On May 16th, the New York Times reported that FBI Director James B. Comey had been asked by President Trump to end the investigation of Michael T. Flynn, the president’s former national security advisor who resigned amid questions into his connections with Russia.
“I hope you can see your way to letting this go, to letting Flynn go,” the president reportedly told Comey. We know this because Comey immediately memorialized the encounter in an unclassified memo. Later, Comey revealed during his congressional testimony two weeks ago, he leaked the memo through a friend, leading to the Times’ report.
Just minutes after the story of the memo broke, we put in a FOIA request for Comey’s memo. So too, it seems, did every other person with a keyboard and a passing understanding of public records laws.
A month later, our FOIA request was denied. So too were all the others. The process provided a quick look into the workings of FOIA during a time of ever increasing public records requests and controversy.
Public Records 101
FOIA, or the federal Freedom of Information Act (pronounced foi-yə), is the quintessential “sunshine law,” allowing public access to government documents made with their tax dollars. Under FOIA, all government records are presumably available to the public unless they fall into a limited range of exclusions. “Disclosure, not secrecy, is the dominant objective of the Act,” as the Supreme Court has put it.
As such, each federal agency has a FOIA office, through which the public can request documents. Each agency also has its own FOIA request procedure, requiring, at minimum, a simple written description of the documents requested. Requesters can also specify the form they wish the documents to be produced in, how much they are willing to pay for search and production should additional fees apply, and if the request should be expedited.
Under FOIA, agencies have 20 days to respond to a request. That does not mean that information will be made available quickly, however. Currently, many federal agencies face a significant backlog of FOIA requests. In fiscal year 2016, the federal government responded to little over 450,000 FOIA requests, according to the Department of Justice. The government recieved nearly 790,000 requests during that same period.
Once a request is processed, the documents must be searched for, retrieved, and produced, unless they fall into one of nine enumerated exemptions. Government records exempt from FOIA include information that is classified for national security reasons, privileged communications made between agencies, information that could “invade another individual’s personal privacy,” and information on wells.
Yes, wells. Under 5 U.S.C. § 552(b)(9), the government does not have to reveal “geological and geophysical information and data, including maps, concerning wells.”
Our Brief Comey Memo Odyssey
Why does Logikcull care about the Comey memo? Besides being interested in the hottest doc of the moment, Logikcull is also dedicated to making the public records process easy and efficient.
Putting in a request for the Comey memo was easy. Getting it, not so much. Here’s how the process unfolded.
The same day that the Times reported on Comey’s memo, we submitted a FOIA request through the FBI’s website. This was a vast improvement from FOIA requests of yore. In years past, requesting documents from some government agencies was best done through fax; web portals were almost impossible to use, snail mail was slow and unreliable. When the Pentagon’s sole FOIA fax machine went belly up in 2013, it causes a bit of a journalistic panic.
Our FOIA request was straight forward. We asked for the full contents of the ”unclassified memorandum written by James B. Comey that describes his interaction with President Donald J. Trump during a private meeting in the Oval Office on February 14, 2017,” as reported by the New York Times. We offered to pay some of the costs relating to search and production, should additional fees be needed.
On May 25th, the FBI acknowledged our request. Through email, the Bureau informed us of “eFOIA files available to download.” The link to those files would be active for 48 hours and could be renewed up to two times, making the documents available online for a maximum of 144 hours.
The first document acknowledged receipt of our FOIA request and the Bureau’s determination that we would be charged any applicable search and duplication fees. It was all fairly boilerplate. Interestingly, though, the FBI’s letter was dated May 22nd, three days prior to the notification email. The letter also greatly expanded the scope of the request. The subject of the request was identified as “all memos, emails, or other documents by James Comey regarding conversations with Donald Trump.” We had requested only the one memo.
Two weeks later, on June 14th, the FBI emailed us again. A new document was available! This letter from the Bureau informed us that our FOIA request would be expedited because it was “a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.”
Now we were getting somewhere.
That somewhere turned out to be a quick denial, though. Two days later, on June 16th, the FBI rejected our FOIA request. It wrote:
The material you requested is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). 5 U.S.C. § 552(b)(7)(A) exempts from disclosure:
Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to interfere with enforcement proceedings...
The records responsive to your request are law enforcement records. There is a pending or prospective law enforcement proceeding relevant to these responsive records, and release of the information in these responsive records could reasonably be expected to interfere with enforcement proceedings.
And Here Come the Lawsuits
The FBI informs FOIA requesters like us that a denied request can be appealed. It can also be litigated. If an appeal is denied or if an agency fails to respond within time, FOIA requesters may sue in federal court. We won’t be doing that, but other organizations are.
Our peers in the blogosphere, the New York Times, also had their FOIA request for Comey’s files rejected. (The Times never obtained a physical copy of the memo. Rather, Comey’s friend read parts of the memo to the paper over the phone.)
The same day that our request was denied, the Times sued the FBI, saying that the agency had failed to act on the newspaper’s request within the mandatory timeframe. The FBI “has no lawful basis for declining to release the records requested,” the Times’ suit claims.
The Grey Lady isn’t the only organization suing to get ahold of the Comey memos. The conservative watchdog group Judicial Watch is also suing after its FOIA request was denied. It’s one of six FOIA-related suits the organization is pursuing around, in their words, "the surveillance, unmasking, and illegal leaking targeting President Trump.”
So, in the end, Logikcull wasn’t able to obtain the first public copy of James Comey’s historic memo. We can’t say we’re too surprised. Perhaps these other FOIA requesters will have more success.
This post was authored by Casey C. Sullivan, Esq., who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.
