Judge Knocks FBI on Secrecy in Old FOIA Battle

WASHINGTON (CN) – A murder investigation that has supposedly been closed for a quarter-century is at center of a federal court battle over old records that the FBI still keeps secret.

Hyram Kitchen, dean of the veterinary school at the University of Tennessee, was killed in 1990. Ambushed in his driveway while on his way out for an early morning meeting, the doctor was shot eight times – twice in the back of the head.

Police could not connect the murder to militant animal-rights activists but did acknowledge that there were rumors about extremists on a witch hunt for individuals like Kitchen.

The FBI closed its investigation of Kitchen’s murder more than 25 years ago, but his assailants remain unknown.

While fielding a request for its records on the case by Ryan Noah Shapiro, however, the FBI invoked exemption 7(A) of the Freedom of Information Act, which permits a law enforcement agency to withhold records whose exposure could interfere with enforcement proceedings.

Records on Kitchen are just one part of a FOIA battle Shapiro has been fighting since 2013.

U.S. District Judge Randolph Moss explained Monday that there is good reason for the FBI to be cautious when it comes withholding “search slips” and “processing notes” generated in response to prior FOIA requests.

“As the FBI explains, disclosure of these records ‘might allow a savvy FOIA requester to identify the rare’ occasions when ‘the FBI has exercised its discretion to issue a [“No Records”] response to a FOIA request for records that are “excludable” under FOIA, and thus would risk the implicit disclosure of highly sensitive information relating to ongoing investigations, confidential informants, and classified national security matters,’” Moss wrote.

When it comes to an array of FOIA requests relating to domestic terrorism investigations, as is the case here, the FBI argued that any disclosure of the use of the FOIA exclusion carries risks.

Whether it reveals that the records exist or do not exist, disclosure would, as a result, ‘allow animal extremist terrorists to gauge the FBI’s strengths and weaknesses within certain areas of the [domestic terrorism] arena and [to] structure their activities in a manner that avoids detection and disruption by the FBI,” the FBI says, according to Monday’s ruling.

The judge granted Shapiro summary judgment, however, with respect to search slips and processing notes related to the Kitchen murder.

If Kitchen’s case has in fact been closed all these years, Moss said, “the FBI needs to do more to explain how its disclosure of information revealing the originating office for that investigation, or any other information, poses a present day threat of circumvention of the law.”

The FBI wanted summary judgment, but Moss declined “without additional evidence and explanation regarding the specific risk posed by disclosure of the file numbers in the 122 documents at issue.”

He did open the door, however, for the FBI to share some of the details in an ex parte, in camera declaration.

A status conference in the case is scheduled for April 5.

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