Judge dings FBI for response to inmate’s FOIA requests

08/06/2014 8:13 AM

08/06/2014 8:26 AM

A federal judge has slapped the FBI, or maybe just laughed at it, for making “transparently implausible” arguments while resisting a prison inmate’s Freedom of Information Act requests.

The feds, U.S. District Judge James E. Boasberg wrote, in what sounds like a state of near-incredulity, argued that the “FOIA request need not be disclosed because they reside on two CDs and a thumb drive.”

That’s right. The FBI seemed to say that information was exempt from disclosure because of the medium it was stored on.

The FOIA requests came from Gregory Bartko, currently serving the fourth year of a 23-year prison term for conspiracy, mail fraud, and selling unregistered securities. He’s seeking documents concerning the federal prosecutor who got him convicted. The FBI and the Justice Department’s Office of Professional Responsibility released some, but not all, of the documents Bartko wanted.

In his 21-page decision published Tuesday, Boasberg allowed Bartko’s FOIA pursuit to continue. Of particular note was his flat dismissal of part of the government’s argument for withholding the CDs and thumb drive.

“The Bureau’s rationale seems to be that the electronic media in question are not ‘records’ for FOIA purposes because they are physical items that were presented to prosecutors as evidence,” Boasberg wrote. “Why this reasoning would exclude CDs that hold documents in digital form but not, say, the printer paper that will eventually hold this Opinion is beyond the Court.”

“In any case,” Boasberg went on, “no sophistry is necessary here, as Congress, with commendable technological foresight, amended FOIA in 1996 to cover records ‘maintained by an agency in any format, including an electronic format.’”

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