A federal judge has sanctioned the FBI for lying to the court in a FOIA lawsuit. The agency had claimed that they didn’t have any more documents that were germane to the request, but then they were forced to turn over more documents to the judge in camera. And the judge didn’t take very kindly to that.
An order from the U.S. District Court for the Central District of California has revealed the FBI lied to the court about the existence of records requested under the Freedom of Information Act (FOIA), taking the position that FOIA allows it to withhold information from the court whenever it thinks this is in the interest of national security. Using the strongest possible language, the court disagreed: “The Government cannot, under any circumstance, affirmatively mislead the Court.” Islamic Shura Council of S. Cal. v. FBI (“Shura Council I”), No. 07-1088, 3 (C.D. Cal. April 27, 2011) (emphasis added)…
After court ordered the FBI to submit full versions of the records in camera, along with a new declaration about the agency’s search, the FBI revealed for the first time that it had materially and fundamentally mislead the court in its earlier filings. The unaltered versions of the documents showed that the information the agency had withheld as “outside the scope” was actually well within the scope of the plaintiffs’ FOIA request. The government also admitted it had a large number of additional responsive documents that it hadn’t told the plaintiffs or the court about. Id. at 7-8.
If these revelations weren’t bad enough, the FBI also argued FOIA allows it to mislead the court where it believes revealing information would “compromise national security.” Id. at 9. The FBI also argued, that “its initial representations to the Court were not technically false” because although the information might have been “factually” responsive to the plaintiffs’ FOIA request, it was “legally nonresponsive.” Id. at 9, n. 4 (emphasis added).
The court noted, this “argument is indefensible,” id. at 9-10, and held, “the FOIA does not permit the government to withhold responsive information from the court.” (Id.)(upheld on appeal in Islamic Shura Council of S. Cal. v. FBI, __ F.3d __, No. 09-56035, at 4280-81 (9th Cir. Mar. 30, 2011) (“Shura Council II”).1 The court stated:
The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.
In a later opinion, the district court sanctioned the government for lying. In issuing monetary sanctions against the DOJ, the court held, “the Government’s deception of the Court was without any factual or legal basis and simply wrong.” (p. 19). The court noted issuing sanctions was necessary to “deter the Government from deceiving the Court again.” (p. 2). Unfortunately, it’s not clear this practice will end any time soon. The DOJ has been attempting to change its FOIA regulations to codify the procedures it used in this case. As the court noted, even though the proposed changes were withdrawn, “the deceptive policy and practice of the DOJ with respect to asserting and applying exclusions under FOIA apparently remains intact.”
The problem is that none of this actually does anything to deter the same behavior in the future. Why would the DOJ care that it has to pay out some taxpayer money? Throw the FBI director or Eric Holder in jail for a while and they’ll get the message.
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