OAKLAND, Calif. (CN) — National Public Radio filed a Freedom of Information Act lawsuit in federal court Wednesday against the Federal Bureau of Investigation and other agencies that allegedly wrongly withheld information about police behavior during protests over George Floyd’s death.
NPR and Alameda County journalist Eric Westervelt claim that the FBI, the National Guard and the U.S. Park Police are withholding records requested in June 2021 concerning law enforcement agencies’ actions during protests in Lafayette Square in Washington, D.C., in 2020. The complaint demands that the feds comply with the First Amendment and immediately provide all requested records.
“Through its FOIA requests, plaintiffs seek to fulfill their journalistic function and to shine a public light on information about the clearing of Lafayette Square,” reads the complaint, filed in a federal court in Oakland, California.
Westervelt, working for NPR from Berkeley, California, has been investigating a late May 2020 incident when police cleared protesters from the square the day before then-President Donald Trump could walk from the White House to St. John’s Church for a photo op.
Law enforcement agencies forcibly removed protestors by using riot shields, batons, pepper spray and tear gas. The U.S. Park Police issued a report that the area had been cleared to allow a contractor to install anti-scale fencing, alleging property damage and injuries to officers taking place May 30 and May 31.
This incident continues to draw national scrutiny and calls for accountability from federal agencies. To pursue a story for NPR, Westervelt filed FOIA requests on June 24 last year, asking three federal agencies for copies of all records about operations conducted between the morning of May 30 and the night of June 1 that year, in and around Lafayette Square in Washington D.C.
In accordance with the public records law, he asked the FBI to “waive all duplication fees” because the information would be used in a news story.
More than nine months later, NPR alleges in the complaint that no documents answering Westervelt’s FOIA requests have been produced by the National Guard and the FBI. The U.S. Park Police has given “minimal documents” responding to the FOIA requests, the complaint added.
The complaint alleged that on July 21, 2021, the FBI stated that records sought in NPR’s FOIA Request were exempt from disclosure pursuant to a federal law, closing the request by citing a “pending or prospective law enforcement proceeding relevant to the responsive records.”
On Jan. 27 of this year, the U.S. Department of Justice’s Office of Information Policy also denied releasing records for the same reasons.
On Oct. 18, 2021, Westervelt’s attorney appealed the denial of the FOI request on the ground that the FBI failed to identify which law enforcement proceeding was pending.
U.S. Park Police responded to the FOIA request on Nov. 8, stating it had released material for other FOIA requests about Lafayette Park. NPR said these materials did not answer Westervelt’s request. Westervelt’s attorney then appealed the Park Police’s failure to provide materials for the FOIA request.
NPR’s complaint alleged that to date, there have been no responses from the D.C. Army National Guard and the Department of the Interior Office of the Solicitor, with both agencies missing the deadline of 20 business days to respond. NPR said they are legally entitled to these records because news agencies are guaranteed freedom of the press by the First Amendment, to “bare the secrets of government and inform the people.”
David Loy, legal director for the nonprofit public interest organization First Amendment Coalition, said in a phone interview Wednesday that the case is important for prodding at federal agencies’ power and demanding that journalists’ right to public documents be upheld.
He said NPR’s investigation could raise questions about whether law enforcement agencies cleared Lafayette Square “as a political stunt ... as opposed to any legitimate need to use force.”
“The whole point of the Freedom of Information Act is to hold the government to account, and it means that you have the right to the full story, not just what the press release says and what they want you to know,” Loy said. “There’s no excuse for failing to respond and produce some documents responsive to the request.”
Representatives for the FBI, Park Police and National Guard were not available to comment.
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