Court bars Muslim group access to FBI operating guidelines

A U.S. District Court judge in Washington, D.C., ruled that the Department of Justice does not have to release FBI investigative guidelines, even though it previously allowed a Muslim civil rights group to view the documents for a limited time.

Judge Emmet G. Sullivan ruled the Muslim Advocates' limited access to documents at FBI headquarters did not make them "permanent public record," which is necessary before an exemption under the federal Freedom of Information Act can be waived.

Muslim Advocates, a California-based group that seeks equality for Muslims, sued the DOJ for access to three chapters in the FBI's Domestic Investigations and Operations Guide, which was enacted in 2008 to "standardize policy so that criminal, national security and foreign intelligence investigative activities are accomplished in a consistent manner."

In an effort to ensure that certain groups were not unfairly targeted in the guidelines, Muslim Advocates and other civil rights organizations were granted permission to take notes while viewing chapters 4, 5, 10 and 16 of the guide on two separate occasions at FBI headquarters in 2008. In each instance, the organizations were allotted two hours to view the materials.

In the suit, Muslim Advocates argued that by allowing it and other groups to see the documents the DOJ waived its right to an exemption for those documents under FOIA.

But Sullivan cited a 2001 U.S. Court of Appeals (D.C. Cir.) decision in Students Against Genocide v. Department of State, which established that "for the public domain doctrine to apply, the specific information sought must have already been 'disclosed and preserved in a permanent public record.'"

On this issue the court said that no waiver occurred.

The finding was based upon the fact that the documents were never "truly public" because they never left FBI headquarters.

Sullivan also wrote that even with "ample means" to take notes, it was doubtful that the plaintiff could have copied the entirety of approximately 100 pages of information in two hours.

He used the plaintiff's own letter to FBI Director Robert Mueller as evidence of the finding. In a November 2008 letter, Muslim Advocates claimed they were unable to conduct a "meaningful review" of the 100 pages because they were not "afforded sufficient time for a rigorous examination."

Sullivan then ruled that the FOIA exemption claimed by the DOJ was legitimate for portions of chapters 5 and 10, citing the possible negative impact on law enforcement by revealing techniques and procedures used in investigations and prosecutions.

However, Sullivan said the court was "not so convinced" that the DOJ's near-total redaction of Chapter 16 was necessary. He ordered the agency to provide further explanation to allow the court to "undertake a meaningful assessment of the redacted material."

"The court got it right when it ordered the FBI to provide specific details to support its wholesale redaction of Chapter 16, which governs the use of undercover FBI agents and informants in mosques, churches, synagogues, and other religious and political gatherings," said Farhana Khera, the Muslim Advocates executive director, in a statement.

"Given the continued revelations of law enforcement infiltration of mosques, student groups and businesses, without evidence of criminal activity," she said. "We remain hopeful that the court will find that the FBI has over-reached and order that this chapter be released in its entirety."