In a ruling last week, a federal judge said the “facts suggest” that the FBI failed to follow Justice Department guidelines meant to protect journalists from unlawful searches and seizures when federal agents questioned Bryan Carmody during a police raid of the freelance journalist’s home in 2019.
The conclusion from Senior Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia was included in a 24-page opinion issued on Nov. 8 in response to a Freedom of Information Act lawsuit brought by the Reporters Committee as part of an effort to obtain information about the federal government’s involvement in the search of Carmody’s home.
Judge Hogan held that the FBI, the DOJ’s Criminal Division and the Executive Office for U.S. Attorneys failed to adequately search for records requested by the Reporters Committee. Judge Hogan also ordered the government to disclose the name of one of the FBI agents who participated in the Carmody raid, though he allowed the government to shield the name of another agent involved, citing privacy concerns.
But the judge’s conclusion that the FBI failed to abide by the news media guidelines is particularly noteworthy, especially now that the Justice Department has announced a new policy barring the seizure of journalists’ records. The move by Attorney General Merrick Garland, championed by the Reporters Committee and other press freedom advocates, came in the wake of several recent disclosures that the DOJ under the Trump administration authorized the seizure of reporters’ phone and email records as part of leak investigations.
As Reporters Committee attorneys explained in a 2019 special analysis, the Carmody raid raised serious questions about the FBI’s adherence to the news media guidelines, which have served for years as a crucial protection for journalists and their confidential sources. Those rules require attorney general approval before agents can question a journalist. In his opinion, however, Judge Hogan said it appears the FBI did not abide by the rules.
“[T]he specter of government misconduct looms over the entire Carmody matter,” the judge wrote.
A court ultimately quashed all of the search warrants that led to the searches of Carmody’s home, finding that they violated California’s shield law, and Carmody later reached a $369,000 settlement with the City of San Francisco. But the Reporters Committee has continued to pursue information about the raid, especially the FBI’s involvement.
Shortly after news of the raid broke, Reporters Committee attorneys filed public records requests at both the federal and state level, ultimately leading to the release of some newsworthy records. For example, a San Francisco Police Department memo obtained by the Reporters Committee through a California Public Records Act request showed that officers who conducted the raid on Carmody’s home were instructed not to use their body-worn cameras.
The Reporters Committee filed its FOIA lawsuit against the Justice Department, FBI and the Executive Office for U.S. Attorneys in September 2019. Through that litigation, the Reporters Committee obtained an FBI document revealing that Carmody told the agents who questioned him during the raid that he was a journalist.
The FBI document did not address whether federal agents followed the Justice Department’s rules for investigating the press. But it later became clear from the government’s legal filings in response to the lawsuit that they did not. Reporters Committee attorneys came to that conclusion based on a declaration submitted to the court by a senior Justice Department FOIA official. The official stated that all consultation and authorization requests made pursuant to the news media guidelines are tracked in a Justice Department database operated by the Policy and Statutory Enforcement Unit. In response to a Reporters Committee’s FOIA request, however, a search of the database using Bryan Carmody’s name “produced no hits.”
Judge Hogan agreed with the Reporters’ Committee’s conclusion.
“Here, the facts suggest that the News Media Policy was not followed,” the judge wrote. “Pursuant to the News Media Policy, before the FBI can question a journalist it must provide notice to the Director of the Office of Public Affairs and obtain ‘express authorization’ from the Attorney General. The record of approval would then be stored in the PSEU. Carmody, a journalist, was questioned by the FBI — an activity that should have required approval — but there is no record of any authorization in the PSEU.”
Therefore, he added, “a reasonable person could conclude that the alleged government impropriety occurred.”
Judge Hogan’s opinion repeatedly scolded the government for conducting inadequate searches for records requested by the Reporters Committee. He pointed out that the Reporters Committee was able to obtain records from the San Francisco police that the federal government failed to produce, including the name of one of the FBI agents involved in the raid.
While the judge agreed with the Reporters Committee that the name of that agent should be disclosed by the federal government, in part because it had already been made public, he held that the name of another FBI agent involved in the raid should remain secret. Judge Hogan concluded that the potential privacy interest in not revealing the agent’s name outweighed the public interest in knowing who was involved in the raid.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.
Photo by Wayne Hsieh