When it comes to the federal government's rationale for not producing information to answer inquiries citing the Freedom of Information Act, the recent case of Davis v. Department of Justice falls under the "you gotta be kidding" category.
So, let's dig in a bit. The case centered around four audiotapes recorded more than 25 years ago as part of an FBI investigation in Louisiana. An author, who is the plaintiff in the case, sought release of the tapes under the Freedom of Information Act, or FOIA, as it's more generally known. There were two apparent speakers on the tapes. One was a "prominent individual" who was the subject of the FBI investigation. The other was an undercover informant.
The Freedom of Information Act requires the federal government to produce information upon request with respect to its activities unless the requested information falls within one or more exemptions explicitly provided in the statute.
The agency also took the position that it could not conclude whether the speakers were alive or dead by referencing a Social Security database.
One exemption allows law enforcement to refuse to release records if that could reasonably be expected to constitute an unwarranted invasion of personal privacy. Under relevant case law, an agency deciding whether a particular release of information constitutes an unwarranted invasion of privacy must balance the privacy interest at stake against the public interest in disclosure.
The FBI withheld production of the requested tapes, arguing that it had not been able to determine whether the speakers on the tapes were still living, and thus were entitled to have their privacy protected. FOIA case law holds that a person no longer has the same privacy rights upon his or her death.
In its judgment, the federal appellate court in Washington, D.C., determined that the sole issue on appeal in the case was whether the FBI had undertaken "reasonable steps" to determine whether the speakers are now dead. In that case, the court said, even the privacy interests weighing against release would be diminished.
The FBI could not figure out whether the speakers were over 100 years old--and thus presumed dead under FBI practice--because neither had mentioned their birth dates during conversations that were recorded surreptitiously.
The agency also took the position that it could not conclude whether the speakers were alive or dead by referencing a Social Security database. The reason? The speakers did not state their Social Security numbers during the recorded conversations.
Furthermore, the FBI failed to search its own files for the speakers' birth dates or Social Security numbers, simply because that is not its standard practice.
Finally, the FBI did not try any other methods of finding out if the speakers were alive or dead, such as conducting Google searches.
The appellate court not surprisingly determined that the FBI had not made reasonable efforts to ascertain whether the two speakers, on whose behalf it invoked a FOIA privacy exemption, were alive. What's more, the court said it had serious questions as to whether the FBI provided a reasonable response to the request.
The case was remanded back to the trial court. The government bears the burden of invoking exemptions when refusing to produce information pursuant to FOIA requests. Hopefully the trial court will order the FBI to do proper due diligence in this case, consistent with the appellate court ruling.
The words of the appellate court ring oh so true:
"Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a 'reasonable alternative' for finding out whether a prominent person is dead is to use Google (or any other search engine), to find a report of that person's death."
Biography Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
"or finding out whether a prominent person is dead is to use Google (or any other search engine), to find a report of that persons death."
How many John Q Public do you think there could be out there? Just because a search engine identies a site who has reported the death of a person: a) doesn't mean it's accurate. )do you believe everything that's posted n the web?) b) It's actually the person your looking for.
I know for a fact that there are three people in my city of 300K that have the same exact name. Two of us actually work for the same shipping company, which by the way caused the IT guys a lot of confusion when issuing email addresses.
"Your Honor, we didn't mean to break the law, Google said he was dead, honest.", won't fly in a court law.
It would give them somewhere to start, assuming the FBI was interested in answering the question. Of course it's more likely they simply didn't want to comply with the FOIA request and pulled the first canned response they could find. Remember, this is the era of the Bush Dictatorship, where everything about the government is secret and the public is allowed no privacy whatsoever (question: how many laptops containing personal information like names, addresses and SSN's has the government "lost" already?)
It's about to get worse - the senate is considering a bill that basically amounts to a blank check for the current dictatorship to stomp on the rights of everyone, "terrorist" and "american" alike. Wire taps, terrorist tribunals, secret prisons - kiss your beloved constitution goodbye!
Don't expect to be able to change anything at the polls in November either - they've been rigging elections since 2000 and have become very good at it. Republican votes always seem to work, but Democratic votes always get snarled up in some snafu or another (see <<a class="jive-link-external" href="http://www.washingtonpost.com/wp-dyn/" target="_newWindow">http://www.washingtonpost.com/wp-dyn/</a> content/article/2006/09/12/AR2006091200535_3.html? nav=rss_print/asection> for the latest example; in particular note the following comments -1. "But when the registered Democrat put his card into the voting machine, a Republican ballot appeared on the screen ... Other voters were having the same problem, he said, and complained to election officials, who didn't know how to fix the machines" -2. "... a report in June by Common Cause concluded that they (electronic voting machines) "are highly vulnerable to machine malfunction and human manipulation." It also found that Maryland was one of 17 states with voting systems that are at "high risk" because their machines don't have a paper ballot backup system").
Yes, there could be cases where something like that would happen, but I think the jist of the statement was. "You could've at least done this simple task, that most people do twenty times a day."
The equivalent of saying, "You could've just looked out the window to see if it's raining, rather than saying you don't know what the weather's like." It may not be the most accurate method (google) to determine a person's death, but in the case (in context) it seems that the FBI could have done something as minimal as such.
So whay can't the FBI? Because they don't want to make an effort. They are so locked-up in their microcosm of NIH (not invented here) and arrogance that their determination is final. My father was an FBI agent under J. Edgar Hoover so I know what kind of B$ they have to go through. FBI agents don't get a chance to think independently as that is mutiny and will hamper any agents chances of advancement. As with most Federal agencies it is such a vertical management style that by the time anybody get the permission to perform any activity not officially "sanctioned" by that agency, it's too late (9/11 is a prime example). Once they get past the "sanctions" then they have to worry about their superiors thinking that they are being upstaged so the agent has to massage it into their superior's minds that it was their idea. As far as the information itself, any genealogist worth their salt could dig up these individuals in a short amount of time.
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How many John Q Public do you think there could be out there? Just because a search engine identies a site who has reported the death of a person:
a) doesn't mean it's accurate. )do you believe everything that's posted n the web?)
b) It's actually the person your looking for.
I know for a fact that there are three people in my city of 300K that have the same exact name. Two of us actually work for the same shipping company, which by the way caused the IT guys a lot of confusion when issuing email addresses.
"Your Honor, we didn't mean to break the law, Google said he was dead, honest.", won't fly in a court law.
How about a does of common sense.
interested in answering the question. Of course it's more likely
they simply didn't want to comply with the FOIA request and
pulled the first canned response they could find. Remember, this
is the era of the Bush Dictatorship, where everything about the
government is secret and the public is allowed no privacy
whatsoever (question: how many laptops containing personal
information like names, addresses and SSN's has the
government "lost" already?)
It's about to get worse - the senate is considering a bill that
basically amounts to a blank check for the current dictatorship
to stomp on the rights of everyone, "terrorist" and "american"
alike. Wire taps, terrorist tribunals, secret prisons - kiss your
beloved constitution goodbye!
Don't expect to be able to change anything at the polls in
November either - they've been rigging elections since 2000 and
have become very good at it. Republican votes always seem to
work, but Democratic votes always get snarled up in some snafu
or another (see <<a class="jive-link-external" href="http://www.washingtonpost.com/wp-dyn/" target="_newWindow">http://www.washingtonpost.com/wp-dyn/</a>
content/article/2006/09/12/AR2006091200535_3.html?
nav=rss_print/asection> for the latest example; in particular
note the following comments -1. "But when the registered
Democrat put his card into the voting machine, a Republican
ballot appeared on the screen ... Other voters were having the
same problem, he said, and complained to election officials, who
didn't know how to fix the machines" -2. "... a report in June by
Common Cause concluded that they (electronic voting machines)
"are highly vulnerable to machine malfunction and human
manipulation." It also found that Maryland was one of 17 states
with voting systems that are at "high risk" because their
machines don't have a paper ballot backup system").
Feeling "free" yet? IMPEACH THE SON OF A BUSH!!!
The equivalent of saying, "You could've just looked out the window to see if it's raining, rather than saying you don't know what the weather's like." It may not be the most accurate method (google) to determine a person's death, but in the case (in context) it seems that the FBI could have done something as minimal as such.
Because they don't want to make an effort.
They are so locked-up in their microcosm of NIH (not invented here) and arrogance that their determination is final.
My father was an FBI agent under J. Edgar Hoover so I know what kind of B$ they have to go through.
FBI agents don't get a chance to think independently as that is mutiny and will hamper any agents chances of advancement.
As with most Federal agencies it is such a vertical management style that by the time anybody get the permission to perform any activity not officially "sanctioned" by that agency, it's too late (9/11 is a prime example).
Once they get past the "sanctions" then they have to worry about their superiors thinking that they are being upstaged so the agent has to massage it into their superior's minds that it was their idea.
As far as the information itself, any genealogist worth their salt could dig up these individuals in a short amount of time.