Judge Calls Strike One on Heavy FBI Redactions

From the introduction to the first document, the FBI redacted liberally in its production of records requested by the Electronic Privacy Center.

WASHINGTON (CN) — A public interest group vowed to fight on Wednesday after the FBI won another chance to defend its heavy redaction of documents concerning how it ensures the privacy of personal information it gathers.

The Electronic Privacy Information Center made its demand in 2014, requesting information on privacy-impact assessments and privacy-threshold analyses – studies that the FBI uses to test how well it protects private information.

Though the FBI produced 2,200 pages in response to EPIC’s request under the Freedom of Information Act, the pages were heavily redacted.

EPIC, a nonprofit focusing on emerging privacy and civil-liberties issues, filed suit in turn, rejecting the bureau’s claim that an exemption for law enforcement methods or techniques justified the redactions.

It won its case at summary judgment Tuesday, but U.S. District Judge Amit Mehta said the FBI deserves another shot to supplement the record.

Mehta, based in Washington, offered a word of advice for the FBI going forward.

“The heavy use of technical jargon makes it difficult, at least for this court, to discern precisely what ‘techniques and procedures’ the release of the withheld materials would disclose,” the 15-page opinion states. “Likewise, saying that disclosure of withheld information ‘could’ enable hackers to infiltrate ‘the FBI’s internal computer systems’ is simply a conclusory statement, unsupported by any facts. The court does not mean to diminish the difficulties attendant to describing technology systems and concepts to a non-technical audience. Nevertheless, those descriptions cannot be written as if the court possesses an advanced degree in computer science. Unfortunately, it does not. Thus, when the FBI revises its declaration, the court urges the agency to use less jargon and opt instead for plain language that will more easily enable the court to determine if the requirements of Exemption 7(E) are met. Further, the FBI also should evaluate its withholdings in light of the purposes of Section 208 of the E-Government Act.”

Jeramie Scott, EPIC’s national security counsel and director of the EPIC Domestic Surveillance Project, said the group will continue its fight.

“Privacy assessments are an important transparency tool that informs the public of the privacy risks of various government systems and allows the public to assess the government’s efforts to mitigate those risks and protect privacy,” Scott said in a Wednesday email. “The law requiring the FBI privacy assessments and FOIA both favor public disclosure, and the FBI should make the privacy assessments fully available to the public. EPIC will continue to pursue the public release of these records.”

Mehta’s ruling also highlights the importance of the records at stake.

“Technology systems that are vulnerable to being compromised, whether by internal or external means, do not merely put investigations at risk, but also imperil the privacy interests of those individuals whose personal information happens to come into possession of a law enforcement agency,” the judge wrote.

A spokesman for the Justice Department has not returned a request for comment.