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How to Street Fight With the FBI over FOIA and Win

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One of the chief means by which the FBI accomplishes this is to deliberately search for records in such a way that the search routinely fails by design. There are numerous techniques a requestor can use to combat this, but two of the most crucial are: 1) Request a search not only for main file records (this is the FBI's default search) but also for "cross-reference" records, and 2) Request an "ELSUR" (Electronic Surveillance) search. Despite the FBI's (flatly dishonest) insistence to the contrary, a huge percentage of records will only be found if the FBI conducts these two additional searches, and the FBI will not conduct these searches unless you explicitly request it does so.

That said, the FBI frequently won't conduct these searches even if you do request them. At that point, you can appeal the FBI's inadequate search to the Department of Justice Office of Information Policy (OIP). However, this is frequently a slow and ultimately disappointing experience, as OIP often operates as little more than a rubber stamp for the FBI.

Sadly, the most effective means to compel the FBI to conduct an adequate search is to sue. It's really the only way to hold the FBI accountable to the requirements of the Freedom of Information Act. I currently have five FOIA lawsuits against the FBI covering roughly 200 of my 600 requests.

MuckRock: Where does FOIA shine as a tool and where does it fall short?

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Ryan Shapiro: FOIA is terrific in theory and largely toothless in practice. As a result, it shines primarily when dealing with agencies that view it with neutrality, or at least not antagonism. Unfortunately, the FBI and other intelligence agencies have long been flatly allergic to the Freedom of Information Act.

As an historian of the policing of dissent and the political functioning of national security, this is definitely a problem. Part of the issue is that FOIA itself is to some extent a misnomer. We don't really have a freedom of information act in the country as much as we have an open records act. One can't request information (in the form of a question), one needs to request records. This requires some advance knowledge of what those records are or might be. Especially when dealing with intelligence agencies that conceal the existence of the overwhelming majority of their records, this is frequently a prohibitive hurdle. And this is the challenge I was facing early in my PhD research.

My doctoral work at MIT builds upon my master's degree research. My dissertation in progress and broader project in part explore the use of the rhetoric and apparatus of national security to marginalize animal protectionists as threats to the state from the late nineteenth-century to the present. As is standard with historians, much of my research is archival. As is sadly far from standard, much of my work is also FOIA-based. I'm fortunate that my program, MIT's Program in History, Anthropology, & Science, Technology, and Society (HASTS), is very supportive of this approach.

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One thread of my research that is heavily FOIA-dependent is my effort to map out the nature and evolution of the FBI's understanding and handling of the animal rights movement. How did the animal rights movement first come to the attention of the FBI? How did the FBI's understanding of the animal rights movement evolve over time? How does the FBI understand the animal rights movement as component parts and as a whole? How does the FBI develop infiltrators within the movement? What role did and does industry play in the evolution of the FBI's understanding of the movement? And perhaps most importantly, beginning in 2004, how did the FBI come to designate the animal rights and environmental movements as the leading domestic terror threats in the U.S. without either movement physically injuring a single person in this country ever?

To answer these questions, I needed a lot of documents. Very few of these documents were publicly available in archives or elsewhere, so FOIA was the only real possibility for obtaining them.

However, I didn't know what the overwhelming majority of these documents were. Worse, even when I had a fairly clear sense of what the broad subject of some these documents might be, the FBI consistently claimed it could find no records in response to my requests. So I began learning as much as I could about the FBI's FOIA processes and experimenting with different kinds of requests.

One of the key elements of my eventual approach was to obtain signed consent forms from roughly 250 leading animal rights activists from the 1970s to the present allowing me to request their files. When successful, each one of these requests opened a tiny window into both the subject of my research and the deliberately byzantine filing systems of the FBI. I then combed through these releases for references to any additional specific documents or topics about which I could submit new requests, and then did the same again when I received records from those new requests. I would also compare the released records -- and my requests that produced them -- against my requests to which the FBI responded it couldn't locate records.

In the process, I've come increasingly close to developing a set of methodologies that make FOIA function with the FBI in a way it has generally failed to do so to date: as a tool for broad-scale historical research. I'm especially honored to have been invited to lecture on these techniques at a host of interested institutions, including the annual convention of the National Lawyers Guild, the National Press Club, and a series of universities and law schools.

MuckRock: What is your favorite FOIA story?

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Ryan Shapiro: Using the above approach, I've obtained roughly 40,000 pages so far from the FBI, and I have about 600 FOIA requests currently in motion with the Bureau. Most typically, however, the FBI has done with my requests what it so frequently does with FOIA requests. It simply sits on them. Though FOIA allows an agency only 20 working days to comply with a request, years would often pass with no apparent movement.

So I sued the FBI for failure to comply with the Freedom of Information Act. This lawsuit covers roughly 70 of my requests. In response, the FBI has invoked the "nuclear option" for a FOIA case. They've asked the judge for an Open America stay, which is basically a blanket exemption for an agency from having to comply with FOIA for a specified period of time. In my case, the FBI has asked the judge for an almost unheard of 7-year Open America stay.

To this end, the FBI is relying upon a radical new interpretation of a Cold War era FOIA doctrine called "mosaic theory." In so doing, the FBI is arguing that compliance with my dissertation FOIA research would "significantly and irreparably damage national security." Keep in mind, the FBI isn't arguing that giving me the documents I've requested would damage national security, although they clearly believe this to be the case. Rather, the FBI is asserting in court that simply deciding whether or not to give me the requested documents would irreparably damage national security.

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Freedom of Information, finally made easy.

Filing Freedom of Information Requests doesn’t need to be difficult. At MuckRock, we are dedicated to wading through the muck so you don’t. What does this mean for you? Less time spent mitigating complex bureaucratic processes so that you can focus on analyzing and reporting on the issues that matter most to you and your organization or business.

As the only public records request service of its kind in the United States, MuckRock serves journalists, researchers, activists and historians, with a track record of over 2,000 requests. Simply login to your account and submit your FOI request via our simple web-interface.

MuckRock acts as a request proxy, e-mailing, faxing or even snail mailing the request on your behalf. Documents are sent to our offices to be prepared by our team of experts for your convenience. We can even assist with analyzing your data. Our intuitive system ensures that your documents are for your eyes only until you're ready to publish.

Stumped for a story? MuckRock's community gives plenty of inspiration for compelling, data-driven reporting at the fingertips of customers, who have access to our exclusive data and stories without having to go on time-consuming fishing expeditions to reel in leads.

Cofounder Michael Morisy is an award-winning journalist who has had work featured in Boston Globe, the New England Center for Investigative Journalism, and many others. 

Cofounder Mitchell Kotler is a veteran of multiple technology startups including Achronix. He has a Masters in Electrical & Computer Engineering and a Bachelors of Science from Cornell University. 

Projects Editor Shawn Musgrave, a graduate of Boston University, has managed some of the largest public records projects ever done, working with groups like the Electronic Frontier Foundation, the Boston Globe and the Massachusetts Institute of Technology Media Lab. 

Reporter George LeVines, a graduate of University of Wisconsin-Madison, focuses on security, policing and historical government documents. He has been published by the the Christian Science Monitor, Boston.com, Dig Boston and many others. 

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How to Street Fight With the FBI over FOIA and Win