Case Law

FBI Taken To Task for Failure to Provide ESI in Response to FOIA Requests

Judges are holding government agencies to the same standards as all civil parties in eDiscovery — even in the criminal context.  The same is true when it comes to FOIA request responses.

Gregory Bartko — a white collar criminal defendant currently residing in a federal penitentiary on a 23-year stint for securities fraud — filed FOIA (“Freedom of Information Act”) requests with the Federal Bureau of Investigation (“FBI”) seeking documents that might show his innocence.

In response, the FBI audaciously argued that documents contained on thumb drives and CDs did not have to be disclosed under FOIA and refused to release more than 300 documents. To justify its withholding, the FBI argued that because the documents resided on thumb drives and CD’s, they were not “records” under FOIA.

United States District Judge James E. Boasberg characterized the FBI’s position as “transparently implausible”.  The Judge did not have to look far to find a basis for rejecting the argument, concluding that “no sophistry is necessary here, as Congress, with commendable technological foresight, amended FOIA in 1996 to cover records ‘maintained by an agency in any format, including an electronic format.’”  To read the full opinion, see Bartko v. United States Dep’t of Justice, 2014 WL 3834343 (S.D.Ga June 6, 2014).

If you’re asking for records from a federal or state agency under FOIA, you may want to cite this case as part of your request to prevent having to argue for it in front of a judge. You’ll save time and money.

The full case digest is available in eDiscovery Assistant.  To locate the case, go to Case Law and filter using the FOIA/Open Records tag, or search for the case by jurisdiction or title.



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