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.