBI had on this scientist, the release was useful nonetheless. It turns out the FBI completely ignored this scientist’s red-baiting of anti-vivisectionists, and instead continued to view the scientist himself as a potential threat to national security on the basis of his 1930’s leftism.

I first experienced significant FOIA-related problems with the FBI several years later when I began submitting requests for records about more recent history. I think my earliest request along these lines was in 2008 when I requested my own file.

The FBI responded they couldn’t find anything. I still knew relatively little about the intricacies of FOIA work. However, given my own background with aggressive activism beginning in the mid-1990s, I knew the FBI’s claim to find nothing was implausible. But I didn’t know what to do about it. As I developed my FOIA skills in the course of my PhD research, I submitted additional requests for my files. When the FBI again failed to respond adequately, I sued them about this and roughly 70 of my other FOIA requests. I now have a portion my own FBI file. However, the FBI is currently arguing in court that to release the remaining pages about me now would damage national security. This matter remains in litigation as one element of my ongoing Open America fight (discussed below).

MuckRock: Where did you learn how to become a successful document requester?

Ryan Shapiro: Reading other people’s FOIA requests was an important step, particularly at first. Reading as much FOIA case law as possible has also been key. Reading the records of FOIA lawsuits has been essential. Along these lines, agency declarations submitted in FOIA lawsuits are especially illuminative sources of information about a given agency’s internal FOIA practices. And endless conversations with expert FOIA attorneys have also been invaluable to my development. I’m especially fortunate to have the counsel of my amazing FOIA lawyer, Jeffrey Light.

In addition to the above, what has been most useful has simply been to file lots and lots of FOIA requests. In general, I design each request not only to hopefully produce the requested records, but also to further illuminate the agency’s FOIA operations. In my experience, successful FOIA work is often the product of tacit knowledge. Though it of course should not need to be this way, developing as intimate a familiarity as possible with an agency’s internal filing systems, databases, and FOIA practices is frequently the key to success.

MuckRock: How many requests do you file? Daily? Monthly? Yearly? Whatever metric makes sense.

Ryan Shapiro: I currently have about 600 FOIA requests in motion with the FBI, as well as a smaller number in motion with other agencies. How many requests I submit at any given time largely depends on the type of research I’m doing at that moment. Sometimes months will pass in which I submit no requests, and sometimes I’ll submit 50+ in a week.

MuckRock: Do you have any advice for MuckRock users? Tips or tricks you've come across over the years.

Ryan Shapiro: The first thing to know about dealing with the FBI for FOIA work is that the Bureau is simply not operating in good faith. While FOIA with some agencies can be akin to a protracted business meeting or an attempt to get telephone customer support from a faceless corporation, FOIA with the FBI is a street fight.

The FBI does nearly everything within its power to avoid compliance with the Freedom of Information Act. This results in the outrageous state of affairs in which the leading federal law enforcement agency in the country is in routine and often flagrant violation of federal law.

One of the chief means by which the FBI accomplishes this is to deliberately search for records in such a way that the search routinely fails by design. There are numerous techniques a requestor can use to combat this, but two of the most crucial are: 1) Request a search not only for main file records (this is the FBI’s default search) but also for “cross-reference” records, and 2) Request an “ELSUR” (Electronic Surveillance) search. Despite the FBI’s (flatly dishonest) insistence to the contrary, a huge percentage of records will only be found if the FBI conducts these two additional searches, and the FBI will not conduct these searches unless you explicitly request it does so.

That said, the FBI frequently won’t conduct these searches even if you do request them. At that point, you can appeal the FBI’s inadequate search to the Department of Justice Office of Information Policy (OIP). However, this is frequently a slow and ultimately disappointing experience, as OIP often operates as little more than a rubber stamp for the FBI.

Sadly, the most effective means to compel the FBI to conduct an adequate search is to sue. It’s really the only way to hold the FBI accountable to the requirements of the Freedom of Information Act. I currently have five FOIA lawsuits against the FBI covering roughly 200 of my 600 requests.

MuckRock: Where does FOIA shine as a tool and where does it fall short?

Ryan Shapiro: FOIA is terrific in theory and largely toothless in practice. As a result, it shines primarily when dealing with agencies that view it with neutrality, or at least not antagonism. Unfortunately, the FBI and other intelligence agencies have long been flatly allergic to the Freedom of Information Act.

As an historian of the policing of dissent and the political functioning of national security, this is definitely a problem. Part of the issue is that FOIA itself is to some extent a misnomer. We don’t really have a freedom of information act in the country as much as we have an open records act. One can’t request information (in the form of a question), one needs to request records. This requires some advance knowledge of what those records are or might be. Especially when dealing with intelligence agencies that conceal the existence of the overwhelming majority of their records, this is frequently a prohibitive hurdle. And this is the challenge I was facing early in my PhD research.

My doctoral work at MIT builds upon my master’s degree research. My dissertation in progress and broader project in part explore the use of the rhetoric and apparatus of national security to marginalize animal protectionists as threats to the state from the late nineteenth-century to the present. As is standard with historians, much of my research is archival. As is sadly far from standard, much of my work is also FOIA-based. I’m fortunate that my program, MIT’s Program in History, Anthropology, & Science, Technology, and Society (HASTS), is very supportive of this approach.

One thread of my research that is heavily FOIA-dependent is my effort to map out the nature and evolution of the FBI’s understanding and handling of the animal rights movement. How did the animal rights movement first come to the attention of the FBI? How did the FBI’s understanding of the animal rights movement evolve over time? How does the FBI understand the animal rights movement as component parts and as a whole? How does the FBI develop infiltrators within the movement? What role did and does industry play in the evolution of the FBI’s understanding of the movement? And perhaps most importantly, beginning in 2004, how did the FBI come to designate the animal rights and environmental movements as the leading domestic terror threats in the U.S. without either movement physically injuring a single person in this country ever?

To answer these questions, I needed a lot of documents. Very few of these documents were publicly available in archives or elsewhere, so FOIA was the only real possibility for obtaining them.

However, I didn’t know what the overwhelming majority of these documents were. Worse, even when I had a fairly clear sense of what the broad subject of some these documents might be, the FBI consistently claimed it could find no records in response to my requests. So I began learning as much as I could about the FBI’s FOIA processes and experimenting with different kinds of requests.

One of the key elements of my eventual approach was to obtain signed consent forms from roughly 250 leading animal rights activists from the 1970s to the present allowing me to request their files. When successful, each one of these requests opened a tiny window into both the subject of my research and the deliberately byzantine filing systems of the FBI. I then combed through these releases for references to any additional specific documents or topics about which I could submit new requests, and then did the same again when I received records from those new requests. I would also compare the released records — and my requests that produced them — against my requests to which the FBI responded it couldn’t locate records.

In the process, I’ve come increasingly close to developing a set of methodologies that make FOIA function with the FBI in a way it has generally failed to do so to date: as a tool for broad-scale historical research. I’m especially honored to have been invited to lecture on these techniques at a host of interested institutions, including the annual convention of the National Lawyers Guild, the National Press Club, and a series of universities and law schools.

MuckRock: What is your favorite FOIA story?

Ryan Shapiro: Using the above approach, I’ve obtained roughly 40,000 pages so far from the FBI, and I have about 600 FOIA requests currently in motion with the Bureau. Most typically, however, the FBI has done with my requests what it so frequently does with FOIA requests. It simply sits on them. Though FOIA allows an agency only 20 working days to comply with a request, years would often pass with no apparent movement.

So I sued the FBI for failure to comply with the Freedom of Information Act. This lawsuit covers roughly 70 of my requests. In response, the FBI has invoked the “nuclear option” for a FOIA case. They’ve asked the judge for an Open America stay, which is basically a blanket exemption for an agency from having to comply with FOIA for a specified period of time. In my case, the FBI has asked the judge for an almost unheard of 7-year Open America stay.

To this end, the FBI is relying upon a radical new interpretation of a Cold War era FOIA doctrine called "mosaic theory." In so doing, the FBI is arguing that compliance with my dissertation FOIA research would “significantly and irreparably damage national security.” Keep in mind, the FBI isn’t arguing that giving me the documents I’ve requested would damage national security, although they clearly believe this to be the case. Rather, the FBI is asserting in court that simply deciding whether or not to give me the requested documents would irreparably damage national security.

More so, we can’t even read most of the FBI’s argument to support this contention, because the FBI submitted it in the form of an ex parte, in camera declaration. This is essentially a secret letter to the judge from the Deputy Assistant Director of the FBI’s Counterterrorism Division. And — as journalist Will Potter recently wrote in an excellent article on my case for Mother Jones — the FBI asserts that allowing us to read this secret letter would “damage the very national security law enforcement interests it is seeking to protect."

As I told Will, this is an especially circular and Kafkaesque line of argument. The FBI considers it a national security threat to make public its reasoning for considering it a national security threat to use federal law to request information about the FBI's deeply problematic understanding of national security threats.

However, from the portions of its argument the FBI has submitted publicly, one thing is clear. The FBI’s efforts to exempt itself from the Freedom of Information Act in my case are so extreme and sweeping that, if the judge rules in the FBI’s favor, it could have a devastating impact on other FOIA requestors’ ability to obtain records from the FBI and government agencies in general. It’s for this reason that a host of civil liberties and open government organizations, including the Center for Constitutional Rights, the National Lawyers Guild, National Security Counselors, and the National Security Archive (along with TruthOut and Mark Zaid) have filed an amicus brief opposing the FBI’s radical efforts to shut down my research.

And I think this actually gets close to the heart of the matter.

It appears the FBI’s core motivation here has relatively little to do with the purported security threat posed by possible release of information about the animal rights movement. Instead, I believe the FBI is responding in large part to the increasing efficacy of my FOIA methodologies. Since its earliest days, the FBI has viewed political dissent as a security threat. And since the passage of the Freedom of Information Act, the FBI has viewed efforts to force Bureau compliance with the law in the same light. Over the years, the FBI has established countless means by which to avoid compliance with FOIA. Over the past five years or so, I’ve found ways around many of them. I believe the FBI’s unprecedented efforts to shut down my research are primarily a last ditch effort to preserve the Bureau’s functional immunity from the Freedom of Information Act.

I should note, I’m not sure the above necessarily qualifies as my “favorite” FOIA story, even if it is among the most dramatic. I think my favorite FOIA request is actually one I just submitted.

I recently had the good fortune to be having lunch with Daniel Ellsberg, the former top-level military intelligence analyst who in 1971 leaked the classified DOD report known as the “Pentagon Papers.” The leak of the Pentagon Papers unequivocally established that the DOD and a succession of presidents from Truman to Johnson had for decades willfully deceived the American public about U.S. military involvement in Vietnam. Ellsberg was deemed “the most dangerous man in America” by Henry Kissinger and was prosecuted by the Nixon administration under the Espionage Act (the same act under which Chelsea Manning was recently convicted and under which Edward Snowden is currently facing prosecution). Daniel Ellsberg is an American hero in the truest sense, and a longtime personal hero of mine. To my tremendous pleasure, at the end of our lunch, Ellsberg generously granted me signed permission to request his FBI file. I can’t wait to see how that turns out.

MuckRock: How do you think your work at MIT and the attention you're getting from the federal government is affecting the FOIA landscape?

Ryan Shapiro: I’m not really sure how to answer this. What I can answer is how I’d like my work to affect the FOIA landscape. I’ll be very pleased if my work brings greater attention to the necessity of a robust Freedom of Information Act in particular, and to the pernicious effects of our government’s longstanding obsession with secrecy in general. I’m definitely interested in highlighting the absolute necessity of governmental transparency, especially in the face of the ever-growing menace posed by state surveillance and policing of dissent. Outside of a relatively small band of historians, journalists, attorneys, and activists, these topics simply have for decades not been part of any serious national conversation until recently.

Thanks largely to the documents provided and disseminated by Edward Snowden, Chelsea Manning, Glenn Greenwald, Jeremy Hammond, WikiLeaks, and others, such a conversation is finally getting underway. I would like my work, and the FBI’s outrageous responses to it, to contribute to and amplify this conversation.

MuckRock: Does the pushback ever get tiresome or wear on your drive to continue?

Ryan Shapiro: Ha. Not really. If anything, just the opposite. On this front I find myself in agreement with Robert, one of the young “Wolverines” in Red Dawn (the 1984 classic, not the appalling 2012 remake). When chastised, “All that hate’s gonna burn you up, kid,” he responds only, “It keeps me warm.”

Seriously though, it’s not the pushback that upsets me. It’s what I frequently uncover when I do obtain documents.

For example, one 2003 document I obtained via a FOIA request reveals FBI advocacy of bringing federal terrorism charges against undercover investigators of factory farms (You can read about that document on GreenIstheNewRed.com here and at the Los Angeles Times here).

We’re talking about people who videotaped animals intensively confined in cages so small they can’t stand up, can’t spread their limbs and can’t turn around. This horrific existence is standard for many of the nine billion animals raised and killed every year on factory farms in the United States alone. And the FBI’s response to exposure of what goes on behind the closed doors of factory farms is to consider prosecution of the whistleblowers, and to do so under federal terrorism charges.

This is the sort of thing that makes me mad, and reading my own name on that document didn’t help. That said, this is also the sort of thing that makes me all the more committed to my work.

MuckRock: What has to take place for meaningful policy level changes to FOIA laws? Will we ever see that day?

Ryan Shapiro: The first thing that needs to happen is for more people to use FOIA and become invested in it. It’s for this reason (and many others) that MuckRock is such an invaluable resource and addition to the open government landscape. We also need more historians and journalists in particular to regularly utilize FOIA and promote the fruits of FOIA work.

I’ve already mentioned Will Potter’s great work above, and I encourage everyone to check out his news site Green Is The New Red and his award-winning book of the same name. I’m also very fortunate to collaborate with the intrepid journalist and fellow FOIA-prosthelytizer, Jason Leopold, but he’s a rarity.

Democracy cannot meaningfully exist without an informed citizenry, and such a citizenry is impossible without broad public access to information about the operations of government. The Bush administration initiated a disastrous welter of anti-transparency initiatives, yet the Obama administration has been, if anything, even worse. Despite entering office promising unprecedented openness, the Obama administration has provided just the opposite, including bringing more Espionage Act prosecutions of leakers than all previous administrations combined. It’s not surprising those in power wish to keep their actions secret. What’s surprising is how readily we tolerate it.

The Freedom of Information Act is one of the most underappreciated elements of the entire American experiment. As broken as FOIA is, the notion that the records of government are the property of the people, and all we need to do to get them is to ask, is radically democratic. FOIA must not only be defended against the FBI and others who view transparency as a threat, but strengthened, and dramatically expanded. The viability of our democracy depends upon it.

Photo by Stephanie Crumley.

Follow Ryan Shapiro on Twitter @_rshapiro.

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