[Ppnews] The FBI's Secretive Practice of "Blackballing" Files

Political Prisoner News ppnews at freedomarchives.org
Wed Jan 18 20:11:15 EST 2012

Revealed: The FBI's Secretive Practice of "Blackballing" Files

Tuesday 17 January 2012
by: Jason Leopold, Truthout | Report

Have you ever filed a Freedom of Information Act (FOIA) request with 
the FBI and received a written response from the agency stating that 
it could not locate records responsive to your request?

If so, there's a chance the FBI may have found some documents, but 
for unknown reasons, the agency's FOIA analysts determined it was not 
responsive and "blackballed" the file, crucial information the FBI 
withholds from a requester when it issues a "no records" response.

The FBI's practice of "blackballing" files has never been publicly 
disclosed before. With the exception of one open government expert, a 
half-dozen others contacted by Truthout said they were unfamiliar 
with the process of "blackballing" and had never heard of the term.

<http://depts.washington.edu/civilr/griffey.htm>Trevor Griffey 
learned about "blackballing" last year when he filed a FOIA/Privacy 
Act request with the FBI to determine whether 
<https://en.wikipedia.org/wiki/Manning_Marable>Manning Marable, a 
Columbia University professor who founded the Institute for Research 
in African-American Studies, sought the FBI's files on Malcolm X 
under FOIA. At the time of his death last April, Marable had just 
finished writing 
biography on the late civil rights activist. Griffey filed the FOIA 
hoping he would receive records to assist him with research related 
to a long-term <http://depts.washington.edu/labhist/>civil rights 
project he has been working on.

In a letter the agency sent in response to his FOIA, the FBI told 
Griffey that it could not locate "main file records" on Marable 
responsive to his request. Last November, in 
to a FOIA request Truthout filed with the FBI for a wide-range of 
documents on the Occupy Wall Street, the agency also said it was 
unable to "identify main file records responsive to [our] FOIA," 
despite the fact that 
FBI documents related to the protest movement had already been posted 
on the Internet. The FBI has been 
<http://www.gwu.edu/~nsarchiv/news/20090313/index.htm>criticized in 
the past for responding to more than half of the FOIA requests the 
agency had received by claiming it could not locate responsive files.

Griffey, who also teaches US history at The Evergreen State College 
in Olympia, Washington, and is co-editor of the book, 
Power at Work: Community Control, Affirmative Action and the 
Construction Industry," was baffled. He found it difficult to believe 
that Marable would not have filed a FOIA for Malcolm X's FBI file. 
So, he sent an email to an FBI FOIA analyst asking for clarification.

The FBI FOIA analyst responded to Griffey in an email, asking him to 
supply additional "keywords" to assist in a search of the agency's 
main file records for documents on Marable responsive to his FOIA 
request. The analyst then disclosed to Griffey, perhaps mistakenly, 
that a search for previous requests for records on Marable turned up 
a single file that was "blackballed" per the agency's "standard 
operating procedure."

So last May, Griffey again turned to FOIA, this time to try and gain 
insight into the blackballing process. He filed a FOIA request with 
the FBI seeking a copy of the agency's standard operating procedure 
for "blackballing" files.

Two months later, he received 
pages from an untitled and undated PowerPoint presentation that 
outlined procedures for blackballing files from FOIA requests. The 
FBI cited <http://www.fbi.gov/foia/foia-exemptions>three exemptions 
under the 
to justify withholding a complete and unredacted copy of the PowerPoint:

(b)(6) Personnel and medical files and similar files, the disclosure 
of which would constitute a clearly unwarranted invasion of personal privacy.

(b)(7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:

C. Could reasonably be expected to constitute an unwarranted invasion 
of personal privacy;

E. Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law ...

Griffey appealed the FBI's decision to withhold information contained 
in the PowerPoint under the (b)(7)(E) exemption, but it was denied.

Still, the PowerPoint pages the FBI did turn over to Griffey provide 
insight into the "blackballing" process. On a page titled, "Blackball 
Files," it says files identified as 190 and 197 "main files," which 
classifications pertaining to FOIA/Privacy Act requests for files on 
people and civil litigation, are blackballed unless "specifically 
ask[ed] for" by the requester when an initial FOIA request is made.

Moreover, the agency deems certain "control files," "separate files 
which relate to a specific matter and is used as an administrative 
means of managing, or 'controlling' a certain program or 
matter," that pop up and are unresponsive to a FOIA to be ripe for 
blackballing. However, a FOIA analyst must first get permission from 
a supervisor before a "control file" can be blackballed.

Finally, according to the PowerPoint, some files are automatically 
blackballed by an FBI FOIA analyst, but the public is not permitted 
to know the classification of files that fall into that category 
because the FBI redacted that part of the PowerPoint, claiming 
disclosure would reveal "techniques and procedures for law 
enforcement investigations and procedures."

"Not only are we not told when the FBI withholds material from FOIA 
requests, but we are not even allowed to know all of the kinds of 
material it withholds," Griffey told Truthout. "The law itself and 
not just its enforcement, is now effectively secret."

But Bill Carter, an FBI spokesman, told Truthout in an interview that 
"blackballing" is not about secrecy nor is the process used in any 
way to conceal responsive records, which the 
Department revealed it has been doing for more than two decades in 
certain cases.

"Blackball is a term of art used by the [FBI's] FOIA section people 
in the records management division," he said. "It's an unfortunate 
term. It applies to people and events. It means that we pulled a file 
that initially looked responsive but after a review it turned out it 
wasn't because the file didn't match the requesters' specific 
request" for records.

Carter sent Truthout an email that contained an explanation of the 
blackballing process as provided to him by Dennis Argall, the 
assistant section chief of the Record/Information Dissemination 
Section, FBI's Records Management Division:

"[B]lackball" is a term we typically use to describe a file (not a 
request) that initially looked responsive but upon review we find 
it's for a different guy or event. It can also be used to describe a 
file that we won't process because, i.e., a guy makes a request for 
his "FBI file" in 2005 and [we] process it for him. When he makes 
another request for his "FBI file" in 2011, we will only process his 
"records" but will not process the file that was created to respond 
to the 2005 FOIA request, which is 190 file series [the 
classification the FBI uses for files requested on people].

That's exactly how the FBI described the blackballing process to 
attorney Kel McClanahan, executive director of Arlington, 
Virginia-based <http://nationalsecuritylaw.org/index.html>National 
Security Counselors, a public interest law firm.

McClanahan told Truthout in an email interview that he first learned 
about blackballing when the term was used in a set of FBI "processing 
notes" he requested from the agency to determine how FBI FOIA 
analysts had handled one of his FOIA requests.

Although McClanahan believes there is "definitely a place for 
blackballing in the FOIA process" he said the way the FBI "does 
blackballing leaves a lot to be desired."

"First of all, even though [the FBI] may blackball 50 records and 
release 3, they never tell the requester about the 50," McClanahan 
said, hitting on Griffey's main complaint about blackballing. "They 
never mention word one about 'and we found other records that we 
deemed non-responsive.' The requester is left to wonder why the FBI 
only found 3 records about the subject in question and he will never 
know that they found 50 others that they ultimately deemed 
non-responsive unless he has the foresight to FOIA the FBI's 
processing notes for his request. Knowledge like that is very 
important when a requester is trying to decide whether or not to tie 
up [the FBI's Office of Information Policy] with an administrative 
appeal, let alone litigation."

McClanahan said his concerns would largely be addressed if the FBI 
"only blackballed records for good reasons."

"If I could trust the FBI only to blackball things that were 
clearlynon-responsive, I don't need to know that they found 
completely unrelated records," he added. "However, that's not what 
the FBI does. I have seen it blackball records because they 'weren't 
FBI records,' even though they were in FBI files (they were FBI 
copies of other agencies' records, which any FOIA person worth his 
salt knows are still responsive to a FOIA request made to FBI). I've 
seen it blackball records because the request asked for 'internal FBI 
records' and the records in question were sent outside of the FBI, 
based on a strained interpretation of the word 'internal.'"

The FBI will be forced to make a choice "if it wants to apply FOIA 
correctly," McClanahan said.

"The agency can either limit its blackballing to records thatnobody 
would think are responsive (e.g. different people with the same name, 
records outside a set time frame); or it can tell requesters in the 
administrative stage that it determined that certain records were 
non-responsive and why," he said. "Failing to do either, however, is bad FOIA."

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