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

* DXer asks: why is Ivins’ polygraph not disclosable under FOIA?

Posted by Lew Weinstein on February 23, 2014

The FBI has no case against this man ... but meanwhile he is dead and the real perpetrators are still out there.

The FBI has no case against this man … but meanwhile he is dead and the real perpetrators are still out there.

DXer asks:

why is Ivins’ polygraph is not disclosable under FOIA?

Currently, it is under seal. Dr. Ivins has passed away. The case is closed. Just because it would not be admissible in court is not justification for its withholding under FOIA.

The FBI publicly relied on the polygraphs — both of which Dr. Ivins passed — as part of its “science” in publicly accusing him The FBI should produce it to GAO and it should be disclosed by DOJ under FOIA.

Advertisements

7 Responses to “* DXer asks: why is Ivins’ polygraph not disclosable under FOIA?”

  1. DXer said

    Dr. Ivins passed his polygraphs. The exculpatory evidence relating to the examination was withheld. Instead, the FBI took the exculpatory evidence that was withheld and reinterpreted it to reassert the FBI’s conclusion that Dr. Ivins was lying. It’s reinterpretation was not based on sound science.

  2. DXer said

    A. So as a side, I was — I had two lie detector tests, one so that I could process samples for the FBI and one so that I could —
    Q. You had to take a lie detector test, too?
    A. Yes. So I did that. They asked me to grow spores on various types of culture media to use as reference stocks to compare to what was used in the attacks. ( p. 48)

  3. richard rowley said

    Wow, that’s great that this came up again. I’ve been reviewing aspects of the case and was up to the polygraphs and

    1) I found material on that first polygraph test, administered in February of 2002, as part of a wider use of polygraphs to make sure that the Amerithrax perp wasn’t working at USAMRIID (though whether only anthrax researchers had to take it isn’t clear). There’s an interview with Task Force head Ed Montooth where he goes into it.

    2) I’ve found nothing (!) on that second polygraph: don’t know the month or even the year, though it must have been in the 2005-8 period. Curiously, Montooth mentions it not at all in the above-mentioned interview.

    • DXer said

      Good catch/point. I don’t consider the WND article (see history commons) saying there was two — billed as an “exclusive” — sufficient authority given the absence of any detail.

      And note the 2008 article in the thorough WSJ reporting just one, the one in February 2002 you mentioned.

      I went to find Paul Kemp on YouTube, Part 2, where I vaguely recollect he mentioned it. But I didn’t find the video.

      And so let’s assume there was only one absent better evidence. Any FOIA request could be worded in a way to request two if there two.

  4. DXer said

    Here is some DOJ guidance and legal precedent:

    http://www.justice.gov/oip/foia_guide09/exemption7e.pdf

    Exemption 7(E) of the Freedom of Information Act affords protection to all law enforcement information that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”1

    Techniques and Procedures

    Exemption 7(E) is comprised of two distinct clauses. The first clause permits the withholding of “records or information compiled for law enforcement purposes . . . [that] would disclosetechniquesandproceduresforlawenforcementinvestigationsorprosecutions.”2 This clause is phrased in such a way so as to not require a showing of any particular determination of harm — or risk of circumvention of law — that would be caused by disclosure of the records or information within its coverage.3

    The courts, however, are not in complete harmony with regard to the breadth of the application of the phrase “disclosure could reasonably be expected to risk circumvention of the law” that is found in the second clause of Exemption 7(E).4 Some courts have found this phrase to be applicable to the first clause as well as the second clause of Exemption 7(E).5 Other courts, while not specifically stating that “risk of circumvention” must be demonstrated under the first clause of Exemption 7(E), have taken cognizance of affirmative showings of this standard made by agencies in the context of the first clause’s protection for “techniques and procedures.”6 Still others have found that no showing of “risk of circumvention” is necessary for the first clause.7 Indeed, a number of courts have found that the first clause is designed to provide “categorical” protection to law enforcement techniques and procedures.8 (For a further discussion of the second clause of Exemption 7(E), see Exemption 7(E), Guidelines for Law Enforcement Investigations and Prosecutions, below.) Notwithstanding the lack of agreement with regard to the application of Exemption 7(E)’s “circumvention” requirement, in order for the first clause of the exemption to apply courts have uniformly required that the technique or procedure at issue ordinarily must not be well known to the public.9 Accordingly, techniques such as “wiretaps,”10 the “use of post office boxes,”11 pretext telephone calls,12 and “planting transponders on aircraft suspected of smuggling”13 have been denied protection under Exemption 7(E) when courts have found them to be generally known to the public.

    However, even records pertaining to commonly known procedures have been protected from disclosure when “‘the circumstances of their usefulness . . . may not be widely known,'”14 or their use “‘in concert with other elements of [an] investigation and in their totality directed toward a specific investigative goal constitute a ‘technique’ which merits protection.'”15 Moreover, courts have endorsed the withholding of the details of a wide variety of commonly known procedures — for example, polygraph examinations,16 undercover operations,17 surveillance techniques,18 and bank security measures19 — on the basis that disclosure could reduce or even nullify the effectiveness of such procedures.20 As one court observed, this is especially true “when the method employed is meant to operate clandestinely, unlike [other techniques] that serve their crime-prevention purpose by operating in the open.”21 In this regard, the use of a “Glomar response”22 under Exemption 7(E), has been approved by the courts when disclosing the identity of the subject of a particular law enforcement technique would reveal the circumstances under which that technique has been used.23

    See, e.g., Hale v. DOJ, 973 F.2d 894, 902-03 (10th Cir. 1992) (concluding that disclosure of “polygraph matters” could lessen effectiveness), cert. granted, vacated & remanded on other grounds, 509 U.S. 918 (1993); Piper, 294 F. Supp. 2d at 30 (declaring that polygraph materials were properly withheld because release would reveal sensitive “logistical considerations”); Edmonds v. FBI, 272 F. Supp. 2d 35, 56 (D.D.C. 2003) (deciding that agency’s declaration “convincingly describes how the release of [polygraph] information might create a risk of circumvention of the law”); Shores v. FBI, 185 F. Supp. 2d 77, 85 (D.D.C. 2002) (determining that agency properly withheld polygraph information to preserve effectiveness of polygraph examinations); Blanton v. DOJ, 63 F. Supp. 2d 35, 49-50 (D.D.C. 1999) (finding that disclosing certain polygraph information — e.g., “sequence of questions” — would allow individuals to employ countermeasures), aff’d per curiam, 64 F. App’x 787 (D.C. Cir. 2003). But see Homick v. DOJ, No. 98-00557, slip op. at 14-15, 32 (N.D. Cal. Sept. 16, 2004) (ordering disclosure of details of twenty-year-old polygraph test, including “the type of test given, the number of charts, and the serial number of the polygraph machine,” because “the FBI has provided no statement that the type of machine, test, and number of charts used twenty years ago are the same or similar to those utilized today”), appeal dismissed voluntarily, No. 04-17568 (9th Cir. July 5, 2005).

    I have not pulled these cases yet — which one would want to do before submitting a request. See Gibbs Rule #51.

    NCIS’ Gibbs always got away without taking a polygraph.

    Comment:

    Here, the requestor would not be asking for the type of machine, test, guidance materials etc.

    Requestor would merely be asking for the answers given by Dr. Ivins, who passed away years ago. The polygraph examination was conducted over 10 years ago.

    If it was okay for the DOJ and FBI (incredibly) to take the fact that Dr. Ivins PASSED both of his polygraph examinations — as evidence of his guilt and general sneakiness (!)– why should DOJ and FBI be allowed to withhold those actual examinations?

    At what point does the FBI get challenged on its rationalizations (worthy of an Olympian gymnast) and have to provide the actual underlying document?

    I’m actually only interested in the questions and answers — the DOJ can keep its (IMO) voodoo science secret.

    AUSA Lieber’s and Ed Montooth’s self-serving rationalizations were unpersuasive on their face.

    I would direct any request for Ivins’ polygraph to FBI’s David Hardy unless DOJ Civil James K. indicates he can disclose it.

    I think James at DOJ Civil reasonably might say that the requestor would need to file a motion to have the seal designation lifted by the federal court judge.

    Of course, the fact that the seal designation in some civil litigation does not bear on the DOJ Criminal and FBI’s independent obligation to produce it under FOIA.

    Thus, I would make the request to Mr. Hardy at the FBI.

    • DXer said

      The FBI publicly relied on the polygraphs — both of which Dr. Ivins passed — as part of its “science” in publicly accusing him The FBI should produce it to GAO and it should be disclosed by DOJ under FOIA.

      Jack Urban, Appellant, v. United States of America; Kansas Bureau of Investigation, Appellees.

      No. 95-2386

      UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

      72 F.3d 94; 1995 U.S. App. LEXIS 36652

      October 6, 1995, Submitted
      December 27, 1995, Filed

      PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of South Dakota. District No. CIV 95-5027. Honorable Richard Battey, District Judge.

      CASE SUMMARY

      PROCEDURAL POSTURE: Appellant inmate challenged an order of the United States District Court for the District of South Dakota, which dismissed his action to enforce a Freedom of Information Act (FOIA) request for the results of his polygraph test and the polygrapher’s resume. The district court dismissed the complaint, prior to service, because it held that nonexistent records were impossible to produce.

      OVERVIEW: The Department of Justice Office of Information and Privacy rejected the inmate’s appeal of the U.S. Attorney’s denial of his request for his records on the ground that appeals could only be taken from denials of access to records which existed and could be located in Department of Justice files. The district court dismissed the inmate’s subsequent claim as moot, without requiring service on defendant government. The court reversed the decision and held that in FOIA cases, mootness occurred when requested documents had been produced. That did not occur. Instead, the government claimed it could not locate the documents. The FOIA obligated the government to produce documents within its possession or control. When the question was whether a requested document existed, or was outside the government’s possession or control, the FOIA action was not moot, and dismissal prior to service was not appropriate. The government’s affidavit stating that the documents were not produced because they did not exist in the files of the United States Attorney’s office was inadequate. The documents could have been in the files of the Kansas Bureau of Investigation, which administered the tests.

      OUTCOME: The district court’s dismissal of the inmate’s action to enforce his Freedom of Information Act (FOIA) complaint, prior to service, was reversed.

      CORE TERMS: requested documents, test results, polygraph test, forwarded, moot

      LexisNexis® Headnotes

      Administrative Law > Governmental Information > Freedom of Information > General Overview
      Constitutional Law > The Judiciary > Case or Controversy > Mootness > General Overview
      HN1Go to the description of this Headnote. In Freedom of Information Act cases, mootness occurs when requested documents have already been produced.

      Administrative Law > Governmental Information > Freedom of Information > General Overview
      Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Free Press > General Overview
      HN2Go to the description of this Headnote. The Freedom of Information Act (FOIA) obligates the government to produce documents within its possession or control.When a government agency claims that it does not possess or control a requested document, the agency must show it fully discharged its statutory obligations by conducting a search reasonably calculated to uncover all relevant documents.Thus, when the question is whether a requested document exists, or is outside the government’s possession or control, a FOIA action is not moot, and dismissal prior to service will almost never be appropriate.

      COUNSEL: Appellant was not represented by counsel.

      Counsel who represented the appellee was Bonnie P. Ulrich, Assistant U.S. Attorney, of Sioux Falls, South Dakota.

      JUDGES: Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

      OPINION BY: LOKEN

      OPINION
      [*94] LOKEN, Circuit Judge.
      South Dakota inmate Jack Urban appeals the district court’s dismissal of his action to enforce a Freedom of Information Act (FOIA) request. The court dismissed Urban’s complaint, prior to service, because “nonexistent records are impossible to produce.” At least some of the requested materials almost certainly exist -the question is [*95] whether they are in the possession or control of the United States Department of Justice. Because the government has not met its burden to demonstrate that it has complied with the statute, see Miller v. United States Dep’t of State, 779 F.2d 1378, 1382-83 (8th Cir. 1985), we reverse.
      Urban took a polygraph test in February 1994 as part of a plea agreement with the United States Attorney for the District of Kansas. The Kansas Bureau of Investigation (KBI) administered the test and reported to the U.S. Attorney that the test results indicated truthful cooperation with the government. In July 1994, Urban informally asked KBI for information and documents relating to [**2] the test results. KBI forwarded Urban’s request to the U.S. Attorney, who wrote Urban’s attorney advising “the materials he requested will not be forthcoming.”
      Urban then sent a FOIA letter to the U.S. Attorney requesting “the results of my polygraph test” and “the polygrapher’s resume.” The U.S. Attorney did not answer this or a follow-up letter but instead forwarded the FOIA request to the Executive Office for the United States Attorneys. That Office responded to Urban that a search of the U.S. Attorney’s office “has revealed no records.” The Department of Justice Office of Information and Privacy rejected Urban’s subsequent appeal on the ground that “appeals can only be taken from denials of access to records which exist and can be located in Department of Justice files.” Acting pro se, Urban then commenced this action under FOIA, 5 U.S.C. §§ 552 et seq., which the district court dismissed as moot, without requiring service on the government.
      HN1Go to this Headnote in the case.”In FOIA cases, mootness occurs when requested documents have already been produced.” In re Wade, 969 F.2d 241, 248 (7th Cir. 1992). That has not occurred in this case. Instead, the government claims it cannot locate the requested [**3] documents. HN2Go to this Headnote in the case.FOIA obligates the government to produce documents within its “possession or control.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980). When a government agency claims that it does not possess or control a requested document, the agency must show it fully discharged its statutory obligations by “conducting a search reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C. Cir. 1983), followed in Miller, 779 F.2d at 1382. Thus, when the question is whether a requested document exists, or is outside the government’s possession or control, an FOIA action is not moot, and dismissal prior to service will almost never be appropriate.
      In this case, the actions of KBI strongly suggest that one or more requested documents exist and are within the possession or control of the U.S. Attorney for the District of Kansas. In response to our order to show cause, the responsible Assistant U.S. Attorney submitted an affidavit stating that he “did not produce the requested documentation because it did not exist in the files of the United States Attorney’s office.” That [**4] is an inadequate answer. Urban has now spent nearly eighteen months seeking a copy of seemingly innocuous test results. His early requests got no response or a cryptic brush off. He has never been told why he is not entitled to the documents. And his attempt to invoke FOIA, a statute intended to foster greater access to government records, has instead fostered more paper shuffling and lame excuses.
      There may be a legitimate reason why Urban is not entitled to the materials he requests, but none appears in this record. Accordingly, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion, including, if necessary, an evidentiary hearing at which the responsible Assistant U.S. Attorney can testify as to whether the Department of Justice has possession or control of one or more of the requested documents.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: