the premise just says there are no responsive documents. when after that you have an opportunity to correct the misimpression that that leaves with the court. a lot of the argument was about, well, we didn't have an opportunity to correct the impression we had left until we were in the summery judgment hearing. in the in-camera proceedings where we weren't present. meaning the plaintiffs weren't present. it's hard for me to know. they filed the briefs. we didn't get to know the whole

story, obviously. but they're moving along those lines. because the purpose is to keep the requester from knowing that new documents even exist. and have been withheld. then you're filing the same documents that you've originally given a requester. then the court is at least first going to be left with the same impression they left. when do we have a chance to correct that? we corrected it as soon as we could. >> i don't see any other questions. thank you for getting up so early on the west coast there.

so we'll move on with the rest of the panel. they advise the media complaints on all aspects of content and news gathering with a special focus on social media and online content protection. drew, thanks very much. >> thank you for having me. i want to give a shoutout to the audience, who would be sitting here, but for being nine months pregnant now. she worked on the case as well. a reporter for the appeal. it's the memphis publishing company versus the fbi case. and it has to do also with the exclusion "c", which relates to confidential informant

information. just to give you a little bit of background on the case, and also if you have a chance when you go home, i encourage you to go to memphis commercial website. they have a terrific treasure-trove of documents and articles related to these requests where you can go and read up on this case. but specifically the focus of the request, which is the memphis appeal. the focus of the request was on an individual named earnest withers. he was a civil rights freelance photographer in memphis during the civil rights movement. he covered many of the events of the era. he took photos, but was also beaten by police covering the ed gars funeral. he took photos and road the bus with martin luther king jr.

during the free summer rides. he was also in the motel the night of king eas i sas nation and took famous photos. basically spying on the civil rights movement. and he not only provided photographs to the fbi, but also information that he was privy to being in conversations with the civil rights leadership that they did not think would be divulged to the fbi. after he passed away in 2008 the memphis commercial appeal reporter filed a request for owl documents related to earnest withers. and there had been rumors that

he also had been a confidential informant, a c.i. but he hadn't gotten the official confirmation yet. they got back a bunch of documents. got back a lot of documents that weren't responded to, obviously. one of those documents that he received from the fbi, directly, was what looks to be an innocuous memorandum. it's on the last page of the opinion in your packet. second to last page. and at the bottom, there's a line that says he was formally designated as ne-38r. caption. earnest withers, ci, end quote. and so mark, the reporter, got this document and said, well, this officially confirms for me that earnest withers was a c.i.

he went back to a bunch of documents and he was able to take it and five other references to witherss throughout all the documents. he knew right here that he was a confidential informant. so he filed a lawsuit. and he asked for a complete response. the confidential informant file was not included in the documents and specifically requested.

we filed that in november of 2010. we got a relatively new judge. and the fbi asked for five additional months. they got the five months. released more documents. and then moved for summery judgment. they invoked every exemption under the sun, including at the end of their brief, exclusion c-2. i this is the first time we saw nit the correspondenceses from the fbi. exclusion c-2 reads bhefr informant records by a criminal law enforcement agency under an infor's name or personal identifier are requested by a third party according to the name or personal identifier, the agency may treat the records as not subject to the requirements unless the informant's status has been officially confirmed.

they said, there isn't one. because we don't have to say that there is one. so that was our response. the lead on the case made the unusual call to instead of going back to a reply briefing filed a motion to compel an index on the file, taking the position that this document officially confirmed that he was a confidential informant for the fbi. and in order to focus the court's attention on this unique issue that has not been litigated very often, and when

it has been invoked, as you heard, you don't know about it, and a lot of instances. and so this is one of the few instances when you did know about it. we really wanted to focus the court's attention on that issue. we argued that c-2 really is the origin of c-2 comes out to the anti-drug use act in 1986. it was meant for senator leahy said use of it by criminal enterprises to learn about the ongoing investigations is narrow and more acceptable to legitimate users, especially the news media. he's saying that this was to close the loophole they allowed

them to submit them on themselves ls. they would find out in the circle and kill them. and so it served a good purpose, but it was being used over broadly here. and regardless of this, it was officially don firmed. this document says earnest withers, ci. that is officially from the ci. we had a hearing of a different view. and obviously any time you go up against them, second only to the cia, you're not looking good odds. so we went to court, had a hearing for deb jackson. and she issued an opinion after the hear iing that argued wheth or not it's intended under the drug act or not but she focused

on the one issue. they cannot invoke c-2 when the reason for they cannot invoke c-2. they said there's a doctrine related, but similar. if you require logical deductions to uncover this person as a c.i., that that is not enough for official confirmation. the fbi argued there had to be a press release, or official statement in congress or something. but the court disagreed. and we argued the reading, not reasoning. all you have to do is read earnest withers ci. they said such an argument is not wor think of serious consideration and insults the common sense of anyone who reads the documents.

because what happened is, the fbi didn't just give it to us once. they gave it to us twice. in the summery judgment briefing, attached to the affidavit, they reattached the document. they reattached it in a different form. this box that was redacted then had no notation for why it was redacted. when they rereleased the document, they invoked 7d, the exemption for confidential informant situation. so judge jackson said, yeah, you released it once. then you released it again. not only released it again, but you said this is confidential information redacted. she said no, that's official confirmation by the fbi.

no statutory language requires the content. she also quoted the dictionary definition. it does not mean a confirmation. it means a fact has been established. not formally or purposesfully announced. think said it also doesn't alter the result. specifically here in high profile requests like this one where you're talking about a confidential informant who was in the same room as martin luther king junior during civil rights movement taking pictures but also giving the fbi information. they needed to take the utmost care in responding to the request. and it should have invoke d

different one. this was the soul subject of their request. so the production was not that large. in one of the redactions also suggested that one took the time to look at it, because they had put the box there. it said 7d. she said it was officially confirmed. this doesn't alter the results. where we are now is the fbi has been given time to produce a bond index. and the fbi is also filed a bunch of motions relating to a coming in the future. >> thank you very much. next up is jeff light. jeff graduated georgetown law.

currently in private practice. he serves on the dc law and does substantial work, as a result his work often involves the fbi, department of justice and homeland security. his counsel of the bill of rights defense committee on the campaign seeking transparency in the operations and information sharing procedures, at more than 70 intelligence fusion centers across the country. jeff, thanks for coming. >> thanks, i appreciate the opportunity to be here. thanks, i appreciate the opportunity to be here. it's a common experience for the requesters to write a request to the fbi and say give me a file. they often get back a response that says no responsive records. and one would presumably conclude from that and rationally so that there are no

responsive records. but as we've heard already, from the front panelists, there can be records. but they are considered not part of foya. another thing is the fbi did not do a cross reference search they maintain a record system called crs. to make an analogy, it's like having a series of folders, and what they do when you ask for requests about yourself is look at the tabs of the folders to see if your name is on any of them. they don't go inside of the folders to see if the papers in there have your name mentioned. it's like just looking at the subject line of the e-mail and not searching the body of the e-mail.

they have a policy of not doing a cross reference search. when one brings litigation to the official policy is to do a cross reference search for the first time if it hasn't been conducted. if adequacy of the search is not challenged. however, sometimes the requester is sophisticated enough to ask for a cross reference search. in those cases the law is clear the fbi is supposed to conduct a cross reference search, but in a large number of cases, it does not. when an appeal is made to oip, sometimes the oip will remand fbi and say, you need to do a cross reference search, or they have the fbi do a cross renchs

search, find nothing and say, rest assured, a cross reference search was done now. another problem with the kros reference searches is that they often, and we believe that the fbi's policy is to only look at the first listed subject of the file. so if there are ten people whose names are in the subject list, that is like being in the subject line of an e-mail, and they may be listed alphabetically or however. they only look at the first one. i've seen quite a few cases where the did a specific request from a cross reference search and has documents that have the requests, the subject of the request, their name is in that document, it's just not listed

first, and then the fbi says, oh, we don't have anythingment and this is an area that is right for litigation. >> i also want to talk about more the exclusions, specifically 552c1, involving an ongoing law enforcement investigation of which the subject is not aware of. i'm representing an activist named mr. jeffrey lebeaux in a foia case in d.c. he was participating in a protest in the imf when somebody, not him, but somebody else in the group threw an object out the window of a hotel and broke it. the fbi did an investigation in which they executed a search warrant against -- and searched the home of a photojournalist, who was there, and i represented the photojournalist in a claim under the privacy protection act

against the fbi. and i deposed several of the agents and asked them for information about that were at the protest, and i asked about mr. lebeau, and i was told that the fbi knew about him, that he was a known extremist, and that they couldn't tell me whether he had a crs file or what was in it because there was currently an ongoing law enforcement investigation. when -- i later brought the lawsuit for mr. lebeau, after he had done a foia request and the fbi said they had no response of records. it was fairly apparent that the reason that they were saying that was that they had relied on an exclusion, and so in the administrative appeal, and in the lawsuit, we asserted that the fbi was relying on this exemption, and that it was improperly relying on the

exemption, because c1 requires th unaware of the investigation. he was quite aware of it. i showed him the transcript from the deposition. so he knew thatatn was ongoing, so we challenged the investigation on that ground. the fbi said, well, to do is submit a secret brief to the court, in which we say whether or not there is actually material redacted under, or not redacted but information that they can't even acknowledge under c1, and asked the court to issue an opinion which says if exemption c1 was relied on, then it was proper. if it was not relied on, then there are no documents, and you have no way of really reviewing that, so we run into some of the same problems, that avalon had.

what's a little bit different in this case is that we know pretty early on in the process that they are relying on c1, even though they've never said that to us. so i think as a practice tip, it is helpful to inquire during depositions about what agents know of other subjects or potentially the plaintiff or defendant in your case, and see what you can get, because there are not a lot of situations in which you are going to know that there is an ongoing investigation. i mean some of the other limited circumstances will be if the person was arrested, and -- or there was a subpoena returned or a search warrant returned, and made a part of a publication file, you might know that there's an investigation, and those kinds of things should

trigger to the fbi the person is well an exists, because he was arrested or his house was searched, and -- but this is generally a very difficult area to litigate, because so much of it is done in secrecy. you can't even know what and i think that there is some strong due process arguments that can be made against the fbi asserting its right to submit secret briefs. thanks. >> thank you very much, jeff. our next panelist is kell mcclanahan, executive director and founder of the national security counselors. he received his master of arts in security studies from georgetown university, his juris doctorate from american university washington college of

law, welcome back, and his master's of law from georgetown university in national security law from georgetown university. drew had mentioned, you know, how tough it is to go at the fbi, you know, the only thing worse is the cia, and that's what kel is here to talk about, some of the national security counselors cases against the cia. >> well i can second that, having gone against the fbi and the cia. the fbi actually has the exclusions. the cia doesn't even have exclusions, so they have to make up new and exciting exemptions to withhold information. and the way they do it -- a while back -- i'll be talking about really four cases that are really just one big case that we'll split into different cases, short, for thematic reasons and so we wouldn't have

a 100-page complaint, but the four cases are all attacking specific policies. see, most of foia litigation is, i requested records from you. you did not give them to me. give them to me. and they're request specific. but a while back, and in the '80s, i believe, there was a case called payne enterprises versus secretary of the navy, and in payne, the judge actually came down and the circuit judge actually came down and said that you can use foia policies, patterns or practices that are in violation of foia, and it was along of the roe v. wade standard of capable of repetition yet evading review, because what

would happen would b -- in payn foia officials would deny information, and the people reversed on appeal and then file another request and the analyst would deny the information, they'd appeal and it would be reversed oppthis over and over again, and so the idea was, if you have evidence that an agency something that is against foia, the court has unlimited equitable authority to stop that, and so a client of mine, greg mudded, who was an author in the uk, was writing a book about the u.s. and uk's involvement in the development of the iraqi oil law, for how oil contracts would

whatnot. and one of the things that he ran into at the state department was that, even though the 2007 law open government act said, upon shall give requesters estimated dates of completion. the state department was saying we are sorry, we will not give you an estimated date of completion and they said that very consistently and they said it to him and they said it to us and they said it to some other colleagues that i had sort of sent out feeler requests for status updates. and so we filed a lawsuit for the records, and we stuck a pattern of practice complaint in there under payne saying, and overturn the pattern of practice of refusing to give estimated date of completion, and that was mudded versus central command. that's the opinion that y'all have why yo

have in your packet. for the first time since payne, payne was a big brouhaha and then everybody i think forgot about it and there were three or four cases that ever mentioned it between it coming down and mudded, and in muddit, judge baryl hel, another one of the new barack obama appointees said yes, this is something that is a policy that would violate foia, and so it can be sued on the government had actually argued, because he wasn't harmed, because payne had to do with exemptions, and this had nothing to do with exemptions,' not litigable. she said no any violation of foia that say consistent violation can be sued under payne as long as you can be proved there is a policy. so the state department reversed their policy and instituted a new policy that said we will now

give estimated dates of completion. and so that was really the beginning of what i would say, you know, what i'll call the cia cases, the four cases that i alluded to that mike mentioned, which were a massive challenge against 16 policyies, eight of which were in blatant violation of clearly established statutes or case law, and eight of which were just bad policies that we thought were illegal but there was no direct case law in point on them. and i'll just run down them really quickly so you have an idea of what we're talking about. but before i get into listing them, though, the reason that we chose the cia, i kee