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Judge Affirms FBI’s |Denial of Documents

WASHINGTON (CN) - The FBI need not turn over files sought by Marie Mason, an environmental activist serving a lengthy prison sentence for arson and other acts of property destruction, a federal judge ruled.

Mason, a member of Earth Liberation Front , an environmental activist group, was sentenced to 22 years in federal prison after pleading guilty in September 2008 to arson against a research facility at Michigan State University, and other destructive acts.

New York City attorney Susan Tipograph then filed a Freedom of Information Act request on her client's behalf, maintaining the documents sought would shine a light on "Green Scare" program being carried out by the government to the speech rights of environmental activists.

The FBI denied Tipograph and Mason access to the documents under exemption 7a of FOIA, which allows the government to withhold records or information that if released would interfere with law enforcement.

Tipograph then sued Department of Justice in Federal Court, seeking to compel the release of the records.

In her complaint, Tipograph described Mason's sentence as "Draconian," and said her client accepted a plea bargain in 2008 to avoid facing a life sentence for the role she played in "two acts of property destruction, which involved damage to a Michigan State University office conducting GMO (genetically modified organism) research and a piece of logging equipment."

Tipograph claimed Mason has been placed in a "control-management"-type prison unit because of her status as a political prisoner. "Ms. Mason is one of the hundreds of activists targeted by the government in its attempt to quell First Amendment protected activity related to animal rights and the environment, which has become known as the 'Green Scare,'" the complaint said.

The FBI did eventually release 199 pages of public source information and followed that up by releasing more documents that were released from a court sealing order.

In March, U.S. District Judge Christopher Cooper granted summary judgment to the government on the suit, ruling the FBI properly invoked Exemption 7(A) when withholding the documents.

Tipograph then asked the court to reconsider its grant in regard to the question of whether the government maintained a policy of invoking that exemption at the file level, rather than at the record level as courts have required. She argued the government hadn't addressed that issue in its motion for summary judgment, and Cooper agreed, vacating his order in regard to that narrow portion of the lawsuit.

On Tuesday, however, he once again granted summary judgment to the government.

"The government contends that (1) Tipograph's claim is moot because it has turned over all records to which she is entitled, and (2) Tipograph is without standing to bring her claim because she has not shown that she is likely to be injured in the future by any such policy," Cooper wrote. "The Court concludes that while Tipograph's claim has not been mooted by the release of records in this case, she has nonetheless failed to establish that her alleged future injury is sufficiently concrete or imminent to confer standing."

Cooper then turned more directly to Tipograph's claim of future injury, a complaint the judge dismissed as "speculative."

"Her complaint alleges in general terms that she 'intends to file additional FOIA requests in the future relating to records that are likely to be contained in investigative files, and as such is likely to be improperly denied records' based on the FBI's purported policy or practice 'in future requests.' ... Article III, however, requires Tipograph to provide more than generalized plans to file unspecified requests for information at some uncertain point in the future," he said.

"Due to 'the nature of [her] work - representing criminal defendants and activists being surveilled by the FBI,' it is certainly plausible that Tipograph will file FOIA requests in the future that could implicate the alleged policy or practice that she challenges here. The general statements in her declaration, however, do not "establish likely future injury 10 that is both concrete and imminent," Cooper wrote. "Therefore, Tipograph has "'to establish that [she has] Article III standing to bring [her] policy-or-practice claim.'"

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