Expedited review denied for FBI terrorist 'profiling' records

• The Northern California chapter of the American Civil Liberties Union did not show a compelling need for the FBI to hasten its response to an open records request for documents relating to alleged racial and religious profiling in terrorism investigations, a federal court ruled.

March 30, 2005 — The FBI does not have to expedite processing of an open records request for documents relating to the agency’s questioning of Muslims and Arab-Americans in California because the requester – an American Civil Liberties Union chapter – did not prove that it had a “compelling need” and was therefore not entitled to expedited review under the Freedom of Information Act, a federal court in San Francisco ruled March 11.

The ACLU of Northern California submitted an FOI Act request in August for the records and asked the agency to speed review of the request.

Agencies normally respond to FOI requests on a first-in, first-out basis, but requesters can petition for speedy review. If they show a “compelling need” for information and are “primarily engaged in disseminating information,” the agency must grant the accelerated review. The Justice Department also grant expedited review if there is widespread, exceptional media interest in an issue involving government integrity.

The FBI refused the ACLU’s petition for expedited review, saying there was “no particular urgency” that would be met by accelerated processing.

The ACLU sued, saying that it was entitled to quick review under a Justice Department provision concerning “exceptional media interest” in the requested subject.

U.S. District Judge Phyllis J. Hamilton ruled that eight articles submitted to the court about the FBI’s terrorism-related monitoring and surveillance practices were insufficient to prove the existence of exceptional media interest in the subject. Although the articles dealt generally with terrorism-related monitoring and surveillance, they did not specifically deal with the FBI’s alleged California sweeps, she wrote.

Hamilton also rejected ACLU’s arguments that there is a compelling need to inform the public about the alleged FBI practices and that the organization is primarily engaged in disseminating information. Although its newsletter boasts a circulation of 40,000, the ACLU chapter cannot invoke the claim because it is not “primarily engaged in disseminating information,” she wrote, adding that “while dissemination of information may be a main activity of” the ACLU chapter, “there is no showing that it is the main activity.”

The ACLU asked for expedited review hoping to avoid routine delays at the FBI.. In 2004, the FBI’s median processing time for non-expedited requests that produced more than 500 pages was between just more than a year to one year and nine months, according to the Justice Department’s Web site.

(ACLU of Northern California v. Justice Dep’t; ACLU Counsel: Amitai Schwartz; San Francisco, Calif.) — RL

© 2005 The Reporters Committee for Freedom of the Press

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