Category: FBI Records

In my August 27 post, I made a wild claim about the FBI. I had the gall to accuse them of cherry-picking the records they release to the public to try to mislead us. I knew I was putting myself out on a limb by saying it, but I felt confident, so I said it anyway. 

Well…thanks to you, my insightful readers, I’ve had an epiphany on this topic, which provides us with more supporting evidence that the FBI has been misleading the public for a long time with regard to its record releases.

I know that many of you are busy watching football tonight, so I’ll try to keep this brief. Also, while we may be rooting for different teams, I like to think that there’s one individual who unites us all, win or lose, through thick or thin, whether we beat the spread or fall short.

And that is Kirk Herbstreit’s dog, Peter. 🐕 ❤️

OK, let’s get down to it. There’s no other way to do this than a Q&A. 

When you say the FBI has been cherry-picking, are you talking about more than just Ron Tammen’s records?

I am. This is more than Ron’s records. I’m now talking about all, or at least most, of the records the FBI has released to the public—JFK, RFK, MLK, Watergate, etc., etc., etc., and so on, and so forth.

The reason that I think they’re cherry-picking their records is that they don’t want the public to figure out what the numbers in the upper righthand corners mean. 

How are they cherry-picking their records?

They want us to think that the numbers in the upper righthand corner represent some sort of alphabetical grouping based on the subject of the document. According to their made-up system, names beginning with an A are given a 1; some names beginning with B get a 1, while others get a 2. Some Cs get a 2, while others, along with the Ds and Es, get a 3. At the opposite end, some of the S’s, all of the T’s, and all of the U’s get a 10. The V’s are a virtual free-for-all—I’ll be showing you why later. The W’s through Z’s get an 11. It would be an insane system with no discernible purpose, which is why I don’t believe they used it. 

When I say they cherry-picked, I’m saying that they tried to make it appear as if it was an alphabetical system by only releasing the records of subjects from a certain part of the alphabet for each number while holding back the records for subjects representing the rest of the alphabet. They’re making it look like it’s an alphabetical system in order to hide the true meaning behind the numbers.

Why would they care if we found out about the true meaning of the numbers?

My hypothesis is that the numbers refer to important people who received one or more copies of that record. In previous posts, I’ve suggested that they’re the FBI liaisons to various federal agencies, but I’m not married to that idea. They could be other categories of people. The only qualifying factor is that they occupy an important office somewhere—be it inside or outside the FBI—and the FBI felt that they should be kept in the loop. But I don’t think the FBI wants us to know who was privy to their records. It might open up a can of worms or something. 

So while I may not understand the specifics of why they’re doing it, I do have additional evidence that they’re doing it, thanks to my recent epiphany.

You said that your readers helped you arrive at your epiphany. Who exactly are you referring to?

I hope I don’t embarrass anyone, but I’m referring to comments made by two readers. The first comment was made by someone who goes by the username Whereaboutsstillunknown. Shortly after I uploaded my August 27 post—and I’m talking maybe within 15 minutes—this person made an observation that completely upended the way I saw things. Then, a second commenter whose username is a long string of numbers and letters told me about the existence of a document that discusses FBI indexing, which I was able to find online. When I considered Whereabouts’ observation alongside the information in number-guy’s document while reviewing the original FBI missing person records—namely, the ones that are in color—it finally dawned on me who was writing the numbers in the righthand corner. All of the sudden, everything made sense.

Who was writing the numbers in the righthand corner?

Don’t you want to know what Whereabouts said in his or her comment first?

OK. What was Whereabouts’ comment?

It had to do with a scribbled notation I’d found on several missing person records: “o’d on yellow.” I thought the “o” represented an o, as in the letter o, and I thought it might have stood for the word “office” or “official.” That’s just how my brain works—it sees an o, it thinks of the vowel that comes after a, e, and i and precedes u, and that’s pretty much all it thinks of. I knew that the word yellow referred to a Message Relay sheet, which was a routing cover sheet printed on yellow paper that included a list of federal agencies with neighboring boxes to check. The FBI used them when they wanted to send copies of certain records to one or more other federal agencies. In my theory, there was no reason to write anything on those sheets other than its recipients. Also in my theory, “o’d on yellow” meant that they’d written a number in the upper righthand corner of a Message Relay sheet to represent an office or official who’d been cc’d.

As a corroborating example, I’d pointed out a different notation that said “7 circled on yellow.” They were explicitly saying that they’d written the number 7 on a Message Relay sheet and circled it. In my theory, adding a number to the top right corner of a Message Relay sheet confirmed that a person represented by the number 7 received a copy.

In my closer, to get reader input, I asked for other suggestions of what the o might have stood for.

Shortly after I hit the “post” button, Whereabouts asked this amazing question: 

“…since someone had written ‘circled on yellow,’ my initial guess is that those might be drawn circles and not o’s?”

That’s brilliant, thought I. Seriously, seriously brilliant.

“That’s a great guess!”, I stated in an understated way.

Still, I had questions. Notations on other Message Relay sheets, whenever I was lucky enough to find one, didn’t seem to fit the “number circled on yellow” scenario. Namely, I wasn’t seeing any circled numbers on Message Relay sheets. I’d found an “o’d 2” on Lady Bird Johnson’s Message Relay and a few “op2” on other people’s Message Relays. Then I read the detailed document about how the indexing system worked plus a few other helpful documents and the fog lifted.

What did you learn when you put everything together?

I learned how important the Files and Communications Division was in the grand scheme of FBI operations. The Files and Communications Division, which was later renamed the Records Management Division, took in all mail, no matter the source, and routed it to the most appropriate recipient(s) while saving copies in its enormous Central Records filing system. Files and Communications were the eyes, ears, noses, and tastebuds of the FBI—the ones who, after being presented with totally new information, determined who all needed to see it.

Seriously, try to imagine all of the mail that FBI Headquarters receives in a day covering a range of wildly different topics. A college student from Cleveland goes missing from his dorm; several men are caught in the wee hours at DNC headquarters, one of whom used to work for the FBI and CIA; a wiretap is found in Dan Rowan’s Las Vegas hotel room; a U.S. president has been assassinated in Dallas. Who should they forward it to? Who needs to know? 

In addition, Files and Communications staff were the ones who typed the index cards that made up the General Index—the colossal indexing system (at one time totaling 65 million cards!) that was the starting point when an agent wanted to access a particular case file. They were also the people who assigned a classification number and case number to every single FBI case, which also numbered in the millions. Not only were they the eyes, ears, noses, and tastebuds of the FBI, I guess you could say they were the prefrontal cortex too. 

Most significantly to you and me, they were the people who wrote on the FBI records in blue pencil.

Are you saying that they were the ones who wrote the numbers in the upper righthand corner?

Indeed, I am. I’m also saying that they likely wrote the other phrases that were typically found in blue on an original FBI record, including “see index,” “FD-217,” and “o’d on yellow.”

What was with those ridiculous little circles?

Please don’t disparage the little circles. Those little circles had purpose. They were what helped me figure everything out. 

One of the first things a Files and Communications employee would do when they were handed a piece of mail was to locate the name or names that would require an index card. Sometimes the index card had already been made, such as for longstanding ruffians Carlos Marcello and Santo Trafficante. Other times they’d need to create a new one. It didn’t matter. On every incoming piece of mail, the Files and Communications folks would always, always, always draw a circle in front of the person’s last name (if we’re talking about a person) or another important reference word. And those circles were always, always, always written in blue.

You know what else was always written in blue? The classification and case numbers. 

What about the notes written in blue? How and why would the Files and Communications Division write those notes?

Keep in mind that the Files and Communications Division was massive. One unit was doing the indexing, another unit doing the classifying, another assigning case numbers, another assigning the serial numbers at the end of case numbers, and so on. (I’m not saying that the jobs were exhilarating. I’m just saying that there was a lot to be done.) You also had a unit doing routing. Separate from all of that, another unit was conducting background checks for other federal agencies. Plus you had unit supervisors, section supervisors and, ultimately, a division head.

Here’s a nice flow chart to help you picture the operation. (As far as I can tell, it was called the Records Branch before it was Files and Communications.)

If, as I believe, the Files and Communications Division was writing the additional notes in blue, that would explain:

• The numbers in the righthand corner  – someone high up in routing might add one or more numbers from 1 through 11 to indicate the important people or office who should receive a copy of the record. Sometimes they’d follow the number with a hyphen and the number 1 or 2 to indicate how many copies they should receive.
  
• See index – Someone high up would write this on some records to notify the agent assigned to the case that the subject was on the Security Index. 
  
• FD-217 – When a field office didn’t know the case number, they’d include this form with their report, which, I believe, also provided information about what number to put in the upper righthand corner. Someone high up in routing would sometimes reference the FD-217 form when they added the number in the upper right.
  
• o’d on yellow – This one is a little trickier.

How is “o’d on yellow” trickier? And what about the unresolved issue you had with the phrase “o’d on yellow” when there weren’t any numbers circled on Message Relay sheets?

Wow. You really do love frolicking in the weeds, don’t you? OK, so my unresolved issue had to do with the Message Relay sheets that said “o’d 2” or “op2” but that didn’t have any numbers circled. As it turns out, those notations weren’t referring to the numbers in the upper righthand corner. They were in reference to the circle placed in front of a last name, which happened to be on page 2 of the record that was being relayed.

Remember Lady Bird Johnson’s o’d 2 from my blog post? On page 2 of that transmission, they’d placed a circle in front of the name Johnson, probably in blue, but, unfortunately, I don’t have the original so I can’t confirm that. Likewise, the op2 people also had circles in front of their last names on page 2, also probably in blue. (The p stands for page.)

Here’s the op2 for Sam Giancana:

As for the “o’d on yellow” folks, the Files and Communications Division would sometimes write the subject’s name on the Message Relay sheet and add the circle in front of the person’s last name. That’s what I believe they’d done in several designated missing person files. (Unfortunately, they neglected to include the Message Relay sheets in their files so I can’t confirm.) Nevertheless, here’s an example of our old friend James McCord’s Message Relay with the circle in front of his last name:

The take-home here is that “o’d on yellow” referred to the circles in front of last names corresponding to the alphabetized index cards in the General Index. Those were different from the “7 circled on yellow” example, which I believe was referring to a 7 that had been written in the righthand corner of a Message Relay sheet. In both examples, the notation for circle was the same, but the reason for the circles differed. 

OK, enough shop talk. Let’s talk about the most important reason for this blog post.

What about the additional evidence you have that the numbers refer to actual people and that the FBI has been cherry-picking the records it releases to the public?

First and foremost, if the Files and Communications Division was responsible for the numbers in the upper righthand corner, there’s no way that those numbers had anything to do with some internal, arbitrarily subdivided alphabetical system that would benefit no one. Those staff members were working too hard at maintaining the General Index system, which was 100 percent alphabetical, as well as the case filing system, which was purely numerical. An FBI staffer would look up a name in the General Index, which supplied them with one or more case numbers in the Central Records System, prefaced by its classification group, which was also numerical. It was a perfectly logical system and the Files and Communications Division was married to it. There was no reason for them to add arbitrarily subdivided categories within a classification group to the betterment of no one.

OK, so hear me out. What if there was some internal operational reason for the numbers? For example, what if they were written to help the people who were responsible for filing the records in the Central Records System? You’ve said yourself that it was a huge filing system. What if those numbers referred to room numbers to help them know where to go?

That’s sweet. But there’s no way they would do that. Files and Communications staff would draw the circles, they’d write the classification and case numbers, and they’d write the special notes, all of which were helpful to the agents reading the records. And let’s focus solely on the Message Relay sheets. The recipients represented the White House, the CIA, the Attorney General’s office, and the like. There’s no way that someone from the Files and Communications staff would write helpful little notes to their colleagues who filed the records, and, what’s more, to do so only on occasion, if they were feeling big-hearted. It was the filers’ job to know where to go. 

Do you have other evidence that the numbers refer to actual people and that the FBI has been cherry-picking the records it releases to the public?

Absolutely. Just for fun, I created an Excel sheet of all of the missing person records I recently obtained from the National Archives. Next to each person’s name, I placed the number or numbers that were in the upper righthand corners in their own box or cell. Then I added other well-known subjects to the list—such as Carlos Marcello and Santo Trafficante—with their respective numbered boxes to find out if anyone fell outside of the made-up, arbitrarily subdivided system. 

Granted, there weren’t a ton of people who fell outside. I imagine someone’s job was (and maybe still is?) to pull only the records that match the arbitrarily subdivided system, and they’ve gotten good at it. Thankfully, nobody’s perfect and everyone can have an off day now and again. Listed below is a sampling of the more well-known people and organizations who have one or more records that fall outside of the FBI’s made-up system. 

For your assistance, I included a circle in front of the names that had been indexed. Also, note that I believe the numbers after the hyphens are the numbers of copies that the designated official received. A 3-1 versus a 3-2 tells me that official 3 received 1 copy in the first example and two copies in the second. If only the number is listed or a number plus a hyphen, I believe they received 1 copy.

Bella ^oAbzug

Should have had a 1, but was assigned a 3-1 instead.

Spiro ^oAgnew

Should have had a 1, but received a 10 instead after a possible assassination attempt.

Princess ^oDiana and Prince ^oCharles

Although the 2-2 and 3-2 would fit the made-up system for Charles’ and Diana’s names, their Message Relay sheet, which preceded a report for a potential bomb plot, had an added 10-2 as well.

^oCentral Intelligence Agency’s Intentions to Send Hoodlums to Cuba to Assassinate Castro

Should have had a 2 but was given an 8- instead.

Judith ^oCoplon, Soviet spy and DOJ employee

Should have had a 3, but got a 7-1 instead.

John ^oDenver

Was given a 10-2 and 11-2 in addition to his 3-2 for threats against his life

Meyer ^oLansky

Should have had 6’s, but received a 9 on two records and a 10-, and 11 on one.

Carlos ^oMarcello

Should have received 7’s but received 8’s on two records.

Santo ^oTrafficante

Should have received a 10 but got a 9 instead.

Werner ^oVon Braun

Should have received an 11, but received on several records: 2-1; 3-1; 4; 7 and 7-1; 8; 9, 9-, and 9-1’s; and, OK, a couple 11s and an 11-1. (This is what I mean when I say that the only V example I have is a free-for-all.) Here are a few examples:

Illinois Governor Dan ^oWalker

Should have received an 11, but got a 2 instead.

I also need to tell you about one interesting missing person document.

What’s that?

This was a tragic case involving a 13-year-old African-American girl named Dorothy Sampson. Dorothy had gone missing in Fayette, Mississippi, on December 8, 1970, after running an errand for her neighbor. She was subsequently found in an oil field on Christmas day of that same year, sexually assaulted and murdered. The story is too grim to include here, however the reason I bring it up is that civil rights leader Charles Evers, the mayor of Fayette and older brother to famed civil rights leader Medgar Evers (who was assassinated on June 12, 1963), had been implicated by informants as having been involved in the murder. Although Charles was no angel, I don’t believe it for one minute. He was never charged. The racism in this case was off the charts, and Dorothy’s file makes me sick to my stomach.

What I want to share with you is a record dated 9/13/72. You can see the circle in front of the name ^oSampson. You can also see a circle in front of a name that has been redacted, which I believe to be Evers. There are two blue numbers in the upper righthand corner—a 6 and a 9. Because Dorothy’s last name is at the front end of the S’s, her 9 is consistent with the FBI’s made-up system, even though later S’s received 10’s. (See what I mean about their arbitrary subdivisions?) But Charles Evers should have gotten a 3, not a 6. Now look more closely at those numbers in the righthand corner. Can you see where the numbers 3-1, 10-1, 11-1, and 5-1 were once there, but were subsequently erased? The 10, 11, and 5 don’t fit the FBI’s made-up system. Other writing was erased too.

Now look at the bottom of the page, under LEADS, written in regular pencil. It reads (to the best that I can tell): “No dissemination to White House as no pertinent info developed on Evers.”

Did someone overrule several of the numbers in the righthand corner and is that why some of them were erased? Does that notation confirm that the numbers are in reference to the FBI’s secret dissemination list? Could one of the erased numbers be in reference to the White House? I could be wrong due to the placement of the note on the record and the fact that a similar note had been written on several other records, but I thought I should let you know.

OK, I think I’ve said enough today. Have a great weekend, and, as always, if you spot anything I’ve missed, please feel free to weigh in!

Can we talk a little more about FD-209 forms, the official forms that FBI agents submit every time they interact with a confidential informant? I love FD-209 forms. I’m probably the number one fangirl of FD-209 forms these days…but not just any FD-209 forms. I’m unquenchably thirsty for the FD-209 forms concerning a confidential informant known as LV 366-PC. 

To recap: LV 366-PC was an informant for the FBI’s Las Vegas Field Office who, in 1970, gave the FBI information concerning the whereabouts of a mobster named Marty Fenster. I would love to get my hands on LV 366-PC’s FD-209 forms because I also think that, in 1973, LV 366-PC gave the FBI information about Ron Tammen. 

On May 27, 2026, I submitted a FOIA request for LV 366-PCs FD-209 forms. Just six days later, two of which fell on a weekend, the FBI refused my request. I’m not gonna lie—their words were intimidating.

In their reason for their denial, they cited subsections D and E of exemption 7, which applies to records compiled for law enforcement purposes. The acting section chief then spelled out the harm that I’d be inflicting if those FD-209s ever got into my impertinent little thirsty fangirl hands. 

“Release of records responsive to your request would reveal confidential informant identities and information,” which applies to exemption 7D, “expose law enforcement techniques,” which applies to exemption 7E, “and endanger the life or physical safety of individuals.” That last one was the kicker, since it went above and beyond what exemptions 7D and 7E say. Seriously, if that last part were true, then they could have, and probably should have, cited exemption 7F, which deals with that very issue. 

Someone. Could. DIE.

You know what? I think they’re bending the truth. You know what else? I think they’re flouting the law. 

First, a little background: 

On March 15, 2022, in celebration of Sunshine Week, then-Attorney General Merrick Garland provided guidelines to all federal agencies with regard to the FOIA Improvement Act of 2016. In it, he addressed the excessive use of exemptions by staff members when responding to FOIA requests. The goal, both in 2016 and 2022, was to improve openness in government.

“Information that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure,” he wrote. “In case of doubt, openness should prevail,” he added.

After the release of his guidelines, the Department of Justice’s Office of Information Policy (OIP) issued additional guidance, especially pertaining to the foreseeable harm standard, a term that was left open to interpretation. They advised: “The foreseeable harm analysis should be made on a case-by-case basis and agencies should individually consider the applicable harms for each record or similar category of records.”

They then cited the 2021 decision of the Court of Appeals for the District of Columbia, which had ruled that federal agencies need to “‘articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.’” Also: agencies can’t just say in general terms that something bad “could” happen if the information were released. They need to provide information supporting the conclusion that it “would” happen, which is ostensibly why the acting section chief told me that the lives or physical safety of individuals would be in danger if they released the FD-209s for LV 366-PC after all these years.

I think the FBI is bending the truth. 

Reason 1: How can people’s lives be at stake if everyone is dead?

The subject of LV 366-PC’s conversations with the FBI in 1970—mobster Marty Fenster—is long dead, and two other mobsters who were mentioned along with Fenster—Frank Roger Milano and Pete Licavoli—are dead as well. Milano, the youngest, died in 2004; Fenster died in 1996; and Licavoli, the highest ranking and most well-known of the three, died in 1984. And the informant? Although it’s impossible to know if he’s alive or dead since we don’t know who it is, my money is on the latter. If my theory holds that LV 366-PC is Robert Maheu, then we know for sure that he’s dead, since Maheu died in 2008. But even if it’s not Maheu, chances are good that LV 366-PC is also dead since he was hanging out with men who were in their 60s 56 years ago. 

But honestly? Whether the informant is alive or dead doesn’t much matter because the most likely people to be mad at the informant for talking to the FBI about Marty Fenster’s whereabouts are no longer a threat. In fact, I’d argue that the FBI should feel confident that if they were to give me LV 366-PC’s FD-209 forms concerning Marty Fenster’s whereabouts, literally no one would be in danger because the people whom the FBI considered dangerous are permanently out of the picture. You feel me?

Reason 2: Some confidential informants are treated more confidentially than others.

As I mentioned in my last post, the FBI has released dozens if not hundreds of FD-209s in the past. Some have only the identifying information redacted, while others are almost redaction-free. Many of the FD-209 forms that I’ve found online, available on the Mary Ferrell Foundation website, are from the FBI’s investigation into the assassination of Dr. Martin Luther King, Jr. 

So I just have to ask: how is it that the FBI feels that the person who told them 56 years ago about the whereabouts of deceased mobster Marty Fenster and two of his also-deceased associates is deserving of a far greater degree of protection than what informants who spoke with them about the assassination of MLK received? Can someone from the FBI please explain? 

Here are several of the many FD-209s that I found among the MLK records that are available on the Mary Ferrell Foundation website. The bottom one even concerns Carlos Marcello, who, it could be said, was most definitely a person who would “endanger the life or personal safety of individuals” if he ever got wind that they were talking to the FBI.

Reason 3 (my favorite): The FBI has released FD-209s on other informants who’d provided information about Pete Licavoli. Why won’t they do it for me?

If you were to line up the three mobsters whom LV 366-PC mentioned to the FBI in 1970—Marty Fenster, Frank Milano, and Pete Licavoli—Licavoli would stand out as the most dangerous. He’d been a mob boss in Detroit before moving to Arizona in the 1940s. Have you heard of the notorious Purple Gang? That’s the group he headed up, supplying liquor to Detroit, Toledo, and Cleveland during Prohibition. He was said to be involved in the St. Valentine’s Day Massacre. Senator Estes Kefauver, who’d led Congressional hearings on organized crime in 1950-51, said that Licavoli was “one of the most cold-blooded and contemptuous characters to appear before our committee.” 

And yet…and YET…the FBI had no problem releasing the FD-209 forms for two, and possibly three, other confidential informants who’d squealed on Licavoli, not to mention a slew of other mobsters. Here are links to the full records, which I obtained from the Mary Ferrell Foundation website:

LV 25-C (Las Vegas Field Office)

DE 868-C-TE (Detroit Field Office)

DE [redacted]-C-TE (Detroit Field Office—it’s possible that this is the same informant as DE 868-C-TE)

So I have to ask a similar question to the one I asked before: how is it that the FBI feels that the person who told them 56 years ago about the whereabouts of deceased mobster Marty Fenster and his friends Frank Milano and Pete Licavoli is deserving of a far greater degree of protection than the informants who’d told them about Pete Licavoli and all those other mobsters?

I think the FBI is flouting the law. 

According to Attorney General Garland, the whole point of implementing the foreseeable harm standard is to ensure that exemptions are used less, not more. You heard the man: when in doubt, “openness should prevail.”

Isn’t it just like the FBI to take that well-meaning guidance and turn it around so that, not only can they use the same exemptions they always have, but they can now defend their stance even more intimidatingly than before? They *appear* as if they’re following the letter of the law, when evidence suggests they aren’t.

Reason 1: After the Garland memo, exemption use increased.

One might predict that Merrick Garland’s guidelines would immediately result in fewer exemptions claimed by the FBI, but, for at least two-plus years, that’s not what happened.

Included below is a bar chart for exemptions 7D (re: confidential informants) and 7E (re: law enforcement techniques) that the FBI claimed for fiscal years 2020 through 2025. After Garland’s guidance in 2022, 7D and 7E exemptions actually went up, not down, with 2024 reaching peak levels. 

With that said, there was a sizable drop in 2025, where the FBI claimed roughly 1000 fewer 7D exemptions than 2024’s levels and 7E exemptions dropped to slightly below 2022’s levels. This decrease could be partially due to the 43-day government shutdown in 2025, since the FBI processed roughly 2000 fewer requests that year than in 2024.

Still, when we look at the percentage of processed FOIA requests that received exemptions, 2025 seems to be an outlier. According to data compiled by the website FOIA.gov, 7D exemptions accounted for roughly 10% of all FOIA requests processed by the FBI for the years 2020-2023. Fiscal year 2024 experienced a higher percentage of 7D exemptions, at roughly 12%, but then 2025 demonstrated a significantly lower percentage, at 7.5%. Likewise, 7E exemptions were more in the 23-24% range for all FOIA requests for the years 2020-2023. This means that nearly one-quarter of all FOIA requests received by the FBI were slapped with a 7E exemption. In 2024, the percentage shot up to 27%, but in 2025, it fell back down to 23.8%.

Maybe we’re witnessing a downward trend in 7D and 7E exemptions—let’s hope so. I, for one, can’t wait to see the 2026 numbers when they’re in. Still, it does make me wonder: if the FBI is finally making an effort to limit the number of 7Ds and 7Es that they dole out to FOIA requesters, how is it that they’ve determined LV 366-PC and his friends Marty Fenster, Frank Milano, and Pete Licavoli to be the line that shouldn’t be crossed? And why was it OK for them to cross that line the other three times for Pete Licavoli? 

Reason 2: There’s a fool-proof way to release FD-209 forms while protecting information that’s exempt from disclosure. The FBI isn’t using it.

Merrick Garland said something else in his guidance that I think is applicable to my case. In essence, he told federal agencies not to throw the baby out with the bathwater. OK, he didn’t use that phrase per se, probably because A) it’s bizarre and disturbing, and B) has anyone ever done that?? Merrick chose these words instead, quoting from the FOIA Improvement Act of 2016:

“When an agency determines that it cannot make full disclosure of a requested record, FOIA requires that it ‘consider whether partial disclosure of information is possible’ and ‘take reasonable steps necessary to segregate and release nonexempt information.’”

This is exactly what I’d suggested that the FBI do when I disputed their response, asking them to redact the portions that are exempt from disclosure and to release the rest. They didn’t care for my suggestion. Instead, they insisted that they’d followed the FBI’s standard operating procedures and stuck with their original response, Soup Nazi style—no FD-209s for you.

But the FBI has elected to use the partial-disclosure method in the past. Here are two examples in which the FBI redacted the identifying information on FD-209 forms and released the rest to the public. You can see other places where information has been blacked out under the MLK and Licovoli FD-209s above.

Which leads me to this question: how can the FBI say that they’re following standard operating procedures when their operating procedures vary so drastically, day to day and FOIA requester to FOIA requester?

Reason 3: When in doubt, the FBI appears to choose obstruction over openness.

As I mentioned earlier, the foreseeable harm standard leaves much open to interpretation, and OIP has given agencies a choice in how they should conduct their analysis. They can consider each record individually or they can analyze similar records as a group. They get to choose which. 

In addressing my request, it appears as if the FBI chose to lump all of LV 366-PC’s FD-209 records together, which resulted in a broad and vague and intimidating explanation. Remember how they’re supposed to “‘articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.’”? The Court of Appeals for the District of Columbia wants specifics, please. But I didn’t get any of those. I received no explanation as to how people would be endangered by the “information contained in the material withheld,” whether we’re talking about the Marty Fenster/Frank Roger Milano/Pete Licavoli case or any other case the informant helped them out with.

Also, if FOIA staffers were truly following Merrick Garland’s rule of thumb, “In case of doubt, openness should prevail,” wouldn’t they want to review each FD-209 record individually in hopes that they might be able to give me something—anything—that would be responsive while not putting anyone in harm’s way?

Instead, they gave me a stern no and an implied “how dare you?”

I don’t think Merrick Garland would approve.

I’ll let you know how the OIP rules on my appeal. 

SINCERE THANKS TO THE MARY FERRELL FOUNDATION FOR MAKING ALL OF THE ABOVE RECORDS AVAILABLE.