The classified documents in question, on their own, should concern anyone who cares about civil liberties. A set of policies and procedures, the documents outline how the FBI can access journalists’ phone records without search warrants or subpoenas approved by a judge. This is despite a 2013 promise by then-Attorney General Eric Holder to reform rules about spying on reporters after the Department of Justice secretly obtained phone records from over 100 Associated Press journalists. Holder’s reforms only applied to subpoenas in criminal investigations.
The documents also identify loopholes in FBI rules allowing undercover agents and informants to infiltrate and spy on members of churches, political organizations and universities — something, the Intercept said, that even the FBI acknowledged was a “risk to civil liberties.” Additionally, they reveal the FBI was targeting surveillance based on race and religion.
But worse than the material Albury turned over was the tool the FBI used to go after him for it: the Freedom of Information Act.
The FBI used as evidence against Albany FOIA requests made by the Intercept. According to an affidavit for a warrant obtained by Minnesota Public Radio, “on or about March 29 and 30, 2016, a presumed U.S. Person representing an online media outlet … made two separate requests for copies of specific documents from the FBI pursuant to the Freedom of Information Act.” The FBI is able to tell who accesses documents on its network. After the Intercept published the documents, the timing of the earlier FOIA request allowed the FBI to pinpoint Albury as a likely source. “Albury accessed the document on February 19, 2016, approximately one month and ten days prior to the FOIA request” and made images, the affidavit said.
The Government Accountability Project, the whistleblower-protection nonprofit where I work, suggests news organizations protect sources when making FOIA requests by disguising insider knowledge as part of broader requests for data and documents that aren’t specifically tied to the source’s work or job responsibilities. (Making a FOIA request to obtain documents with advice from a source is generally better for source protection than just releasing classified documents.) However, this strategy of disguising sources can’t work in some cases because agencies, including the FBI, regularly claim to be unable to find documents without having the exact name of the document, under the rationale that the request is overly broad.
In this case, the Intercept wasn’t able to avoid revealing it had an inside source. “The [Intercept’s] requests contained specific information identifying the names of the particular documents that had not been released to the public,” the affidavit said.
The FBI probably considers this useful for counterintelligence.
“Counterintelligence officials at national security agencies are more or less obliged to investigate the unexplained appearance of classified information (such as classified document titles in a FOIA request) in the public domain,” said Steven Aftergood, who directs the Federation of American Scientists project on government secrecy. If a news organization sends a FOIA request to the government — especially to a security agency like the FBI — based on nonpublic information from a whistleblower, there is a chance that FOIA request could spark a hunt for their source.
The FBI should end any policy of using FOIA requests in counterintelligence investigations. “It is quite disturbing that [the FBI] are scrutinizing FOIA requests in an attempt to root out whistleblowers,” said Trevor Timm, executive director of the Freedom of the Press Foundation.
FOIA requests provide a government-approved channel to access information. Requesting documents through a FOIA request or through a Mandatory Declassification Review allows the government to redact information that could legitimately endanger national security. When a news organization makes a FOIA request for a document it already possess, it is acting appropriately, and allowing the government a chance to redact information that should legitimately remain private. Instead, the government is taking advantage of the fact that news organizations attempt to follow the rules by using the FOIA requests to go after their sources, while still withholding information that could legitimately be released.
Agencies, especially the FBI — which is one of the least transparent — stall requesters for years, even over trivial information, and only release redacted copies of documents without key information, even when they don’t have a legal right to withhold that information. That’s what appears to have happened with the Intercept’s requests.
The Intercept, which already possessed the full version of the documents, decided they were newsworthy and could be made public safely, something other transparency advocates agreed with. “Nothing could even remotely be construed as ‘damaging’ to national security if it were public,” Timm said about the document showing rules for spying on journalists.
Still, publishing documents obtained through FOIA requests is a better option.
In this case, if the FOIA request hadn’t prompted an investigation into who the Intercept’s source was, publication of the documents launched it immediately anyway. The FBI could have controlled the release of information. Instead, it tracked the Intercept’s source, in part because the Intercept had tried to work through the system. Instead of covering up embarrassing documents and using FOIA requests for counterintelligence investigations, the FBI should work to be transparent and only redact actual national security information.
If news organizations have to worry about the federal government prosecuting, firing and harming their sources because of a FOIA request they sent, they will obviously start publishing them without giving the government the opportunity to protect valid national security secrets.