The FBI has decided to insert itself into another public records battle. The agency has long been known to cc: itself to public records requests for Stingray documents, but this time it’s claiming any requests for local law enforcement documents related to the Orlando nightclub shooting need to be routed through it.
A June 20 letter from the FBI, attached to the City or Orlando’s lawsuit over withholding 911 calls and other records from 25 media outlets including the Orlando Sentinel, was also sent to the Seminole County Sheriff’s Office with instructions pertaining to how they should respond to records requests.
The letter requests that agencies deny inquiries and directs departments to “immediately notify the FBI of any requests your agency received” so “the FBI can seek to prevent disclosure through appropriate channels, as necessary.”
Notice the FBI says “prevent disclosure,” rather than, say, “assist in determining which documents can be released.” The letter [PDF] claims that all records generated by local law enforcement agencies are now the FBI’s by proxy and that the “investigative documents” exemption [Exemption 7(A)] prevents the release of all documents related to the shooting.
The FBI flat-out states all documents are belong to it.
The FBI considers information obtained from state and local law enforcement agencies in furtherance of its investigation to be evidence, or potential evidence.
Presto! Instant blanket exemption from disclosure at both federal and state level. The FBI takes care to point out which Florida Sunshine Law exemption local agencies can use to withhold documents from requesters.
There’s significant public interest in these documents, especially those related to EMS/police response to emergency calls. This obviously conflicts with the FBI’s determination that its ongoing investigation — which now apparently contains every document created by every responding law enforcement agency in Florida — should preempt any and all requests for documents via Florida open records laws.
Not for nothing have there been several efforts mounted to alter blanket exemptions like the one the FBI is using to insert itself into local level records requests. Unfortunately, it’s very likely the FBI’s wielding of this “open investigation” exemption will be granted deference by the federal court currently presiding over an open records lawsuit between the Orlando Sentinel and the City of Orlando, even though this fight never should have included a federal agency conducting its own concurrent investigation of the mass shooting.
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