Accused Anarchist Can See More of His FBI File

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By JACK BOUBOUSHIAN
Courthouse News Service
August 8, 2016

(CN) — The FBI must release more documents to a man it identified as an anarchist extremist, the D.C. Circuit ruled, finding that an exemption relied on by the agency didn't apply to all withheld records.

In 2011, Jeffrey Labow learned that an FBI agent had identified him as an anarchist extremist in its investigation of anarchists protesting against the World Bank and International Monetary Fund who vandalized the Washington, D.C. Four Seasons hotel in 2008.

Labow filed a Freedom of Information Act, or FOIA, request with the agency, asking for any records about himself.

The FBI initially denied holding any responsive documents, but after Labow sued, the agency found several hundred pages concerning Labow and released some to him, claiming various exemptions for the rest.

The D.C. Circuit ruled Friday that the FBI incorrectly relied on FOIA Exemption 3 to withhold information associated with a pen register order, a device for monitoring the phone numbers dialed on a telephone line.

"We agree with Labow's reading of the Pen Register Act," Judge Sri Srinivasan said, writing for the three-judge panel. "Exemption 3 of FOIA, as regards the Pen Register Act, primarily authorizes the government to withhold a responsive pen register order itself, not all information that may be contained in or associated with a pen register order."

David Hardy, FBI's chief of records management, testified that the documents withheld from Labow regard the identities of individuals subject to pen registers in this case, but he did not say that the pen register order itself was contained in the responsive documents.

"If the government withheld information contained exclusively in a pen register order, the information would necessarily fall under the Pen Register Act's nondisclosure requirements and thus would be shielded under Exemption 3 (assuming the pen register order remains sealed)," Srinivasan wrote. "But if the government withheld information found in other responsive documents on the ground that a pen register order also contained the same information, the potential applicability of the Pen Register Statute (and hence of Exemption 3) would be far less clear." (Parentheses in original.)

However, the panel affirmed the FBI's withholding of documents based on Exemption 7(d), which protects records that could reasonably be expected to disclose the identity of a confidential source.

"Although Labow correctly observes that the withholdings at issue are contained in a document predating the incident at the Four Seasons, Hardy's explanation of the risks of informing on anarchist groups spoke to the potential dangers posed by anarchist extremists in general, not solely by the particular individuals who planned the Four Seasons attack," Srinivasan said. "And while Labow argues that Hardy's explanations are too general and conclusory, we have credited the FBI's assessment of risks faced by informants even if described in relatively broad strokes."

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