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January 27, 2009

FOIA: Be patient

Convicted marijuana smuggler Eugene A. Fischer filed a Freedom of Information Act request with the FBI in January 1995. In January 2009 -- that is to say, this week -- a federal judge shut the door on Fischer's long-standing request to obtain more documents.

So, yes, FOIA requests can take an excruciatingly long time. But the case Fischer v. Department of Justice, decided in Justice's favor on Monday by U.S. District Judge Ellen Segal Huvall, illustrates some other lessons about FOIA operations beyond their s..l..o..w..n..e..s..s.

Mr. Fischer does have time on his hands. The 68-year-old man, convicted of a non-violent crime, is now serving a life sentence at a federal medium-security prison in North Carolina. He has stated that he was convicted in a trial that was "absurd, out of a Kafka novel."

Lesson One: FOIA is slow. 'Nuff said.

Lesson Two: Clerical errors can mess you up. Fischer sought documents from the FBI concerning his 1988 conviction in Illinois for his involvement in a massive marijuana importing scheme. Fischer submitted his original FOIA request to the FBI's Springfield, Ill. field office. But, as Judge Huvall noted, that office's records were not searched because, "due to an administrative coding error," the agency instead searched FBI headquarters. When officials, under lawsuit pressure, finally got around to searching the right office, they discovered 1,804 pages of documents responsive to Fischer's request.

Lesson Three: Persistence pays. The Justice Department's Office of Information and Privacy originally decided sometime around 1996 to withhold every single page of the material Fischer sought. A decade later, in December 2006, the Office of Information and Privacy reversed itself -- note to self: !!!!! --  and prompted the FBI search.

Lesson Four: Some confidences are assumed. The FBI withheld the name of "a foreign authority" that aided in the investigation of Fischer, though it lacked any direct evidence the agency had made an express promise of confidentiality. Nonetheless, the judge concluded -- and this seems worthy of further exploring -- that "a promise of confidentiality may be inferred" from the nature of the "necessarily close relationship" between the FBI and foreign agency.

Colombia was the country involved in the marijuana smuggling scheme; we can infer, though it is not stated, that a Colombian police or intelligence agency is the authority referred to.

Conclusion: In this case, the judge grants the Justice Department's request for partial summary judgment.

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mike

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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