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How the FBI is treating my Freedom of Info requests
As you read this thread in which I’m requesting information (that I own) from the FBI, keep in mind that Freedom of Information (FOI) law requires the government to turn over the requested information within about 30 days. Years later:
From: Sharyl Attkisson
Subject: FBI FOIA Request
Under FOIA and Privacy Act law, I request access to the following:
My FBI file.
Specifically, this includes—but isn’t limited to—material regarding my required FBI background checks to obtain a White House “hard” press pass, which I obtained as a CBS News reporter starting in 1995 in order to have access to the White House and travel with presidents and first ladies. (1)
Attached, please find my identity statement as well as some examples of the travel I took part in using my FBI-approved White House “hard” pass.
On Aug 9, 2017, at 6:31 PM, Sharyl Attkisson wrote:
Your latest denial of the appeal to my lack of FOI response again fails to lawfully address the issues at hand: Where is my FBI file and why is it being withheld in its entirety without the requisite reason being provided (i.e. national security)?
You claim that I appear to be particularly interested in an “investigatory file” but that none exists. I am simply interested in receiving my FBI file. We know one exists because, as I have repeatedly stated and proven in writing, there was, at a mimimum, an FBI background check conducted on me in order for me to receive my White House press pass. So, as I have repeatedly explained, there should be at the very least an application (the one I filled out) as well as the resulting FBI background check. Unless and until these known materials are provided, we know that a proper and lawful response has not been made and it becomes reasonable to suspect that unknown materials are being improperly withheld, as well. In addition, I was separately informed by an administration official in the 1990s that I had an FBI file.
Additionally, the FBI acknowledged the existence and withholding of my FBI file in its November 14, 2016 letter. The FBI stated, “The records you currently seek” (my FBI file) “have already been properly reviewed and withheld.” See attachment below.
There can be no lawful justification for the FBI to withhold my FBI file in full. For example, at the very least, my application for a White House press pass is responsive to this request and cannot be subject to redactions or exemptions.
Furthermore, the FBI seems to rely upon a separate, inadequate search it conducted in 2013 as supposed proof that it conducted a proper search. However, I filed the FOI at issue more than 3 years later (in 2016). Therefore, this FOI request required a new search for records generated after the December 2013 search.
This has all been explained at length in my repeated FOI requests and appeals, so I don’t think it’s a case of any component of the Department of Justice failing to understand; it’s apparently a matter of forces coordinating to be unresponsive.
If it’s true that the FBI cannot find my file or the information referenced above, the FBI should respond with an explanation such as: “We have lost your file”; “Your file has apparently been destroyed,” “We failed to retain your application for a hard pass and never did the background check even though we said we did and you were issued a hard pass,” or whatever the case may be. On top of that, if this is the case, there should be an investigation within the FBI as to how my materials became lost or destroyed, or how I was issued a White House pass without the requisite FBI background check. The FBI is custodian of important and sensitive information about Americans like me, and if it has been mishandled, it should be in the interest of the Justice Department to find out how and why.
But for all to pretend my request has been lawfully fulfilled is disingenuous at best.
I left you a phone message today and look forward to talking further at your earliest convenience in hopes we can advance this request.
On Aug 10, 2017, at 8:45 AM, O’Neill, Sean (OIP) firstname.lastname@example.org> wrote:
Thanks for clarifying. The FBI conducted a new search, but all it found was the few pages processed for you back in 2013 and the civil litigation file regarding the FOIA request that you litigated against the FBI. There was no other investigatory file located in the search. If you have any information that would tend to show that other records should exist, we would be happy to consider it. Thanks.
From: Sharyl Attkisson Sent: Thursday, August 10, 2017 8:54 AM To: O’Neill, Sean (OIP) email@example.comSubject: Fwd: FBI FOIA Request
See the documentation below that proves one has to go through FBI backgrounder to get a White House hard pass. I was told this at the time I applied; I filled out an application authorizing the background check and providing my personal info (as do all reporters who receive a hard pass); I was told my FBI backgrounder was completed; I was issued the pass. There’s no dispute on this point, it’s common knowledge and practice in the White House press corps. At a minimum, there should be a record of this. I think there are additional records but the fact that we know there are *some* they haven’t turned over indicates the search wasn’t in good faith or that there are unexplained records missing.
On Aug 10, 2017, at 9:15 AM, O’Neill, Sean (OIP) <XXXX@usdoj.gov wrote:
Most of the time when a non-DOJ agency wants a “background” check done for someone, there is no FBI investigatory file opened, the FBI just performs what is known as a “name check.” That involves the FBI conducting a search of its own databases as well as other law enforcement databases. The FBI then informs the requesting agency what the result was. I don’t know if a document is generated by that process, but I have never seen one. Generally any documentation is at the other agency. For instance, when OPM processes a new federal employee, one of the forms indicates whether or not the FBI’s name check found anything negative about the person. Here is a website that talks about the process. If there is no FBI investigatory file, it is quite likely that a name check is all that was done for your background check.
On Aug 10, 2017, at 9:22 AM, Sharyl Attkisson wrote:
With respect, I believe that’s a mistaken assumption on your part and this is too important to assume away.
It’s possible they only do a name check for a “daily” pass but the hard pass is a more onerous procedure that takes several weeks.
Our own companies explain this to us, that we are submitting to a detailed FBI check when we apply, and the White House makes it clear as well.
For example, here is a quote from a White House spokesman at the link I sent you:
to obtain a hard pass “you have to go through a detailed FBI background check.”
So there should be a record of mine. I went through more than one.
It doesn’t seem credible to me that the FBI would do a background check (of any sort), especially the detailed ones required for the White House hard passes, and not maintain any record of the results — that would seem contrary to what the FBI does.
I also have two good sources that indicate I have a file.
In fact, my FBI file currently has a designation on it that means only certain people in FBI/govt can access it, and that a record of them looking at it will be maintained.
On Aug 12, 2017, at 9:21 PM, Sharyl Attkisson wrote:
Just following up:
If the FBI thinks a third party agency might have relevant records, aren’t they required to refer me/the FOI request to that agency for those records? (I thought of this when you hypothesized that FBI does name clearances but you haven’t seen that they have maintained the records from them.) Also, there was a similar suggestion from a source of mine who has knowledge of the process who said the following:
“It is a bit ridiculous to say that you do not have a file. You went
through the clearance efforts for the White House… I am wondering if they are
playing a game of we (the FBI) do not have an official file because we
are using one put together or stored at (name another agency here). Kind
of like a game of 3 card monte on who actually holds the file.”
Therefore, it seems worth asking the FBI what process it follows in forwarding relevant documents to other entities. We know they did checks since I had several White House “hard” passes requiring detailed FBI background check. Where does the information from these checks reside if not in an FBI file?
It seems at the least the FBI should be asked to clarify a few things:
Is the FBI claiming it destroys all records from the detailed background checks it conducts for White House press “hard” passes?
Even if the FBI forwards the information to another agency, the documents generated during the process should reside in FBI computers and hard files unless somebody destroyed them. For example, the FBI surely should have records of the application/request for a check and records that indicate who within the agency conducted the background check(s), when they did them, and how they did them. This is pretty basic.
Also, as they seem to be claiming they have no such records, they should be asked to disclose what they do with the application and records generated for the White House hard pass detailed background checks. (Are they saying they destroy all documents and records immediately the day the press background checks are completed? Are they saying they keep no record of the original application, the people they interviewed for the check(s), the entities contacted, the date(s), name(s) of agents who conducted the check(s) or even the authorities to whom the information was routed? This doesn’t seem to make any sense, not only for investigative reasons but especially since records retention policies and laws seem to require this material be preserved.)
The FBI also should be asked to whom they routed any of the background check information once approved, since that entity may have files documents to the FOIA request.
On Aug 14, 2017, at 7:30 AM, O’Neill, Sean (OIP) firstname.lastname@example.org wrote:
If an agency finds documents responsive to a FOIA request that originated with another agency it is obligated to forward those documents to the other agency for processing. The FBI did not find any documents from another agency here.
On Aug 14, 2017, at 8:56 AM, Sharyl Attkisson wrote:
So we are back to the original conundrum. What can we do to get the answers ? Did they destroy the records if not keep them? Is that their practice with all detailed background checks for White House hard passes? If not? Where are my records ?
Aug. 16, 2:52PM, Sharyl Attkisson wrote:
Here’s some additional information to help you locate outstanding responsive documents, and hopefully get at the heart of why they haven’t been provided to date.
The FBI previously denied having any responsive documents to other FOI requests I made, then acknowledged having several thousand pages, then withheld them for several years.
The FBI initially denied having any responsive documents regarding a search of my name, but after various appeals and pursuits, turned over several pages that, importantly, indicate there are still more documents they’ve withheld without explanation.
The FBI continues to withhold known documents, and so it is reasonable to be concerned it may also be withholding unknown documents.
According to an FBI email sent on June 14, 2013 (excerpted below), “Cywatch coordinated with CyOS to confirm the reporting” on my computer intrusions. Where are the documents regarding the steps taken to confirm? In the same email, the FBI states: “WFO contacted CBS News, and CBS News confirmed the compromise of Attkisson’s computer.”Where are the documents indicating who contacted whom, when, and where are the notes from the discussion which are required to be maintained? The same email indicates there was to be followup after CBS Washington “discussed internally with CBS New York.”
A separate FBI document Dated June 20, 2013 (below) indicates the FBI listed me as “Victim” in a computer intrusion case: “Victimized from 12/01/2012 to 6/14/2013.” According to the FBI, my case is under “Case ID# 288-HQ-C2570709,” but no case file documents have been produced.
Another category of withheld documents is my FBI file referred to in the FBI’s Nov. 14, 2016 letter to me (below). It states that, “The record you currently seek [FBI file through Aug. 2016] have already been properly reviewed and withheld.”
A fourth known category of withheld documents refers to the July 9, 2013 letter from Sen. Tom Coburn to Attorney General Eric Holder (below) instructing Holder answer a series of questions regarding my computer intrusions. These questions required the DOJ to consult with FBI to obtain answers. Neither the DOJ nor FBI have provided records or documents to me regarding this matter. Where are the documents involving Holder’s investigation and reply to Coburn (in which he did not directly answer the questions but implied he consulted with appropriate entities, including FBI).
A fifth category of withheld documents refers to Sen. Coburn’s July 9, 2013 letter directing DOJ Inspector General Horowitz to “conduct a thorough and exhaustive investigation whether any personnel within the Department of Justice may have been aware of or involved in any way with the breach and/or monitoring of Ms. Attkisson’s computers. This investigation must encompass all email transmissions of Department of Justice personnel beginning in August of 2011.” This direction necessitates communication with the FBI about me and my case. Where are these documents? (More broadly, I have separately FOI’d the DOJ IG, and they have also failed to turn over responsive documents.)
A sixth category of unproduced, responsive documents are those surrounding the “detailed FBI background checks” necessary for me to obtain my White House “hard” press passes to access the President and First Lady, Air Force One, the White House and various trips. (This is different from a more basic “name check” or daily press pass approval.) The FBI should be able to locate my applications, tell us who conducted the checks, when; and provide the results, as well as information on to whom the results were forwarded so that I could be issued the passes.
“For a hard pass…you have to regularly cover the White House, you have to apply for it, you have to go through a detailed FBI background check.”
…the Comey-led FBI told us last October that it had “no” records responsive to our request – now states that “records potentially responsive to your request may exist.”
In summary, the evidence shows that, at a minimum, the FBI has failed to conduct an effective search and/or provide responsive documents regarding:
My detailed FBI background checks.
My applications for the White House hard passes.
Contacts the FBI says WFO made with CBS News regarding my computer intrusions.
References about my computer intrusion case within FBI Case ID# 288-HQ-C2570709.
My FBI file “withheld” per the FBI’s Nov. 14, 2016 letter.
Sen. Coburn’s July 9, 2013 requests of DOJ and DOJ IG regarding my computer intrusions.
It does a disservice to FOI law to simply accept the FBI’s insistences that it has conducted acceptable searches, especially when the agency hasn’t been asked to explain what happened to the above documents, if it claims it can’t find them.
Thank you for your prompt attention regarding this matter.
(As of this publication… *crickets*)
Buy the New York Times bestseller, “The Smear,” anywhere.
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