Tuesday, January 17, 2012

The FBI's Secret Practice of "BlackBalling" Files Has Never Been Publicly Disclosed Until NOW: What Does that Mean?

""Have you ever filed a Freedom of Information Act (FOIA) request with the FBI and received a written response from the agency stating that it could not locate records responsive to your request?

If so, there's a chance the FBI may have found some documents, but for unknown reasons, the agency's FOIA analysts determined it was not responsive and "blackballed" the file, crucial information the FBI withholds from a requester when it issues a "no records" response.

The FBI's practice of "blackballing" files has never been publicly disclosed before. With the exception of one open government expert, a half-dozen others contacted by Truthout said they were unfamiliar with the process of "blackballing" and had never heard of the term.

Trevor Griffey learned about "blackballing" last year when he filed a FOIA/Privacy Act request with the FBI to determine whether Manning Marable, a Columbia University professor who founded the Institute for Research in African-American Studies, sought to obtain the FBI's files on Malcolm X under FOIA. At the time of his death last April, Marable had just finished writing an exhaustive biography on the late civil rights activist. Griffey filed the FOIA hoping he would receive records to assist him with research he has been conducting related to a long-term civil rights project he has been working on.

In a letter the agency sent in response to his FOIA, the FBI told Griffey that it could not locate "main file records" on Marable responsive to his request, an indication that the FBI conducted a very narrow search for documents.""

""Griffey, who also teaches US history at The Evergreen State College in Olympia, Washington, and is co-editor of the book, "Black Power at Work: Community Control, Affirmative Action and the Construction Industry," was baffled. He found it difficult to believe that Marable would not have filed a FOIA for Malcolm X's FBI file. So, he sent an email to an FBI FOIA analyst asking for clarification.

The FBI FOIA analyst responded to Griffey by asking him to supply additional "keywords" to assist in a search of the agency's main file records. The analyst then disclosed, perhaps mistakenly, that a search for previous requests for records on Marable turned up a single file that was "blackballed" per the agency's "standard operating procedure."

So last May, Griffey again turned to FOIA, this time to try and gain insight into the blackballing process. He filed a FOIA request with the FBI seeking a copy of the agency's standard operating procedure for "blackballing" files.

Two months later, he received five pages from an untitled and undated PowerPoint presentation that outlined procedures for blackballing files from FOIA requests. The FBI cited three exemptions under the law to justify withholding a complete and unredacted copy of the PowerPoint:

    (b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    (b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

    C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

    E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law ...

Griffey appealed the FBI's decision to withhold information under the (b)(7)(E) exemption, but it was denied.

Still, the PowerPoint pages the FBI did turn over to Griffey provide insight into the "blackballing" process. On a page titled, "Blackball Files," it says files identified as 190 and 197 "main files," which are FBI classifications pertaining to FOIA/Privacy Act requests and civil litigation, are blackballed unless "specifically ask[ed] for" by the requestor when an initial FOIA request is made.

Moreover, the agency deems certain "control files," "separate files which relate to a specific matter and is used as an administrative means of managing, or 'controlling' a certain program or investigative matter," that pop up and are unresponsive to a FOIA to be ripe for blackballing. However, a FOIA analyst must first get permission from a supervisor before a "control file" can be blackballed.

Finally, according to the PowerPoint, some files are automatically blackballed by an FBI FOIA analyst, but the public is not permitted to know the classification of files that fall into that category because the FBI redacted that part of the PowerPoint, claiming disclosure would reveal "techniques and procedures for law enforcement investigations and procedures."

"Not only are we not told when the FBI withholds material from FOIA requests, but we are not even allowed to know all of the kinds of material it withholds," Griffey told Truthout. "The law itself and not just its enforcement, is now effectively secret."

But Bill Carter, an FBI spokesman, told Truthout in an interview that "blackballing" is not about secrecy nor is the process used in any way to conceal responsive records, which the Justice Department revealed it has been doing for more than two decades in certain cases.

"Blackball is a term of art used by the [FBI's] FOIA section people in the records management division," he said. "It's an unfortunate term. It applies to people and events. It means that we pulled a file that initially looked responsive but after a review it turned out it wasn't because the file didn't match the requestors specific request" for records.""

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