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FBI Must Dig for More Files on Aaron Swartz

(CN) - Though the FBI need not identify special agents and others who investigated the late "hactivist" Aaron Swartz, it must dig for more related records, a federal judge ruled.

Swartz had made a name for himself as a co-creator of Reddit.com and the code powering RSS feeds before the young programmer set his sights on open access to peer-reviewed scholarly research.

He narrowly dodged prosecution after creating Recap, a free analogue of the federal court database PACER, short for Public Access to Court Electronic Records, but came under fire again in 2011 after downloading more than 4 million academic articles from Jstor, a scholarly database he accessed at Massachusetts Institute of Technology's library.

Jstor decided not to press charges and MIT remained silent, but federal prosecutors indicted the Harvard fellow that July for several felony violations of the Computer Fraud and Abuse Act.

Facing more than 30 years in prison and $1 million in fines, Swartz hanged himself on Jan. 11, 2012.

The case prompted MIT doctoral candidate Ryan Shapiro to do what earned him the designation by the Justice Department as the "most prolific" filer of Freedom of Information Act (FOIA) requests.

He requested records related to Swartz from the FBI, Terrorist Screening Center, National Joint Terrorism Task Force, or any Joint Terrorism Task Force.

Though the FBI said it found 23 responsive pages, it provided only four of them in full.

Shapiro said the agency's search was inadequate and that it improperly withheld 17 pages, including two files - totaling four pages - considered duplicates of documents previously provided, as exempt by the FOIA.

After considering the unredacted material in camera, U.S. District Judge Paul Friedman in Washington, D.C., granted the FBI partial summary judgment Monday.

The 14-page ruling credits the FBI's claim that the redacted portions were withheld as "clearly unwarranted," as they identify FBI special agents and support staff, third-party informants, "merely mentioned" third parties, and a non-FBI federal employee.

Identifying the special agents involved in Swartz's case may lead to "unnecessary, unofficial questioning" about investigations, and it could also lead persons of "all strata of society" disturbed by FBI searches and arrests to target or seek revenge on the agents, according to the ruling.

"In the FBI's view, there is no public interest sufficient to outweigh the privacy interests of its special agents and support personnel," Friedman wrote. "Redaction of the names of federal, state and local law enforcement personnel and support staff under circumstances similar to those described here has routinely been upheld for the reasons stated by the declarant. After reviewing the redactions, the court agrees that the redactions made by the FBI are justified."

Identifying those "merely mentioned" in FBI records "would constitute an unwarranted invasion of privacy," as well, according to the ruling.

The FBI may also withhold the name of a non-FBI federal employee, the ruling states.

"The FBI's declarant explains that disclosure of this information could subject the individual to unauthorized injuries and harassment, and the court agrees," Friedman wrote.

Friedman did question, however, whether the FBI conducted a good faith, reasonable search.

"Although the court recognizes that a full-text search may not be warranted in every case, it finds the FBI's explanation as to why it was unwarranted here to be lacking," he wrote. "The court therefore will direct the FBI to either conduct a full-text search of [the Electronic Case File] ECF or provide further explanation as to why such a search is unnecessary in this particular case."

The FBI must also dig deeper, as its initial search of its Central Records System (CRS) of over 116.5 million files supposedly did not call up any responsive documents.

"In light of the court's view that the plaintiff's request is not confined to records 'of a criminal investigative nature,' the FBI will be directed to consider whether responsive records would reasonably reside outside the CRS, and either perform any additional appropriate searches in databases or records systems outside the CRS or explain why additional searches would not be appropriate," the opinion states.

The FBI must also provide the third-party requests and related files supposedly received after an unspecified "cut-off date," or explain why they were withheld, according to the ruling.

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