Gizmodo finds it unimaginable that the Federal Bureau of Investigation could do a search of “Roger Ailes” in its files and fail to turn up anything related to the federal government’s investigation of Fox News. On Thursday, Gizmodo asked a New York judge to rule that the FBI hasn’t done an adequate search.
When high-profile individuals die, it’s often routine that media outlets file requests under the Freedom of Information Act for government materials on the deceased. Gizmodo did just that upon the May 2017 death of Ailes, the founder and former CEO of Fox News who resigned the previous year amid pervasive allegations of sexual harassment.
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The FBI acknowledged the request but failed to provide any documents. In August 2017, Gizmodo filed a lawsuit against the FBI. Thereafter, the FBI provided 113 pages of partially redacted documents that revealed certain things including a gun arrest in 1974 and how Ailes was interviewed by the FBI just four days after a 1981 attempted assassination of President Ronald Reagan.
Gizmodo wasn’t satisfied.
What about the much-publicized federal investigation of Fox News (first reported by The Hollywood Reporter), the one over the company’s pattern of settling sexual harassment lawsuits on behalf of Ailes? Gizmodo specifically referred to the probe in its FOIA request.
Interestingly, in response to the lawsuit, the FBI didn’t cite any exemption for an active criminal investigation. (Speculate as you wish.) Instead, the FBI argued that it had met its obligations under FOIA, conducted an adequate search and had no reason to conclude otherwise.
“The Court should not be swayed by an argument by Plaintiff that news reports of an investigation of Fox News should have prompted the FBI to broaden its search for references to Ailes outside its indexing system,” stated a summary judgment brief prepared by the U.S. Attorney Office in New York. “The article that Plaintiff cited in requesting a fee waiver referred to a Department of Justice investigation and communications between the U.S. Attorney’s Office and Fox News, with no mention of the FBI. Plaintiff may claim that the FBI necessarily must be involved in any Department of Justice investigation; however, such a conclusion is entirely speculative and does not constitute the type of ‘clear and certain lead’ that an agency is obligated to pursue in responding to a FOIA request.”
Gizmodo, represented by attorney Daniel Novack, now has brought its own summary judgment motion, which can be summed up: C’mon, give me a break.
Or as the plaintiff puts it, “As this Court is no doubt aware, the FBI is, in its own words, ‘the principal investigative arm of the U.S. Department of Justice.’ ‘What is the FBI?’ FBI.gov, available at https://www.fbi.gov/about/faqs/what-is-the-fbi. It is highly implausible the principal investigative arm of the DOJ is sitting out a highly significant and large-scale inquiry and thus possesses no relevant documents whatsoever. Put simply, the FBI has ample notice of responsive documents and knows precisely where to look.”
