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February 10, 2009

FOIA terror

Prominent animal rights activist Dr. Neal D. Barnard began having difficulties traveling starting in September 2003. Serious difficulties.

On at least 17 occasions between 2003 and 2007, Barnard reports having been "detained, questioned and/or searched at various airports" before or after international trips. He says he noticed the phrase "Terrorist Organization Member: Caution" on airport security computer screens, The founder of the Physicians Committee for Responsible Medicine, an activist opposed to live-animal testing, Dr. Barnard wanted to find out what was going on. What was that "terrorist organization member" designation all about? He began filing Freedom of Information Act requests.

Welcome to FOIA Hell, Dr. Barnard.

On Monday, Dr. Barnard's ongoing search for information about his travel travails came to an apparent end, when U.S. District Judge Colleen Kollar-Kotelly dismissed his lawsuit challenging the Department of Homeland Security's refusal to hand over some documents.

The FOIA requests, and subsequent litigation, did succeed in illuminating some behind-the-scenes action as well as the typical muck-ups that make FOIA so much fun. Barnard first filed his FOIA with Customs and Border Protection, which erroneously advised him to take his problem to Immigration and Customs Enforcement. He did. ICE told him in August 2006 they had no relevant documents. He and attorney Daniel Kinburn sued. In November 2006, ICE discovered -- whoops! -- it had discovered six pages of documents concerning Barnard, but they were exempt from disclosure.

The ensuing litigation revealed that the feds had, at one time, "an open and pending criminal investigation" relating to Dr. Barnard, and that is why the documents couldn't be released. That's intriguing in itself, given the periodic controversy that surrounds animal rights activism.


On Jan. 29, 2008, Judge Kollar-Kotelly accepted Homeland Security's arguments and dismissed Barnard's suit. On Feb. 4, ICE informed the judge it had discovered still more material. Turns out, among other things, Customs and Border Enforcement did have several hundred pages of documents relevant to Barnard. Sorry about that, Dr. Barnard! By then, he was no longer a subject of an investigation. Barnard still sought release of the documents, hoping to find out, among other things, the extent of government monitoring that was taking place.

But in the ruling this week, Judge Kollar-Kotelly concludes the documents were properly withheld in order to protect law enforcement

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mike

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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