By JESSICA GRESKO
WASHINGTON (AP) — A federal appeals court heard arguments Monday in a case that developed after an FBI agent pretended to be an Associated Press journalist as part of an investigation into bomb threats at a high school in Washington state.
When the ruse became public in 2014, the AP and a press freedom organization attempted to get government records about the case and any other times FBI agents have impersonated journalists. The lawsuit the appeals court heard Monday was related to whether the FBI looked hard enough for records requested by the organizations.
A lower court ruled in favor of the government, saying the FBI had “conducted a good faith, reasonable search.” The organizations appealed.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit hearing argument in the case Monday, however, had tough questions for the lawyer representing the government. The judges wanted to know how the organizations bringing the case, the AP and the Reporters Committee for Freedom of the Press, could be expected to challenge the adequacy of the FBI’s search if they weren’t provided with the search terms the FBI used to carry out the request in various parts of the organization.
“There’s no description of how it was done,” Judge David Tatel told a lawyer representing the government.
Judge Brett Kavanaugh also underscored that it wasn’t clear how the search was conducted. And Judge Laurence Silberman wanted to know why the FBI hadn’t searched for records located in the office of the FBI’s director.
The lawsuit stems from a 2007 investigation into bomb threats emailed to Timberline High School in Lacey, Washington, which is near the state capital of Olympia. As part of the investigation, an FBI agent communicating with a suspect in the case portrayed himself as an AP reporter. The agent sent the suspect a link to a fabricated AP news article, a link that when clicked allowed the FBI to pinpoint the suspect’s location.
After the FBI’s actions came to light in 2014, resulting in an outcry by the AP and other news organizations, both the AP and the Reporters Committee for Freedom of the Press submitted records requests to the government under the Freedom of Information Act. The organizations asked for additional information about the Timberline High School incident, information about other instances where the FBI impersonated a member of the news media, and information about policies or guidelines governing the FBI’s impersonation of members of the media.
After getting no records, the organizations sued in 2015. The government ultimately turned over about 190 pages of records, more than half of those pages with redactions.