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Don Devereux is caught in a bona fide FOIA loop-de-loop.
From the Winter 2008 issue of The News Media & The Law, page 19.
The veteran investigative journalist working out of the Phoenix area has been using the Freedom of Information Act practically since its inception. He's seen his fair share of agency denials. He's won and lost many administrative appeals. But never before has he seen anything quite like this.
Since last July he has sent three identical requests to the FBI in an attempt to get records from the bureau's Los Angeles field office. Each time, Don Devereux has received an almost identical form letter response:
"To promptly respond to requests, we concentrate on identifying main files in the central records system at FBI Headquarters," the letter begins. "No records responsive to your FOIPA (Freedom of Information/Privacy Act) request were located by a search of the automated and manual indices."
Devereux said he had a hard time believing the first response, because he was fairly confident that records existed. So, after calling the FBI's FOIA office and per the bureau's suggestion, Devereux sent another request, this time specifying his desire to have the Los Angeles office conduct its own search.
Yet again, he received the same response.
After the last denial, Devereux was convinced the problem wasn't with his request, but with the FBI's FOIA policy.
"I don't think it's a sincere effort," Devereux said. "I think it's a subterfuge."
In a call on Devereux's behalf to the Los Angeles office, an employee answering FOIA questions told me that the field office automatically routes all FOIA requests to its headquarters in Washington, D.C. And unless and until the field office is specifically instructed by Washington to conduct its own search, the request ends with a search of headquarters' main files.
"They're basically gaming us with this main file thing as a way of getting rid of as many requests as possible," Devereux said.
Annual FBI FOIA figures appear to show that Devereux is not the only one being given the runaround by the nation's top law enforcement agency.
Since 2002, nearly 60 percent of all Freedom of Information Act requests processed by the FBI have resulted just like Devereux's with no records found.
And the numbers are on the rise. In 2006, an astounding 73 percent of the FBI information searches came back with zero records responsive to the requests. The FBI's supervising FOIA processor says this year's number should jump again.
"I look for it to be 80 percent for the 2007 report," FOIA processing chief Peggy Jackson said.
The numbers are even more striking when compared with other agencies within the Department of Justice that answer similar numbers of FOIA requests each year. The Executive Office for Immigration Review, like the FBI, processes around 10,000 such inquiries each year. Only 17 percent of their requests come back with no records. And although the Bureau of Prisons consistently responds to around 15,000 requests, less than 5 percent of those searches prove fruitless.
Jackson discounted the idea that the FBI's system of FOIA processing and main file searching could be to blame.
Although she granted that records retrieval will be simplified when all bureau files are relocated to the new facility planned for construction in Winchester, Va., Jackson pointed to two other sources as more likely causes for the high numbers of unsuccessful requests.
First, Jackson said the FBI is weeding through old files, destroying historically insignificant files and sending all others to the National Archives. She suggested a FOIA request to the Archives might help locate some records previously undiscovered.
Second, and the leading cause of such large numbers of requests resulting in "no records" found, according to Jackson, is the mistaken presumption that requesters are the subject of an FBI investigation.
"I just think that a lot of people think that the bureau has records that we do not have," Jackson said. "Your average citizen is not going to have an FBI investigative file."
Jackson said that the popularity of two Internet sites, Get My FBI File (http://www.getmyfbifile.com/) and Get Grandpa's FBI File (http://www.getgrandpasfbifile.com), have fanned the flames of public curiosity about FBI activities and has fueled the flood of unsuccessful FOIA requests to the agency.
But other high-profile agencies that could be expected to receive similar kinds of requests for nonexistent records don't have nearly the same proportionate number of unsuccessful records searches as the FBI. In 2006, FOIA requesters to the Drug Enforcement Agency only struck out on 17 percent of their requests. And FOIA requesters to the CIA fared even better, only leaving empty-handed at a rate of 14 percent.
Not everyone in the FBI's FOIA office agrees with Jackson's assessment that the Internet is largely to blame for the bureau's lack of records. Ruth Roppel, another FOIA processing supervisor, acknowledged that the FBI's policy of searching only main files and forcing requesters to submit multiple requests to various offices maybe the underlying cause of so many unsuccessful search requests.
"That's probably a lot of it," Roppel said.
Loren Cochran was the FOIA Service Center director at the Reporters Committee for Freedom of the Press. u