Federal Judge Says Public Has Right To Know About FBI’s Biometric Database, Awards $20,000 In Legal Fees To FOIA Requester

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EPIC.orgAnother win for the Electronic Privacy Information Center (EPIC) and the American public in general. A federal judge has ruled the public has the right to know certain details about the FBI’s facial recognition database.

U.S. District Judge Tanya Chutkan said the bureau’s Next Generation Identification program represents a “significant public interest” due to concerns regarding its potential impact on privacy rights and should be subject to rigorous transparency oversight.

“There can be little dispute that the general public has a genuine, tangible interest in a system designed to store and manipulate significant quantities of its own biometric data, particularly given the great numbers of people from whom such data will be gathered.”

Not only did Chutkan compel the release of documents related to the FBI’s Next Generation Identification (NGI) database, but she also awarded $20,000 in legal fees to EPIC. In the opinion [pdf link], she points out that — despite its arguments to the contrary — the FBI was anything but “responsive” to EPIC’s FOIA request.

The FBI’s explanation for its delay in producing the requested documents is not unreasonable; the Court is well aware that compliance with FOIA requests can require significant agency time and resources. However, after EPIC narrowed the scope of its Second Request—at the behest of the FBI—the FBI had no further contact with EPIC for six months, until after EPIC filed this lawsuit. The FBI has not advanced any colorable legal reason why, after indicating that it possessed responsive documents and asking for a revised request, it simply ceased all communication with EPIC in October 2012, until EPIC sought recourse in this Court in April 2013.

Despite the FBI being more motivated by lawsuits than FOIA requests, Chutkan softens this blow by stating she saw “no evidence” that the agency behaved “recalcitrantly or obdurately.” This is its standard m.o. of many government agencies, FBI included. If it wasn’t, there wouldn’t be nearly as many lawsuits.

The good news is that courts are recognizing (at least, now and then) that there’s a very asymmetrical collection of information going on here. Agencies like the FBI gather up tons of data, much of it personally-identifiable, and then refuses to grant the public even the tiniest bit of access. When members of the public ask to see the data gathered on them (by requesting their own records), they’re told that doing so would compromise law enforcement operations and methods.

The public does have a right to know what’s being collected and distributed to law enforcement agencies around the nation. The public cannot simply rely on the (limited and often ineffective) oversight of its legislators. True accountability comes from outside the government, not from within it, and FOIA laws are supposed to facilitate that. A few more wins for the public will increase the effectiveness of the accountability tool, something that has been blunted tremendously by government agencies’ willful opacity over the past several years.