Feds Must Search for Records on Judge Spying

     (CN) — A government agency won no mercy in pointing to a crushing backlog of Freedom of Information Act requests to duck a reporter investigating the surveillance of judges.
     Vice News reporter Jason Leopold, formerly with Al-Jazeera America, filed two Freedom of Information Act, or FOIA, requests in March 2014, regarding National Security Agency and FBI “surveillance of federal and state judges.”
     But the agency and the Justice Department’s Office of Legal Counsel, OLC for short, sought summary judgment and dismissal, arguing they had no such records.
     U.S. District Judge Tanya Chutkan rejected that claim last July, finding the government’s search inadequate “on a small number of issues,” and that it inadequately explained its reasoning.
     The judge ordered the NSA and FBI to conduct two additional searches and give Leopold certain other information, such as memoranda and legal opinions, including drafts and final edits.
     The agencies claim they found no such records before the court’s additional order.
     “The fact that no final legal advice on this subject was located . . . made it much more difficult to identify any likely locations to search for any draft legal advice that might exist,” OLC Special Counsel Paul Colborn claimed.
     The office nonetheless ultimately asked two of its senior attorneys with long tenures and close familiarity with its work on national security and surveillance matters if they knew of any classified or unclassified projects on the propriety of surveilling federal or state judges.
     Yet no responsive records turned up, according to the office.
     A general inquiry sent to all office attorneys also yielded no results, OLC claims.
     Searching the office’s paper files and departed attorneys’ emails and hard drives “likely would take several years and the diversion of resources from other FOIA requests,” Colborn said.
     But Judge Chutkan refused to award the government summary judgment Monday, finding that simply asking two senior office attorneys did not amount to conducting a full search under FOIA.
     “OLC employs approximately 20 to 25 attorneys at any one time, and Colborn ‘conservatively estimates that more than 300 attorneys have worked in the office during the time period since 1933, the period of plaintiff’s proposed search,” according to her ruling.
     Chutkan held that “merely asking these two individuals about their personal knowledge does not, in the court’s view, sufficiently demonstrate that responsive documents do not exist or would not be found by a more in-depth search.”
     The judge later added, “The same holds true for asking all current OLC attorneys about whether they knew of responsive documents, as such documents could have been generated, unbeknownst to any current OLC attorneys, by an attorney who is no longer there, or by any of the hundreds of attorneys who worked at the agency before them.”
     Yet the court will not require the office to ask its current attorneys to search their computers and emails for responsive documents, the ruling states.
     “Based on Colborn’s representations, the court finds that requiring OLC to manually open, one-by-one, over 160,000 files from over 100 OLC attorneys and staff members and then search the full text of each file individually would be unduly burdensome,” Chutkan wrote.
     The office must, however, search the email files of departed attorneys, which won’t take as long as searching paper files and hard drives, the ruling states.
     “While Colborn avers that it ‘likely would take several years and the diversion of resources from other FOIA requests’ to search for responsive documents among OLC’s paper files, hard drives and emails, he does not break out the time and resources that would be required to search only the emails of departed OLC attorneys,” Chutkan wrote.
     The emails and their attachments can easily be searched using an eDiscovery tool without needing to open each email and its attachments individually, according to the ruling.
     Leopold’s D.C.-based attorney, Jeffrey Light, said, “Hopefully this latest order will be the end of the matter and [the Justice Department] will finally fulfill its obligations under FOIA.”
     Justice Department spokeswoman Nicole Navas declined to comment on the pending litigation.

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