FBI Said Enough About Posing as Media, Judge Rules

WASHINGTON (CN) — Reporters failed to sway a federal judge that the FBI could have shed more light on its practice of impersonating journalists, a tactic that in one case led to the arrest of a bomb-threat-making teenager.

The Reporters Committee for Freedom of the Press and Associated Press reporter Raphael Satter have been clamoring for the records since 2014.

That October the Seattle Times reported that an FBI agent had posing as an AP editor seven years earlier to investigate a bomb threat emailed to teachers and administrators at Timberline High School in Lacy, Washington.

Charles Jenkins, 15 at the time, was apprehended after he clicked on a fake Seattle Times link containing spyware provided by the pretend journalist.

In response to the ensuing lawsuit under the Freedom of Information Act, the FBI processed 267 pages of records and released 186 pages of the reports, either in full or in part. Duplicates accounted for 22 of the withheld pages, and the FBI asserted various exemptions as to why it withheld the remaining 59 pages.

In addition to challenging those exemptions, however, the AP and RCFP accused the bureau of failing to conduct an adequate search. In a blog post, the RCFP noted that one of the heavily redacted documents suggests that the FBI violated its own guidelines in having an agent impersonate a reporter.

U.S. District Judge Richard Leon nevertheless ruled the FBI at summary judgment Friday, saying it conducted a reasonable search and that its redactions were justified.

“To be sure, plaintiffs assert that production of the records they seek ‘will inform the public as to whether the FBI followed its own internal guidelines in the Seattle case and in other cases,” Leon wrote. “But they do not explain what, if anything, the disclosure of information identifying individual government employees would add to informing the public.”

The FBI has not returned a request for comment.

In addition to the lawsuit, news of the FBI’s impersonation of journalists led 24 news organizations and the RCFP to write to FBI Director James Comey and then-Attorney General Eric Holder. They complained that “the practice endangers the media’s credibility and undermines its independence, and that it appeared to violate FBI guidelines for when such tactics were permissible.”

The Office of the Inspector General released its report on the FBI's policy last year, saying new restrictions will ensure it is only used when expressly authorized.

"The new interim policy ... clearly prohibits FBI employees from engaging in undercover activity in which they represent, pose, or claim to be members of the news media, unless the activity is authorized as part of an undercover operation," the report states.

It adds that an application to impersonate members of the media must be approved along the chain of command.

"In order for such an operation to be authorized, an application must first be approved by the head of the FBI field office submitting the application to [FBI Headquarters, or FBIHQ], reviewed by the Undercover Review Committee at FBIHQ, and approved by the Deputy Director, after consultation with the Deputy Attorney General," the report says.

AP spokesman Paul Colford noted at the time that the OIG's report would not prevent the impersonations.

He said the news cooperative was "deeply disappointed with the inspector general's findings, which effectively condone the FBI's impersonation of an AP journalist in 2007."

A representative for RCFP was not immediately available to comment on Judge Leon’s ruling. In response to the audit last year, RCFP chairman Dan Boardman said the “policy can seriously damage both the public’s trust in its free press and the ability of journalists to hold government accountable.”

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