FBI Can Keep Muslim Spy Files Under Wraps, 9th Circuit Rules

SAN FRANCISCO (CN) – The Ninth Circuit on Thursday overturned a ruling ordering the FBI to release thousands of files on its surveillance of Muslim communities in the United States.

The dispute over requested records will go back to district court where a federal judge must reassess whether the FBI can continue withholding nearly 50,000 pages of files under a public records law exemption.

The American Civil Liberties Union, Asian Law Caucus, and San Francisco Bay Guardian, a former independent weekly paper, sued the FBI to pry loose the Muslim spying files in 2010.

After a protracted legal battle, the FBI turned over some 50,000 pages of documents but continued to hold an additional 47,800, claiming they were exempt from disclosure under Exemption 7 of the Freedom of Information Act.

Documents obtained through the FOIA litigation show the San Francisco FBI office targeted Bay Area mosques and collected intelligence on the innocuous activities of Muslims based solely on their religious beliefs, according to the ACLU.

The files revealed FBI training memos that stated Muslims should be treated with suspicion, that Islam is inherently violent, and that religious practices and political activism by Muslims are signs of “increasing dangerousness,” according to the ACLU report.

In 2015, U.S. District Judge Richard Seeborg ruled that general records, such as training manuals and guidelines, could not be withheld under Exemption 7 of the Freedom of Information Act.

Relying on Ninth Circuit precedent, Seeborg concluded that Exemption 7 only applies to documents that are related to a specific investigation or enforcement of a particular law.

A Ninth Circuit panel on Thursday rejected Seeborg’s conclusion, finding that general documents related to a legitimate law enforcement activity can still be withheld under Exemption 7 in certain circumstances.

“We deny the application of Exemption 7 to generalized law enforcement documents simply because the government could not link them to enforcement of a specific law,” Circuit Judge Andrew Hurwitz, a Barack Obama appointee, wrote for the panel in a 13-page opinion.

Exemption 7(E) allows the government to withhold files that would reveal techniques, procedures or guidelines for investigations and prosecutions “if such disclosure could reasonably be expected to risk circumvention of the law.”

In support of its conclusion, the Ninth Circuit panel cited a 1982 ruling by the D.C. Circuit, Pratt v. Webster, which held government agencies need only show that documents are “related to the enforcement of federal laws” and that there is a “rational nexus” between the requested records and an agency’s law enforcement duties.

The panel rescinded Seeborg’s prior ruling and remanded the case for further analysis to determine if disclosing the records “would cause any of the specific harms” identified in six subsections of FOIA Exemption 7.

Circuit Judge Sandra Ikuta and U.S. District Judge James Gwin, sitting by designation from the Northern District of Ohio, joined Hurwitz on the panel. Ikuta was appointed by George W. Bush and Gwin by Bill Clinton.

ACLU attorney Angela Kleine, of Morrison Foerster in San Francisco, described the ruling as “a setback, but not a total defeat for transparency.”

“Many documents that the FBI withholds are investigatory, and the Ninth Circuit explicitly denied the FBI’s invitation to change the standard for those documents,” Kleine said.

However, this precedent-setting ruling could create more work for courts and the public to test whether files the FBI chooses to withhold are rationally related to a legitimate law enforcement purpose, she said.

The ACLU lawyer added that the FBI should still have to release the undisclosed files on its Muslim spying program because much of the material “has no rational nexus to actual law enforcement activity.”

The U.S. Department of Justice did not immediately return emails and phone calls seeking comment Thursday morning.

 

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