Federal Court Orders FBI to Reveal More About Occupy Oakland Surveillance

This week, the United States District Court for the Northern District of California issued a terrific decision in our lawsuit against the FBI for records about surveillance of the Occupy movement. We hope that this decision will lead to the shining of some much-needed light on the FBI and its surveillance of political protest movements.

Last year, the ACLU-NC filed suit against the FBI for failing to produce documents that we requested along with the San Francisco Bay Guardian. After we sued, the FBI provided a handful of documents but, not surprisingly, withheld more. The initial response was significant because it confirmed what we had all long suspected – that the FBI was indeed monitoring the Occupy movement. It was also notable because the FBI withheld some documents on the grounds of "national security" – raising serious questions as to why the FBI believed that documents related to a political protest movement implicated national security.

Thereafter, the FBI moved to terminate our suit. This week, the district court found that the FBI had failed to meet its burden and denied the FBI's motion for summary judgment.

The ruling is particularly noteworthy for two reasons. First, it refused to accept the FBI's blanket statement that some documents had to be withheld for national security reasons. FOIA requires that an agency actually explain why disclosure would harm national security, and the district court declined to give the FBI a free pass.

Second, it rejected the FBI's effort to withhold documents pursuant to FOIA's exemption from disclosure for certain kinds of "law enforcement" records. In order to withhold documents on this basis, a federal agency has to show that the documents have a "rational nexus" to a legitimate law enforcement objective. This means the agency has to tell the court what specific law it was seeking to enforce. There's a very important reason why it is essential to hold the FBI to this requirement. The FBI has an unfortunate history of exceeding its legitimate law enforcement mandate and investigating political protesters. And if the FBI is doing something illegitimate, it should not be able to shield its conduct from public scrutiny.

In this case, the FBI said that it was "provid[ing] support to state and local law enforcement agencies regarding the ';Occupy' movements across the country." As we explained to the court in our briefs, the FBI is only authorized to enforce federal law and can provide investigative assistance to local law enforcement only in clearly delineated circumstances. It does not have free license to investigate political protest movements under the guise of providing unspecified "support" to state and local governments.

The court agreed that the FBI cannot withhold documents by merely stating that it was assisting local law enforcement. If the FBI had a legitimate law enforcement objective, it needs to tell us what that objective was. The court has given the FBI 30 days to provide that explanation.

We're delighted with the court's ruling and hope it will lead to some answers about the FBI's role in surveilling the Occupy movement.

Linda Lye is a staff attorney with the ACLU of Northern California.