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Court rejects FBI's 8 to 15 year FOI delay

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  1. Freedom of Information
NINTH CIRCUIT--In the Freedom of Information Act, Congress wrote "a tough statute on agency delay," the U.S. Court of Appeals…

NINTH CIRCUIT–In the Freedom of Information Act, Congress wrote “a tough statute on agency delay,” the U.S. Court of Appeals in San Francisco wrote in early August, rejecting the FBI’s plan to continue waiting until 2001 to provide freelance writer Dan Fidducia of San Jose and Edward Kohn, an editor at the St. Louis Post Dispatch, records in response to the FOI requests they began filing in 1986.

The journalists, who have a longstanding interest in newsroom searches, had filed requests beginning in 1986 for records of government searches of journalists and others, such as suspects’ lawyers and doctors who were not themselves suspected of any wrongdoing.

Even though it ruled that the government must comply with the time limits of the FOI Act, the appeals court upheld specific denials of information the government made in response to the requests.

It allowed the government to invoke privacy exemptions to the FOI Act even though, in one case, the government had held a news conference to announce its search of one individual’s office, and in another, the subject of the search had held her own news conference to decry a government search of her office. These individuals might now feel some intrusion from revelation of these events that occurred several years ago, the court said.

In refusing to support the government’s continued delay of processing the requests, the court said Congress gave agencies “20 days not 20 years” to make FOI Act decisions. It said the timeframe of the act “doubtless poses practical difficulties,” but so long as the FOI Act is law, the court cannot repeal it. If agencies do not believe that they can conform to the law’s time constraints, they must persuade Congress to change the law or appropriate more money for its enforcement.

The appeals panel reversed a May 1997 ruling of the federal District Court in San Jose that affidavits from FBI agents showed that the agency had delayed response, as allowed by the FOI Act, because it was experiencing “exceptional circumstances” and was exercising “due diligence” in trying to process its backlog of cases. An 8 to 15 year delay simply tells a requester he cannot have records, the appeals panel said in remanding the case to the District Court.

Kohn and Fidducia were student journalists in the 1970s at the Stanford Daily when it was searched by the Santa Clara Sheriff’s Department and some members of the Palo Alto Police Department. The newspaper sued, and ultimately the U.S. Supreme Court ruled in 1978 in Zurcher v. Stanford Daily that the search did not violate the First Amendment. In response to that decision, Congress in 1980 passed the Privacy Protection Act to limit the ability of state and federal authorities to conduct searches of journalists.

The two filed FOI requests concerning specific searches conducted even after passage of the Privacy Protection Act. (Fidducia v. Department of Justice; Media Counsel: Lawrence Teeter, Los Angeles)