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Court overturns denial of author's FBI surveillance records

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Court overturns denial of author's FBI surveillance records 01/11/99 D.C. CIRCUIT--Seven years after author James Campbell's biography of the late…

Court overturns denial of author’s FBI surveillance records

01/11/99

D.C. CIRCUIT–Seven years after author James Campbell’s biography of the late novelist and civil rights leader James Baldwin was published, a federal appeals court has reversed a lower court ruling denying him FBI records on Baldwin.

In late December the U.S. Court of Appeals (D.C. Circuit) told the FBI it must enlarge its search to encompass records on Baldwin it knows are likely to exist in other files.

The court noted that Campbell sought records of an “awkward” period at the FBI in writing his book “Talking at the Gates: A Life of James Baldwin.” Several thousand pages of heavily redacted information showed how the agency monitored Baldwin in the 1960s and that should have alerted the agency to the probable existence of records on Baldwin in other files, the court said.

In its unanimous decision it also ordered the agency to justify its use of the national security exemption and law enforcement exemptions protecting privacy and confidential sources in sufficient detail to allow the court to review the denials. And finally, the court ordered the agency to recalculate its fee levy against Campbell and to waive fees in line with Freedom of Information Act standards.

In 1988 Campbell filed a FOI Act request for the agency’s records on Baldwin and received a limited number of documents. Campbell sued the agency for the remaining records in 1989. He claimed that in its search of its Central Records System the agency learned it had conducted an electronic surveillance of Baldwin, and that it should have reviewed its “ELSUR” files for records of the surveillance. It should also have looked at tickler files held by FBI supervisors which might not have been included in the Central Records System, he said.

The court rejected the FBI’s claim that it did not have to enlarge its search for records on Baldwin, that a search of his files in the Central Records System was reasonable and that other FOI Act cases had established that an agency need only conduct a “reasonable” search, not a search of all its records, in response to an FOI request.

The court said that an agency need not search every record, but it cannot limit its search to one record system if there are others that are likely to turn up requested information.

The appeals panel rejected the affidavits provided by the government as to the need for classifying the records for national security reasons and affidavits that disclosure of some law enforcement records would intrude upon privacy or reveal confidential sources. The panel said the government’s boilerplate affidavits did not adequately describe why the particular records requested should be withheld. (Campbell v. DOJ; Attorney: James Lesar, Washington, D.C.)