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Court rules for AP in reporter impersonation document fight

December 15, 2017

WASHINGTON (AP) — A federal appeals court has sided with reporters in a court fight over documents that began after an FBI agent pretended to be an Associated Press journalist while investigating bomb threats at a Washington state high school.

When the ruse became public in 2014, the AP and a press freedom organization attempted to get government records about the case and any other times FBI agents have impersonated journalists. After initially getting no records from the FBI, the AP and Reporters Committee for Freedom of the Press sued. Though some documents were produced, the organizations argued that the agency’s response was inadequate.

In an opinion issued Friday, a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed. Judge David Tatel wrote for himself and colleagues Brett Kavanaugh and Laurence Silberman that the FBI “failed to demonstrate” that it conducted a search “for the requested records, using methods which can be reasonably expected to produce the information requested.” The opinion reverses a lower court ruling in favor of the government that the FBI had “conducted a good-faith, reasonable search.”

The appeals court sent the case back to the lower court. The FBI will have to search for additional records located in the office of the FBI’s director and better explain how it conducted its overall document search, said Reporters Committee for Freedom of the Press lawyer Katie Townsend. She said her organization was “obviously really pleased” with the decision.

The Department of Justice declined to comment.

The lawsuit stems from a 2007 investigation into bomb threats emailed to Timberline High School in Lacey, Washington, which is near the state capital of Olympia. As part of the investigation, an FBI agent communicating with a suspect in the case portrayed himself as an AP reporter. The agent sent the suspect a link to a fabricated AP news article, a link that when clicked allowed the FBI to pinpoint the suspect’s location.

After the FBI’s actions came to light in 2014, resulting in an outcry from the AP and other news organizations, both the AP and the Reporters Committee for Freedom of the Press submitted records requests to the government under the Freedom of Information Act. The organizations asked for additional information about the Timberline High School incident, information about other instances where the FBI impersonated a member of the news media, and information about policies or guidelines governing the FBI’s impersonation of members of the media.

After getting no records, the organizations sued in 2015. The government ultimately turned over about 190 pages of records, more than half of those pages with redactions.

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Follow Jessica Gresko on Twitter at http://twitter.com/jessicagresko

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