This annotated example uses semi-fictional information but is based off real-world public records requests that AI Now, Prof. Rashida Richardson, the Center for Constitutional Rights have filed in the past.

Purpose of Request[8] 

The request is specifically directed at the monitoring of protest activity and public gatherings whose subject matter or theme involved police brutality, criminal justice, racial inequalities, and the Movement for Black Lives. CCR is concerned that surveillance and monitoring practices of the Federal Bureau of Investigation, the Department of Homeland Security and other federal, state, and local law enforcement entities are chilling the First Amendment protected activities of Black organizers, activists and members of the public at large who are or who wish to speak out publicly in opposition to the alarming – indeed crisis-level – trend of police brutality and killing in the United States.

Recently, activists have become aware of the FBI and DHS’s use of databases for collecting data on political activity3 and “analyze” such data to create “suspect lists” and “profiles.” The database platforms used by the FBI which CCR is aware of have names such as “Wizard,” “All Seeing Eyes” and “Stratego” but there may be others. The use of these systems to monitor, surveil, intimidate and potentially criminalize those involved in First Amendment-protected activity is extremely worrying.

A. Definitions[9] 

 

  1. Record(s). In this request the term “record(s)” includes, but is not limited to, all Records or communications preserved in electronic (including metadata) or written form, such as correspondences, emails, documents, data, videotapes, audio tapes, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, legal opinions, protocols, reports, rules, talking points, technical manuals, technical specifications, training manuals, studies, or any other Record of any kind.
  2. Agreement(s). In this request the term “agreement(s)” refers to any agreement, written or otherwise; communications; contracts and/or supplements, modifications or addendums to contracts or agreements.
  3. Communication(s). In this request the term “communication” means the transmittal of information (in the forms of facts, ideas, inquiries or otherwise).
  4. Key Protest(s). [10] In this request the term “key protest(s)” includes, but is not limited to, physical gatherings such as rallies, vigils, or public demonstrations regarding police violence, police brutality, police reform, policing abuses or anything related at the locations below:
    1. Minneapolis-St. Paul, MN
    2. Louisville, KY
    3. New York City, NY
    4. Los Angeles, CA
    5. Chicago, IL
    6. Washington, DC
    7. Portland, OR
    8. San Francisco, CA
    9. Oakland, CA
  5. Surveillance. In this request the term “surveillance” means any form of physical or non-physical/virtual observation, monitoring, recording, or transcription, whether conducted by an individual or through automated means such as by software, aerial surveillance vehicles (“drones”) or mounted cameras.
  6. “Suspect Lists” In this request, the term “suspect list” refers to any type of list generated by any of the Systems used by the FBI or DHS.
  7. Automated Decision System/ Automated Decision-making.[10b] In this request the term “Automated Decision System/ Automated Decision-making” refers to any system, software, or process that uses computation to aid or replace government, decision, judgments, and/or policy implementation that impact opportunities, access, liberties, rights, and/or safety. This can include the use of spreadsheet software like, Microsoft Excel.
  8. Database. In this request the term “databases” refers to information systems, either digital and manually maintained, that are used to compile, analyze and share information regarding individuals and/or groups to aid or inform criminal investigation. This includes any platform(s) engaged by the FBI and/or private, third-party entities contracted by the FBI, including but not limited to Wizard, All Seeing Eyes and Stratego, which have been used or are in use currently to gather information during any of the nationwide Key Protests referenced in this Request.
  9. Access. In this request the term “access” refers to the ability to do one or more of the following: view, query, add, delete, alter or retrieve records in the database or system.
  10. Audit. In this request the term “audit” means collecting data about the behavior of an algorithm in the relevant use context, and using data to assess the algorithm’s behavior, patterns, and anomalies. Audits are performed to assess the risks and errors an algorithm may present in the relevant use context, including whether the algorithm’s behavior is negatively or adversely affecting the rights or interest of people affected by the algorithm.
  11. Source Code. In this request the term “source code” means the instructions written by a human to create a computer program, software, or application.
  12. Validation Study or Analysis. In this request the term “validation study or analysis” refers to studies regarding the accuracy, validity, reliability or other factors related to a database or systems performance.

B. Request for Information[11] 

For purposes of this FOIA request, requestors seek information in regards to protests that occurred from March 1, 2020 to Present.

  1. All records including information relating to the Database(s) that [DESCRIBE WHAT IT DOES] within the FBI and/or DHS, including but not limited to the screenshots of web-portals or interfaces, applications, any additional tools of analysis (including the source code and models for such analysis), developer documentation, and operator manuals. [IH12] 
  2. All records maintained in the database [13]
  3. All records, including but not limited to documentation or internal communications, about the factors and data sources used to develop and determine the data fields in the Database.
  4. All records showing the full list of the data fields in the Database.[IH17] 
  5. All records of policies regarding database use, management, maintenance, and compliance with relevant laws. This can include internal guidelines or memorandum regarding department audit or notification procedures or records of database maintenance or system updates. 
  6. All records showing how FBI staff access and use the database. This can include user manuals, training documents, internal directives, and procedures, including any procedures in place specifically regarding data related to political protests and/or protests against law enforcement.[18]  
  7. All records of, including communications regarding, audits, system tests, internal reviews, or intragovernmental investigations or inquiries of the Database. [IH19] 
  8. Any internal policies, practices, procedures, memoranda and training materials for using the Database, and for storing, accessing, and sharing data analysis created by the Database. [IH20] 
  9. Any internal policies, practices, procedures, memoranda and training materials for sharing data inputs and outputs created by the Database with entities outside of the FBI, including but not limited to the Steven Miller Institute.[IH21] 
  10. Any records showing which entities outside of the FBI have accessed, used or requested to use, the Database(s).[IH22] 
  11. Any records reflecting any agreements for or permission to develop, use, test, or evaluate the Database(s) used to create “profiles” and/or “suspect lists” and services with any third-party vendor or consultants, including but not limited to the Patriot Corporation. [IH23] 
  12. Any Records referencing the public process preceding the procurement, acquisition, or development of the Database, including public meeting agendas or minutes, public notice, analyses (including fiscal or costs analysis), or communications between the FBI and elected officials or other public servants.[IH24] 

C. Format of Production[25] 

Please search for responsive records regardless of format, medium, or physical characteristics, and including electronic records. Please provide the requested documents in the following format:

  • Saved on a CD, CD-ROM or DVD;
  • In PDF or TIF format;
  • In electronically searchable format;
  • Each record in a separately saved PDF file;
  • “Parent-child” relationships maintained, meaning that the requester must be able to identify the attachments with emails;
  • Any data records in native format (i.e. Excel spreadsheets in Excel);
  • Emails should include BCC and any other hidden fields;
  • With any other metadata preserved. [25b]

D. The Requester[26] 

The Center for Constitutional Rights (“CCR”) is a non-profit, public interest, legal, and public education organization that engages in litigation, public advocacy, and the production of publications in the fields of civil and international human rights. CCR’s diverse dockets include litigation and advocacy around policing, and racial and ethnic profiling. CCR is a member of several networks nationally and provides legal support to civil rights movements. One of CCR’s primary activities is the publication of newsletters, know-you-rights handbooks, legal analysis of current immigration law issues, and other similar materials for public dissemination. These and other materials are available through CCR’s Development, Communications, and Education & Outreach Departments. CCR operates a website, www.ccrjustice.org, which addresses the issues on which the Center works. The website includes material on topical civil and racial justice rights issues and material concerning CCR’s work. All of this material is freely available to the public. In addition, CCR regularly issues press releases and a regularly updated blog, as well as “action alerts” sent to over 50,000 members that notify supporters and the general public about developments and operations pertaining to CCR’s work. CCR staff members often serve as sources for journalist and media outlets, including on issues related to racial justice, police brutality, racial discrimination, and the right to dissent.

E. Fee Waiver[27] 

The Requester is entitled to a fee waiver pursuant to 5 U.S.C. § 552 (a)(4)(A)(iii), 6 C.F.R. § 5.11(k), and 28 C.F.R. § 16.10(k) on the grounds that “disclosure of the requested records is in the public interest because it is likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester[s].” 5 U.S.C. § 552(a)(4)(A)(iii); see also 6 C.F.R. § 5.11(k) (records furnished by DHS without charge if the information is in the public interest, and disclosure is not in the commercial interest of institution); 28 C.F.R. § 16.10 (k) (records furnished by DOJ without charge if the information is in the public interest, and disclosure is not in the commercial interest of institution). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987). Requester meets the requirements for a fee waiver because the subject of the request concerns the operations or activities of the government; the disclosure of the information is likely to contribute to a significant public understanding of government operations or activities due to the Requester’s expertise in the subject area and ability to convey the information; the Requester’s primary interest is in disclosure; and they have no commercial interest in the information. In addition, pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II), 6 C.F.R. § 5.11(k)(2)(iii), (k)(3)(ii), and 28 C.F.R. § 16.10(k)(2)(iii), (k)(3)(ii), the Requester qualifies as a “representatives of the news media,” defined as “any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also 6 C.F.R. § 5.11(b)(6); 28 C.F.R. § 16.10(b)(6). [28] 

As described in Part D above, the Requester is a non-profit organization dedicated to civil rights and human rights, and have a proven track-record of compiling and disseminating information and reports to the public about government functions and activities, including the government’s record and position on surveillance, protests, policing and racial justice. The Requester has undertaken this work in the public interest and not for any private commercial interest. Similarly, the primary purpose of this FOIA request is to obtain information to further the public’s understanding of government actions and policies in regards to the surveillance of peaceful protestors. Access to this information is crucial for the Requester and the communities it serves to evaluate governmental surveillance actions and their potential detrimental efforts.

As stated above, the Requester has no commercial interest in this matter. The Requester will make any information that they receive as a result of this FOIA request available to the public, including the press, at no cost. Disclosure in this case therefore meets the statutory criteria, and a fee waiver would fulfill Congress’ legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be ‘liberally construed in favor of waivers of noncommercial requesters.’”).

In the alternative, we request a limitation of processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II). (“[F]ees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative of the news media.”). See also 6 C.F.R. § 5.11(d)(1); 28 C.F.R. § 16.10(d)(1). If no fee waiver is granted and the fees exceed $250.00, please contact the Requester to obtain consent to incur additional fees.[29] 

F. Expedited Processing[30] 

The Requester is entitled to expedited processing of this request because there is a “compelling need” for the information. 5 U.S.C. § 552(a)(6)(E)(i)(I). A “compelling need” is established when there exists an “urgency to inform the public about an actual or alleged Federal Government activity,” when the requester is a “person primarily engaged in disseminating information,” 6 C.F.R. § 5.5(d)(ii); 28 C.F.R. § 16.5(e)(ii).

There is an urgent need to inform the public of the policies and decision-making regarding government involvement in surveillance and monitoring of peaceful protestors and organizers.4 Large campaigns and events around policing, racial equality, and BLM continue to be organized and promoted on a nearly daily basis nation-wide. [31] The interest from members of the public to participate in the protests and support this movement continues to grow, with the media having an equal interest to report on the issues being raised by these protests. Members of the public, particularly those interested in participating in or supporting protests, have a right to know the level of governmental surveillance of these protests and movements and the potential effects on their privacy and security.

As described in part D above, Center for Constitutional Rights is primarily engaged in disseminating information. CCR has a proven track-record of compiling and disseminating information and reports to the public about government functions and activities, including the government’s record on surveillance of political and social movements as well as those movements’ leaders and participants. [32] CCR will use its press and media connections as well as its considerable web infrastructure to publicly disseminate information received from this request on a national scale. Based on the findings of this request, CCR will also engage directly with groups and communities found to be surveilled or under surveillance for their involvement in protected political activity.

In addition, the DOJ grants expedited processing where the subject of the request is a “matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.” 28 C.F.R. § 16.5(e) (iv). As discussed in the “Background” section above, there is widespread and exceptional media interest in M4BL, in ongoing police brutality and lack of accountability, and on surveillance of political protest activities. The government’s surveillance of activity protected by the First Amendment calls into question government integrity and affects public confidence regarding accountability for police brutality.

2 We believe the following field offices, in particular, are likely to have responsive records: New York, Chicago, and New Orleans.

3 See, for example, Joe Smith, “Leaks Show FBI and DHS Using Secret Databases.” Washington Post, January 1, 2022. 

4 For example, a conference at Georgetown University Law Center entitled “The Color of Surveillance” was scheduled for April 8, 2016 to explore racial bias in government monitoring, including of Black Lives Matter activists. See conference programming at: http://www.law.georgetown.edu/news/press-releases/the-color-of-surveillance-georgetown-law-conference-to-explore-racial-bias-of-government-monitoring.cfm. (“The day-long conference will feature Pulitzer Prize-winning historians, scholars, activists and members of the criminal justice, law enforcement and national security communities.”)