African Journalist Wins the Right to FOIA Discovery From U.S. Army
 
January 2, 2007
 
Lawrence R. "Larry" Liebesman- Washington

In a rare decision, a U.S. District Court in Washington D.C. has stayed summary judgment proceedings and permitted discovery in a Freedom of Information Act case. 

The FOIA action resulted from the false arrest of a freelance African journalist by the Military Police at a U.S. State Department credit union in Washington.  The journalist, Alseny Ben Bangoura, believes that he was the subject of racial profiling.  His companion at the time of the arrest overheard the credit union staff remark that “two Muslim-looking men are acting suspiciously.”  Bangoura is a citizen of the Republic of Guinea in West Africa.

Bangoura was never charged, but he was held for over four hours under interrogation by military police.  Bangoura’s employer, the Office of Broadcast Reports, a component of the U.S. State Department, subsequently apologized for his arrest.

Bangoura filed a FOIA action seeking any and all documents related to his arrest, following the government’s failure to respond to a letter request for six months.  The government finally began its search after the litigation was filed, but what came next raised more questions than answers – as described in his pleadings, the government response was like a “trail of breadcrumbs, leading nowhere.” Several times in nearly two years of litigation, the government provided a small amount of records with a response representing that “no further documents exist.” 

Following one of these responses, Bangoura’s counsel sent a letter seeking records of his allegedly fraudulent checks, which were the subject of his arrest, and other documentation.  The government sent some documents and again represented that their production was complete.  Bangoura’s counsel corresponded with the government again asking why some basic military forms typically associated with arrests like these had not been provided.  As a result, the government located and provided those forms. 

Adding further complications, when Bangoura received documents from the government they were heavily redacted, with no corresponding Vaughan index, the privilege log that the law requires the government to furnish with redacted records.  Thus, Bangoura was left to contest privilege with no means to do so.

After certifying that it had finally and fully responded to the FOIA request, the government moved for summary judgment seeking dismissal of the litigation.  Faced with responding to summary judgment, Bangoura moved to stay the proceedings and conduct discovery.  Discovery is almost never allowed in FOIA litigation, and the party seeking discovery has to meet a high burden.  

In his motion, Bangoura acknowledged that FOIA discovery was “rare,” but where the government (1) exhibits bad faith, or (2) fails to meet its burden of a good faith search reasonably calculated to reveal documents relevant to the FOIA request, discovery is appropriate. 

Magistrate Judge Deborah A. Robinson in her December 8, 2006, order found that the facts in this case merit discovery as the government has not shown that it searched “in all locations likely to contain documents responsive to the FOIA request.”  Robinson did not rule upon whether the government’s actions amounted to bad faith.

In particular, Robinson found the following facts persuasive:

•    Government FOIA professionals stated their knowledge of standard search procedures without stating what those procedures would be in a similar case.

•    Duplicative searches were conducted with dissimilar results and no explanation was provided.

•    The government found documents after telling the plaintiff that “no further documents exist,” again, without any explanation.

The ruling permits limited discovery of 10 interrogatories and one deposition.  After discovery, Bangoura will defend against summary judgment. 

Because discovery in these cases is so rare, this ruling provides helpful precedent for future FOIA battles.

Holland & Knight represents journalist Alseny Ben Bangoura in this matter.

For more information, e-mail Lawrence R. Liebesman at lawrence.liebesman@hklaw.com, Christopher Nugent at christopher.nugent@hklaw.com, or  Amy S. Mushahwar at amy.mushahwar@hklaw.com, or call toll free, 1-888-688-8500.

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