FOIA office’s sudden activity on Clinton and Trump pasts draws suspicion.
Suddenly renewed activity on an FBI Twitter account publicizing Freedom of Information Act releases has prompted an internal bureau review of the propriety of such activity so close to the Nov. 8 election, according to a source involved in the matter.
In emails obtained by Government Executive sent to an ex-investigative reporter who filed complaints, the deputy at the FBI’s Office of Professional Responsibility on Tuesday revealed that the complaint about possible political favoritism in tweeting has been referred to the FBI’s Inspection Division.
“Upon the completion of its investigation, the matter will be referred to my office for adjudication,” wrote Candice Will, assistant director of the Office of Professional Responsibility to Jonathan Hutson, a former investigative reporter and now a media consultant. He received a similar email from Nancy McNamara, assistant director of the FBI’s Inspection Division, with two more FBI employees copied.
An FBI official told Government Executive that on Oct. 30, electronic patches were sent through the FBI’s content management system to fix the automatic feed of information that goes through the FOIA Twitter account.
First reported on Thursday by the liberal-leaning news service Think Progress, the new probe comes days after questions were raised about the FBI FOIA office’s release on Monday of 129 pages of documents pertaining to the 2001-2005 investigation of President Bill Clinton’s last-minute pardon of fugitive financier Marc Rich, whose wife was a longtime Clinton donor.
That probe, led for a time by current FBI Director James Comey as a U.S. attorney, ended with no prosecutions, which is why the Hillary Clinton campaign immediately complained that its timing seemed questionable. “Absent a (Freedom of Information Act) deadline, this is odd,” Clinton campaign spokesman Brian Fallon tweeted. “Will FBI be posting docs on Trumps’ housing discrimination in ‘70s?”
It also comes less than a week after Comey shook up the presidential race with his letter to lawmakers and FBI staff suggesting that newly uncovered emails in an unrelated probe might be “pertinent” to the bureau’s suspended investigation Hillary Clinton’s mishandling of State Department emails.
The FBI responded to this week’s complaints with a statement outlining its FOIA policies:
“The FBI's Records Management Division receives thousands of FOIA requests annually which are processed on a first in, first out basis,” it said. “By law, FOIA materials that have been requested three or more times are posted electronically to the FBI’s public reading room shortly after they are processed. Per the standard procedure for FOIA, these materials became available for release and were posted automatically and electronically to the FBI’s public reading room in accordance with the law and established procedures.”
But critics have now zeroed in on the bureau’s Twitter account at the FBI Records Vault. As noted by ex-investigative reporter Hutson, who first filed a complaint with the Justice Department inspector general, the FBI’s FOIA Twitter account had been silent for the past year. “For the first few years after its 2011 launch, most of its tweets produced only 10 re-tweets, the most being 122,” Hutson said. “But suddenly, at 4:00 a.m. on Sunday, Oct. 30, it roared to life, not for business and not usual.”
The Tweet on Bill Clinton’s Marc Rich pardon, which was part of a probe on the Clinton Foundation, “was highly negative for Hillary Clinton” because it didn’t mention that no charges were brought, while another recent FBI tweet, announcing new documents pertaining to Republican candidate Donald Trump’s father’s past housing industry activities, favored Trump by “calling him a philanthropist,” which in Hutson’s view is “editorial shading.”
Also, Hutson said, “it is significant and telling” that the FBI FOIA people also recently tweeted the FBI’s ethics manual. “That shows they know full well that is it illegal for bureau employees to influence or effect the outcome of an election.” Hutson believes there may be violations of the Hatch Act, Justice Department guidelines and the FBI ethics manual. The FBI vault item on the Clinton Foundation, he pointed out, now has 9,000 re-tweets.
FOIA specialists consulted by Government Executive had mixed evaluations of this turn of events, both for the release of the FOIA documents and the related tweeting. “It’s nothing abnormal,” said Ronald Kessler, an author and longtime investigative journalist who has written on the FBI. “People don't understand that it would be improper for the FBI to withhold a release of material to try to manipulate media coverage simply because agents happen to finish their work on it late Friday afternoon or just before an election. Like all of us humans, agents try to work extra hard to finish a project that is close to completion before a long weekend.”
Anne Weismann, executive director of the Campaign for Accountability, said after all her years of sending FOIA requests to the FBI, she found it “astonishing” that the FBI is tweeting, saying it “adds to the unprecedented nature” of this fall’s FBI’s intervention in the presidential race. She also found it odd that the FBI released what appears to be a “first round, partial” file of documents in the Marc Rich case, “with no context.” “Unless you knew they were talking about a major, very serious investigation of a former president, you wouldn’t know that the FBI never prosecuted Clinton,” she said. “I’ve pushed the FBI in litigation for release of documents on a rolling basis, and they always say no.”
Alex Howard, a senior analyst at the Sunlight Foundation, said the FBI has some flexibility in releasing documents. “Agencies are mandated to acknowledge a FOIA request in 20 days, although many in practice do not. Unless an agency is under instruction by a judge to release records responsive to a FOIA lawsuit on a specified timeline or by a given deadline, however, agencies can have some discretion in when they disclose records to a requester, unless their FOIA regulations specify otherwise. The "first in, first out" standard is one such rule: some agencies have pending FOIA requests going back over a decade.”
Daniel Schuman, policy director for Demand Progress, said, “There's not enough information to make a judgment, which is why we would welcome an independent investigation, but on its face it is unusual.”