CASE CLOSED … what really happened in the 2001 anthrax attacks?

* DXer to DOJ FOIA Attorney Kovakas

Posted by Lew Weinstein on June 11, 2011



DXer to DOJ FOIA Attorney Kovakas … 

“I have emailed the DOJ attorney confirming that DOJ is not prioritizing the requests.”


Attorney Kovakas,

Am I right that my FOIA for all FOIAs was not expedited? Amerithrax is subject to articles daily, and now a new book. Meanwhile, Zawahiri is promising to attack.

Does DOJ notify of a decision not to expedite or does the requestor just infer by DOJ’s delay in responding?

Given that the FOIA for all FOIAs was a simple computer database search taking a couple minutes, I assume it was not expedited. I had suggested the Al Qaeda anthrax threat poses a matter of life and death and thus a request relating to the subject warranted priority.

Am I right that these requests are not being treated as priority? For example, in April __________ had asked for the September 17, 2001 to show it conflicted with the DOJ’s timeline under its Ivins Theory.  (It was not even assigned a number until this past week when he wrote again.)  USAMRC FOIA, which responds on a priority basis, concluded that AUSA Rachel Lieber was mistaken that it was written by Dr. Ivins on his work computer — and the implication is that it was written on his home computer and may provide an alibi that defeats the FBI’s “Ivins Theory.”  At the very least, it will contribute to the timeline for the day of the anthrax mailings.




3 Responses to “* DXer to DOJ FOIA Attorney Kovakas”

  1. DXer said

    If bloggers demonstrate a commitment to make the FOIA responses widely available on an issue of public interest — or demonstrate an ability to generate a story in the relevant media — they are entitled to a fee waiver under this 2010 District of Columbia federal court precedent. Some bloggers, like Anonymous and Ken Dillon, do excellent work in seeking material that is potentially very important. For example, I believe it was only through Anonymous’ efforts that even the FBI’s own experts at Sandia first saw the AFIP data that had been withheld. The FBI withheld highly relevant data from its own experts.

    Clemente v. FBI, No. 08-1252, 2010 WL 3832047 (D.D.C. Sept. 28, 2010) (Friedman, J.). The court concludes that the FBI erred in denying plaintiff’s request for fee waiver and, instead, finds that “the information that [plaintiff] seeks is likely to contribute to the public’s understanding of the FBI’s activities, and there is no reason to believe that her interests are primarily, if at all, commercial.” First, the court finds that “the public has a considerable interest in knowing the extent to which the FBI countenances the criminal behavior of its informants.” Second, the court rejects the FBI’s finding that plaintiff’s submission of “merely ‘one self-generated newspaper article'” published in the New York Times was “unpersuasive as evidence of her ability to disseminate information to the public.” To the contrary, the court notes that the “article concerned the very subject matter of [plaintiff’s] FOIA request and appeared in one of the most widely circulated newspapers in the United States” and, therefore, “is sufficient to show [her] ability to convey information about her FOIA request and its results to the public.” The court finds no evidence to support the FBI’s conclusion that plaintiff is pursuing the request “‘in her commercial interest.'” Based on the foregoing, the court determines that plaintiff “is entitled to a waiver of fees under the FOIA.”

    I always request a fee waiver – explaining in the request that I promptly upload the FOIA material (with Lew’s invaluable help). Such distribution is important in maintaining a fee waiver. And for the true lover of documentary evidence, it is always the next or pending FOIA request that is the most important.

    In connection with the DIA’s production of the correspondence of the correspondence from Rauf Ahmad and Ayman Zawahiri, I gave the material to reporters.

    Note that in any event you get 2 hours free search — and so just keep your request simple.

    Suspect and A Setback In Al-Qaeda Anthrax Case

    By Joby Warrick
    Washington Post Staff Writer
    Tuesday, October 31, 2006

    ISI was going to let Washington Post correspondent in Pakistan interview Rauf Ahmad but then backpedaled at the last minute.

    Respectfully, the FOIA supervisor Jim K. was mistaken in denying the request above on the issue of fee waiver due to his perception that the public would not be educated.

    • DXer said

      For noncommercial requests, agencies will not charge for the first two hours of search time or for the first 100 pages of document copying. Agencies also will not charge if the total cost is minimal.

      Indeed, how many requests of your interest will be over 100 pages?

  2. DXer said

    The DOJ FOIA office mentioned that by his count there were as many as 6 protective orders in the Stevens litigaiton.

    A Vaughn Index would specify the grounds for withholding.

    Frankenberry v. FBI, No. 08-1565, 2010 U.S. Dist. LEXIS 35078 (M.D. Pa. Apr. 7, 2010) (Caputo, J.) (adoption in part and rejection in part of Magistrate’s and Recommendation). The court finds that the FBI’s Vaughn index is inadequate. “There is no specific contextual link provided by the agency between the redacted material and the exemption claimed by Defendants. Without more, it is impossible for this Court to engage in a proper de novo review of the exemptions that Defendants seek to use as justification for withholding documents from Plaintiff.” The case is remanded to the magistrate for the purpose of developing a complete factual record.

    Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng’rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.). The court finds that agency’s declarations are inadequate because they merely contain categorical descriptions of the withheld records and the harms that would be occasioned by disclosure. Even when the declarations are taken together with the Vaughn index, “they cannot sustain the Corps’ withholdings.” The Vaughn index “provides some information regarding the withheld records – such as dates and brief descriptions of the records – but it does not describe how the asserted exemptions apply to the withheld documents.” The court holds that the agency must provide supplemental submissions if it wishes to maintain its exemption claims.

    Citizens for Responsibility & Ethics in Wash. v. DHS, No. 08-1046, 2009 WL 2750486 (D.D.C. Sept. 1, 2009) (Bates, J.). The court finds the Vaughn submission to be “vague, conclusory and inadequate,” even when considered in connection with the unredacted portions of the documents. In camera review resolves some, but not all, of those concerns and so further justification is required. For several documents, defendant needs to provide the court with more information, including the documents’ authors, recipients, and role in the agency’s decisionmaking process. Moreover, if DHS wishes to continue to withhold these documents, “[it] must provide more detailed information to demonstrate that it has met FOIA’s ‘segregability’ requirement.”

    Defenders of Wildlife v. U.S. Border Patrol, No. 04-1832, 2009 WL 1620790 (D.D.C. June 11, 2009) (Friedman, J.). Though defendant DHS’s Vaughn index describes each withheld document (and/or the withheld portions) and lists the exemption(s) cited, it fails to include other relevant information, including the originating component, the author, and the recipient. “[D]etails such as these are necessary ‘to enable the court and the opposing party to understand the withheld information in order to address the merits of the claimed exemptions.'” Furthermore, “DHS’s descriptions of the documents withheld and the reasons for withholding them are unduly vague and general.” Additionally, defendant DHS has not provided sufficient justification for its use of exemptions. “An agency’s claims, in affidavits, declarations or a Vaughn index may not ‘merely recite the statutory standards.'”

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