[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.
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
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
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
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
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
"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,
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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