In some ways, Gavin MacFadyen is the investigative journalist we all strive to be. For decades, he covered topics ranging from the Nicaraguan revolution and Iran-Contra, neo-Nazi violence, Watergate, the history of CIA, arms trafficking, and organized crime. MacFadyen went on to organize events at which whistleblowers and former intelligence personnel spoke publicly, and the early days of WikiLeaks he acted as an advocate for Julian Assange and Chelsea Manning, eventually becoming a director of WikiLeaks himself. With his history, I had no doubt that the FBI would have kept a file on him, so when he died in October 2016, I requested his file.
The FBI finally responded in a letter dated January 27, but not received until yesterday (February 8). The letter contained several rejections, some of which appear legitimate while at least one isn’t allowed by statute and case law.
The first rejection is the most straightforward - the FBI believes some files may have relevant records, but they transferred those files to the National Archives and claim to not have any copies left. A follow-up FOIA for these records, and anything NARA can find on MacFadyen, has been filed.
The next rejection will be more difficult to get around, but the rejection is arguably still made in good faith. The Bureau claims that they found four pages on Gavin MacFadyen, all of which need to be withheld. According to the exemptions cited, the information is:
- Protected pursuant to an Executive Order
- Protected by statute or other non-disclosure provision
- Protected due to personal privacy (remember, the subject of the files is dead)
- The subject of an ongoing law-enforcement investigation and that A) The release would interfere with “ongoing law enforcement proceedings” B) Would qualify as an unwarranted invasion of personal privacy and C) Could be “reasonably expected to disclose the identity of a confidential source”
Since the full text of (b)(7)(D) provides several examples of what may count as a confidential source, readers are encouraged to read the full text below.
The final rejection is simply not allowed by statute and case law. The FBI asserts that additional records were located in an investigative file, and are therefore being withheld. This very thing is forbidden by the law, which requires agencies to segregate all such material. While the FBI might be able to withhold the relevant pages from that file on the basis of (b)(7), they have to review the relevant pages first - file level exemptions aren’t supported by the text of the statute or the relevant case law.
An initial appeal has been filed on the integrity of the search, and a separate one will be filed against the FBI’s decision to withhold responsive records - but only after consulting with interested parties, including other transparency advocates.
Read the full rejection is embedded below, or on the request page.
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