FBI's Anarchist Designation Susceptible to FOIA Suit

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By Bernie Pazanowski

Aug. 8 — An individual designated as an anarchist extremist by the FBI may avoid the agency's efforts to keep parts of his file secret under Exemption 3 of the Freedom of Information Act, the U.S. Court of Appeals for the District of Columbia Circuit held Aug. 5 ( Labow v. DOJ, 2016 BL 253597, 5th Cir., No. 14-5220, 8/5/16 ).

But the opinion by Judge Sri Srinivasan sent the case back to the district court to decide in the first instance whether the exemption applies.

When the FBI identified him as an anarchist extremist, Jeffrey Labow filed a FOIA request to see his file.

The district court ultimately granted the agency summary judgment, upholding its release of only some of Labow's records.

Exemption 3

The FOIA's disclosure requirement doesn't apply under Exemption 3 if the records sought “are specifically exempted from disclosure by [another] statute.”

At issue here was the Pen Register Act, which says “[a]n order authorizing or approving” a pen register to record phone numbers dialed on the targeted line shall “be sealed.”

While the statute applied, the court said that it only applies to the pen register order, “not all information that may be contained in or associated” with it.

The court remanded to the district court to decide “whether [the] specific information withheld” is protected by the statute.

Labow also argued that information was wrongfully withheld under Federal Rule of Criminal Procedure 6(e), which bars disclosure of matters “occurring before a grand jury.”

While the court found Rule 6(e) applicable, it also sent this issue back to the district court to determine if release of the relevant records will reveal “the inner workings of the grand jury.”

Judges Karen LeCraft Henderson and Judith W. Rogers joined the opinion.

Jeffrey Light represented Labow. The U.S. attorney's office represented DOJ.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

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