Gearing back up on the FOIA front

Last year, I filed a Freedom of Information Act lawsuit against the State Department in an effort to get the powerpoint which served as the foundation of Colin Powell's controversial February 5, 2003 speech to UN before the Iraq War. The neocons in the Pentagon's Office of Special Plans created a "Chinese menu" (to use their words) of possible rationales for invading Iraq, and it was presented by Scooter Libby to Colin Powell and other administration officials on January 25, 2003. Powell was to choose a combination of rationales to present to the UN, the way a patron chooses from the dozens of items on a Chinese restaurant's menu.

U.S. District Judge Ellen Segal Huvelle granted the State Department's motion for summary judgment, upholding the agency's claim that it had conducted an adequate search of its records, despite not finding a single document related to the speech. It should be noted that my request was intentionally broad, including not just the PowerPoint itself, but also any emails, notes and other documents referring to the presentation. The McClatchy blog Suits & Sentences had this to say about the lawsuit's outcome:

This seems surprising. One would think memos -- of the CYA variety, if nothing else -- would have papered the building. Or, maybe this was one of those presentations that was, you know, strictly off the books?

While it is shocking that the State Department could not find a single document related to the presentation, it is very difficult to overcome a judge's determination that an agency has conducted an adequate search. Essentially, a plaintiff has to have evidence that the FOIA officer has acted in bad faith, and I certainly did not have that. Is it possible that these documents were intentionally removed before the State Department officials' files were archived? Definitely. But FOIA does not extend to all documents that ever existed, it extends only to responsive documents found through an adequate search.

The decision came down in October 2009, and during the last 2-3 months, I've filed a spate of new FOIA requests. Like the State Department FOIA request, the new ones have an extensive argument backing my request for the media fee waiver (which was extended to bloggers by the Open Government Act of 2007, but is still elusive in practice). The documents sought in the pending requests include the "Chinese Menu" (from the Pentagon, rather than the State Department), and documents related to the BP oil spill in requests from the MMS and Federal Maritime Commission.