The FBI is undermining the Freedom of Information Act (FOIA) by shielding items that should be disclosed to the public under nebulous categories such as digital evidence, according to a lawyer working on a high-profile FBI records case.
“The FBI can say anything is digital evidence and they don’t enter it into their index systems and nobody ever knows about it, or nobody ever finds it,” Ty Clevenger, the lawyer, told The Epoch Times.
“While conducting additional research to confirm the whereabouts of the work laptop, the FBI located a DVD and a tape drive which are also currently stored in the same Evidence Control Room and are marked as derivative evidence,” Michael Seidel, the FBI’s records chief, said in a sworn declaration.
The records are not subject to FOIA because the FBI has not relied upon them and plans to return them to their owner when all related criminal proceedings are over, Seidel said, citing court decisions in DOJ v. Tax Analysts and Burka v. United States Department of Health and Human Services that outlined what constitutes an agency record.
Under FOIA, all agency records, with exceptions, are available to the public upon request.
Seidel’s declaration supports “the determination that the physical work laptop, DVD, and tape drive are not agency records, but rather are physical evidentiary objects not subject to the FOIA,” Andrea Parker, a government lawyer, told the court.
Seidel also said that the DVD and tape drive fall under “digital evidence,” which is defined as “digital evidence seized at a search scene or otherwise lawfully obtained and stored in an Evidence Control Room.”
Under FBI policy, digital evidence “must not be serialized into the FBI’s central recordkeeping system or any other FBI administrative or records management system.”
Seidel said that neither the work computer nor the derivative evidence was placed into the records systems or files.
“Instead, the FBI stored the evidentiary items in an Evidence Control Room as a physical item of evidence, in substantially the same manner as it would handle a bloody glove or firearm,” he said.
Clevenger said the FBI is violating FOIA.
“The FBI has a long and extensive history of violating the Freedom of Information Act. Unfortunately, there are no criminal penalties for violating FOIA, and as a practical matter there are no civil penalties, so the FBI doesn’t particularly care whether it breaks the law,” he told The Epoch Times via email. “When the new Congress convenes in January, I plan to ask the House Judiciary Committee to investigate the FBI’s systematic FOIA violations.”
Republicans will gain control of the House of Representatives in January 2023 after flipping about a dozen seats in the midterm elections.
The FBI did not respond to a request for comment.
Other Information Kept From IndexesFBI officials have noted previously that even some information that does not fall under digital evidence is kept off the system.
“Indexing information in the CRS is done at the discretion of FBI investigators when information is deemed of sufficient significance to warrant indexing for future retrieval,” Seidel said in an earlier declaration. “Accordingly, the FBI does not index every individual name or other subject matter in the general indices.”
When the FBI first reversed itself and said it did have information on Rich, it said it found the files in cross-references, or “reference serials,” which it defined as “records that merely mention or reference an individual, organization, or other subject matter that is contained in a main file record about a different subject matter.” The documents were located within the files that former special counsel Robert Mueller’s team produced that were maintained in the FBI CRS, or central records system.
Rich was murdered in Washington in 2016. Police never solved the killing.
But, he said, the FBI was in compliance with its obligations under FOIA.
“While the Government initially failed to locate over 20,000 pages of potentially responsive records, the Government’s search this time around was reasonably calculated to discover the documents Huddleston requested. And despite his efforts to do so, Huddleston was unable to present compelling evidence to the contrary,” the judge said. “Without such evidence, the Government’s search in this case is considered adequate under the law.”
The conclusions came from a Sept. 29 ruling that ordered the FBI to produce the information. The bureau has continued resisting, asking and receiving extensions of time and asking for reconsideration on various grounds.
In its latest filing, which outlined the grounds for reconsideration, the bureau also said it had found a three-page forensic report detailing the work an unnamed outside entity performed on the computer, a letter, and two FBI chain of custody forms.
The special agent who helped locate the information warned that its disclosure would harm the government investigation into Russian hacking. The FBI records office determined the records were responsive to FOIA, but bureau officials then determined none of the records should be released because they met exceptions to FOIA, including an exception aimed at protecting national security.
Read the files produced by the FBI in the Huddleston lawsuit below.