Failure to Google foils FBI FOIA freeze

[David Farber <dave () farber net>]

Begin forwarded message:

From: "James S. Tyre" <jstyre () jstyre com>
Date: August 31, 2006 12:44:13 PM EDT
To: Dave Farber <dfarber () cs cmu edu>
Subject: Failure to Google foils FBI FOIA freeze

"For the times they are a-changin'."
        -- Bob Dylan

Davis v. DoJ, No. 04-5406, D.C. Cir Aug. 22, 2006
http://caselaw.lp.findlaw.com/data2/circs/dc/045406a.pdf

GARLAND,  Circuit Judge:  This case involves four audiotapes recorded  
more than twenty-five years ago during an FBI corruption  
investigation in Louisiana.  The plaintiff, an author, seeks release  
of the tapes under the Freedom of Information Act (FOIA), 5 U.S.C. §  
552.  There are two speakers on the tapes, one a "prominent  
individual" who was a subject of the FBI's investigation, and the  
other an "undercover informant" in that investigation.  The only  
question on this appeal is whether the FBI has undertaken reasonable  
steps to determine whether the speakers are now dead, in which event  
the privacy interests weighing against release would be diminished.

The FBI has not been able to determine whether either speaker is dead  
or alive.  It says it cannot determine whether the speakers are over  
100 years old (and thus presumed dead under FBI practice), because  
neither mentioned his birth date during the conversations that were  
surreptitiously recorded.  It says it cannot determine whether the  
speakers are dead by referring to a Social Security database, because  
neither announced his social security number during the  
conversations.  And it declines to search its own files for the  
speakers' birth dates or social security numbers, because that is not  
its practice.  The Bureau does not appear to have contemplated other  
ways of determining whether the speakers are dead, such as Googling  
them.

We conclude that the FBI has not "made a reasonable effort to  
ascertain" whether the two speakers, on whose behalf it has invoked a  
privacy exemption from FOIA, are living or dead. Schrecker v. Dep't  
of Justice, 349 F.3d 657, 662 (D.C. Cir.
2003) ("Schrecker II").  As a consequence, there is a serious  
"‘question whether the Bureau's invocation of the privacy interest  
represented a reasonable response to the FOIA request.'"  Id.  
(quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1085 (D.C. Cir.  
2003) (Williams, J., concurring)).  We therefore reverse the district  
court's dismissal of the plaintiff's FOIA complaint and remand for  
further proceedings.

[....]

--------------------------------------------------------------------
James S. Tyre                                      jstyre () jstyre com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net
Policy Fellow, Electronic Frontier Foundation     http://www.eff.org



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