WASHINGTON (CN) – The FBI failed to perform an adequate search in response to Freedom of Information Act requests for documents related to its policy of having undercover agents pose as journalists to catch criminals, the D.C. Circuit ruled Friday.
The ruling reverses a federal judge’s finding that the agency had fulfilled its FOIA obligations.
Two media groups brought the underlying challenge based on reports about how the FBI apprehended an individual who in 2007 made a series anonymous bomb threats to a Seattle high school, causing near-daily evacuations of students, teachers and administrators.
Believing the threats were the handiwork of a narcissist, the FBI agents investigating the matter devised a plan: They would flatter the culprit into clicking a link that appeared to be press coverage suggesting he’d outsmarted the authorities.
When he did, a specialized malware would be secretly delivered to his computer and it would reveal his location. The plan worked and the individual calling in the bomb threats was arrested.
A technologist for the American Civil Liberties Union spotted the FBI’s ruse several years later while reviewing documents from an earlier records request. News of the media-impersonation tactics quickly made national headlines. The New York Times even printed a letter in justification of the ruse from FBI Director James Comey Jr.
In the wake of the controversy, the Reporters Committee for Freedom of the Press and Associated Press filed three FOIA requests for documents on the FBI’s impersonation of journalists and creation of “fake news” in the course of investigations.
Friday’s ruling says they “were concerned that ‘the utilization of news media as a cover for delivery of electronic surveillance software’ both ‘endangers the media’s credibility and creates the appearance that it is not independent of the government’ and ‘undermines media organizations’ ability to independently report on law enforcement.'”
Although the FBI responded to one request by stating it had no responsive records, it later released several records related to the bomb-threat investigation but identified no other instances of media impersonation.
The organizations sued and appealed to the D.C. Circuit when a federal judge in Washington sided with the FBI and the Department of Justice.
On Friday, a three-judge panel unanimously reversed. “The bureau has failed to demonstrate that it ‘conduct[ed] a search for the requested records, using methods which can be reasonably expected to produce the information requested,’” U.S. Circuit Judge David Tatel wrote for the court.
The Reporters Committee argued that the FBI failed to conduct an adequate search for records using “search terms and the type of search performed” under the circuit’s standards.
Tatel agreed, holding “the FBI could have better justified its search methods.”
The parties did not immediately respond to requests for comment.