The Freedom of Information Act was designed to empower citizens to hold their government accountable. But evidence suggests the Federal Bureau of Investigation (FBI) has quietly adopted a practice that turns that principle on its head: labeling some of the people who file Freedom of Information Act (FOIA) requests as “vexsome.”
In effect, the agency has created a FOIA-specific blacklist. Yet when asked, it denies having done so.
The FBI has maintained what it calls a list of “vexsome” FOIA filers for years. The label itself is odd — the proper term would be “vexatious” — but the implication is clear enough. Certain individuals and organizations who file frequent records requests are flagged internally as troublesome.
That practice is deeply at odds with the very text of the Freedom of Information Act. FOIA exists because the late Representative John Moss (D-CA) spent 10 years encountering delays, evasions, and outright refusals by federal agencies and departments to give him information he needed for oversight purposes. Moss understood that many citizens and watchdog groups asked the same kind of persistent questions of executive branch officials as he did, but they lacked a statutory basis to force such information disclosures. It’s why Moss worked so hard to get FOIA into law. Investigative journalists, transparency organizations and researchers often file dozens — sometimes hundreds — of requests in pursuit of public records. The law anticipates and protects that behavior.
There is nothing in the FOIA statute authorizing federal agencies to maintain lists of “vexatious” requesters or to single out particular citizens for special scrutiny because they use the law frequently. The statute’s presumption is exactly the opposite: that access to government records belongs to the public, and that agencies must justify withholding them.
Yet internal records obtained through FOIA requests by transparency researcher John Greenewald, who runs the document archive The Black Vault, show that the FBI has indeed categorized certain requesters in this way.
The Cato Institute learned this firsthand when the FBI labeled it a “vexsome” FOIA requester during the previous administration. More recently, when I filed a FOIA request seeking records explaining how the FBI defines or uses that designation, the Bureau responded that it could find no records responsive to the request — even though records labeling individuals or groups as “vexsome” were previously available to Greenewald.
The FBI cannot both maintain a category of “vexatious” requesters and simultaneously claim no records exist describing how that category is used. That’s why Cato has filed a new FOIA lawsuit to force the FBI to produce the records at issue.
The deeper problem is what such labeling represents. FOIA was enacted in 1966 to prevent federal agencies from deciding which members of the public deserve access to government information. Congress deliberately structured the law so that requests are judged by their legal merits — not by who submits them or how often they do so. Indeed, the statute has been updated multiple times over the past 60 years in response to agency or department tactics designed to evade the statutes’ very purpose.
Once agencies begin categorizing requesters as nuisances or troublemakers, they create a de facto enemies list composed of the very taxpayers and citizens they are sworn to serve. A system meant to promote transparency risks becoming one in which the government quietly tracks and stigmatizes those who seek to hold it accountable for its conduct — or misconduct.
Agency and department heads routinely claim that FOIA is administratively burdensome — yet they never ask Congress for line-item appropriations to ensure processing is quick and efficient. Agencies process hundreds of thousands of requests each year — and in tens of thousands of cases invoke one or more of FOIA’s nine exemptions to keep information secret that in most cases should never have been withheld in the first place. Those tactics alone force requesters to retain lawyers capable of litigating through the delays, obfuscations, and denials. The FBI’s “vexsome FOIA filer” program takes this bureaucratic game to a whole new level.
Hellbound and Down 