AMA: How Does the FBI Use File Size to Manipulate FOIA Requests?

Update: Two weeks later and one FOIA Amendment later, the FBI have corrected their website on the track size issue pointed out below.

A few days ago, I received an interesting question through Twitter in response to a letter from the FBI FOIA office, estimating the file for Jimmy Chagra at 65,000 pages and duplication costs barely under $2,000.00. The tweet has been removed since then, but the question came down to “How do they exploit file size to deter FOIA requests?” This is a very good question, especially since the FBI’s FOIA website lists information that is grossly inaccurate.

The very short answer is they use FOIA fees as a deterrent and the large size of files to make it harder to secure their release and to slow down the process. Some of the content of FBI files can also make it seem like there’s lots of filler material, but no more so than any other bureaucratic institution. Before looking at how agencies like the FBI exploit file sizes to inflict a chilling effect on FOIA, it’s important to clarify what an FBI file is, how the FOIA process works and why many of my requests turn up very large page counts.

First, the term “FBI file” can be a bit misleading. Much like your medical file, an FBI file is actually many different records generated over time that have been indexed to a single name or subject. Like medical records, multiple files may be opened for different reasons. With the Bureau the type of file depends on the type of investigation, while in medical records it would depend on the type of doctor. Multiple FBI file numbers may exist for a single individual, depending on the type of file, when it was opened and where it’s housed (HQ, field office, etc.). Despite having different numbers, each of these files will be indexed to the same name. The files themselves are rarely in the form of a report that encompasses the relevant information. Most files are collections of memos, letters, interview transcripts, copies of evidence and open source information (news clippings, book excerpts, etc.) which are transmitted individually and then saved in the file for the individual. As a result, some files can become voluminous.

Second, many of the files that I try to get are quite large. Jimmy Chagra’s file of 65,000 pages is quite a bit, at nearly 10% of the size of the FBI’s file on confidential informants. Before his death, Chagra ran a major drug smuggling operation and had Judge Wood killed (by Charles Harrelson) in the first modern assassination of a federal judge. The cases involving Chagra are complex and important, discussed in the Bluegrass Conspiracy, and it’s not implausible that his file would be as large as it. Many of the files that I request are about extremely notorious and notable subjects, such as senior CIA officers who were arrested for arms trafficking and assisting terrorists. I also tend to request entire files so that I can review them myself, instead of trusting the FOIA offices to locate and release all of the information in a file that I’m interested in.

That said…

There is no doubt that the FBI and other agencies subject to FOIA use the fees associated with these files to attempt to slow down the process and deter requesters. The Bureau has a history of denying fee waivers for files that qualify for them, and of using a file’s size as an excuse to process it more slowly per page than for smaller files. There are also some very important lies on the FBI’s FOIA website about how they handle large requests.

According to the FBI’s FOIA website (archived here):

Requests are divided into three different queues depending on the number of pages sought. Smaller requests are those consisting of 1 to 500 pages. Medium requests consist of 501 to 2,499 pages. Large requests—2,500 pages or more—take more time to process.

All of those numbers are inaccurate. Recent correspondence from the FBI FOIA office explicitly and significantly contradicts the numbers published on their website. According to their letter, which matches my experiences with their office, they only consider a request to be “small” if it’s between 1 and 50 pages – 10% of what they state it is on their website. A “small” request currently takes an estimated 183 days to complete* (between 0.01 and 0.27 pages per day), compared to the 20 business days required by the statute and almost universally ignored by FOIA offices. In comparison, a “large” request takes an estimated 475 days. (On some level, the FBI knows these numbers are unreasonable; they themselves will only consider a FOIA appeal “timely” if it’s filed within 60 days – less than 1/3 of the average time it takes them to respond to a simple request.)

  • Small: 1 to 50 pages (Listed as 1 to 500)
  • Medium: 51 to 950 pages (Listed as 501 to 2,499)
  • Large: 951 pages or more (Listed as 2,500 or more)

The next statement on their website about how they handle large requests is equally inaccurate, although perhaps less dishonest.

If your request appears to be 2,500 pages or more, a negotiator will contact you. Negotiation can be a worthwhile and useful tool, enabling the requestor [sic] to narrow his or her request and save time and money in the process.

It is true that negotiators will contact a requester for large requests, but only after a requester has agreed to pay the duplication costs for the request. This means that most large requests are closed before ever going to negotiation, allowing the FBI to avoid the issue entirely.

This still leaves the question of when and why the FBI changed its definition for small, medium and large requests, and why the website was never updated to reflect this fact. You can follow my FOIA request about these questions here.

*Some statistics, like MuckRock’s, list the average response time as being notably shorter than this. Those statistics include rejected FOIA requests, Glomar responses and preprocessed files, which considerably lower the average response time by removing any need to individually examine pages. In the instance of MuckRock’s statistics, the FBI avoids processing documents or reviewing pages for a majority of requests.

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