FBI May Withhold Records About Spying on Journalists - U.S. Ninth Circuit
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

FBI May Withhold Records About Spying on Journalists

Turning down journalists' claims about how the FBI spied on them, a federal judge ruled that the FBI adequately responded to their request for information about the agency's rules for warrantless searches.

The Freedom of the Press Foundation alleged the FBI hid information about spying on at least seven journalists, but the FBI said it had produced sufficient information about its practices under the Freedom of Information Act.

"While the FBI's search may not have been perfect, plaintiff was 'entitled to a reasonable search for records, not a perfect one,'" U.S. District Judge Haywood Gilliam Gilliam wrote in Freedom of the Press Foundation v. United States Department of Justice.

Reasonable, Not Perfect

The press advocates sought the records after The Associated Press revealed in 2013 that the Department of Justice seized months of phone records trying to find the source of a leak about a failed terrorist plot.

The FBI produced some records, but withheld a policy implementation guide, domestic operations guide, media guidelines, email and a presentation on the use of national security letters.

Capitulating to public criticism over the seizure of journalists' phone records, the FBI promised to protect press protections. But at a hearing last August, the journalists' attorney accused the government of hiding records to cover up its failure to do so.

In ruling on cross summary judgment motions, the judge based his decision in part on an agency declaration that the bureau conducted a "far more targeted search" than was requested by the press foundation. The judge also said the government properly invoked exemptions to disclosure.

National Security

Gilliam said that revealing the FBI's intelligence-gathering methods would risk serious harm to national security. He also declined to review the disputed files behind closed doors, finding in camera review should be a last resort in national security cases.

"'In camera inspection is particularly a last resort in national security situations like this case -- a court should not resort to it routinely on the theory that it can't hurt,'" he said, citing an ACLU case against the Department of Defense in 2011.

Related Resources: