Criminal Justice & the Rule of Law

Climate Change at the FBI: Why We Sued the Bureau Last Week

Scott R. Anderson, Benjamin Wittes
Monday, May 21, 2018, 5:24 PM

On May 18, we filed a lawsuit against the FBI under the Freedom of Information Act for the results of the bureau’s most recent “climate survey,” an internal study that the FBI conducts each year.

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On May 18, we filed a lawsuit against the FBI under the Freedom of Information Act for the results of the bureau’s most recent “climate survey,” an internal study that the FBI conducts each year. This suit follows a request that we filed last month, after a year that has seen America’s premiere law enforcement agency insulted and criticized by the president, his supporters, and allied members of Congress—all of whom seem anxious to discredit the FBI in light of its role in investigating alleged Russian interference in the 2016 elections. We wanted to get a sense of how these developments have affected morale within the FBI and whether the bureau’s employees believe that FBI director Christopher Wray is doing everything he can to ensure that they can do their work fairly and effectively. And at least in prior years, the climate survey has presented FBI employees with several questions that are directly relevant to these questions.

The climate survey came up in a discussion that one of us had with former FBI director James Comey earlier this month. Comey described the important role the survey played when he led the FBI, stating:

[The climate survey] is a very important tool, and I drove it into every conversation in the FBI about leadership and development. ... [I]t's an anonymous survey where around 80 percent of the FBI's employees participate and it takes them a long time to fill it out because it gathers data from a rich set of vectors. So that would be the most reliable [gauge of current FBI morale].

When asked which responses were most probative of the current atmosphere within the FBI, Comey noted:

There's a measure about pride in the organization and its mission. There's a measure about confidence in senior leadership, more broadly than just the director. There are measures about the regard in which we believe we're held by the people we interact with in the course of our job. Those sorts of things would be the most important to me [as FBI director].

This exchange further underscores what an important tool the climate survey can be. For that reason, we would expect the current FBI leadership to complete and disseminate the results of this year’s survey—which was reportedly administered in February and March—in a timely manner. At that point, the survey results would also presumably become available to us through FOIA, as with prior climate surveys.

Not everyone at the FBI appears to agree, however. More than a month and a half after we initially filed our request, we are still awaiting the climate survey results. While we formulated our request as narrowly as possible—explicitly limiting it to a specific document that the FBI has released publicly for the past several years—we were told that it raised “unusual circumstances” that would “delay [the FBI’s] ability to make a determination” for an unspecified amount of time past the 20 business days allowed by statute. Later, we received a letter indicating that our request had been denied “expedited processing” as it does not relate to “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence”—even though the climate survey has questions in it that explicitly address matters of governmental integrity, and the survey as a whole has been a frequent subject of extensive media coverage in prior years.

All told, we don’t know what the cause of the delay is. But at this point, the FBI’s statutory timeline for providing us a response has run out. So with help from our friends at Protect Democracy, we filed suit on Friday seeking to compel the agency to provide a response to our FOIA request. The complaint is below. As always, we will keep Lawfare readers informed of any further developments—and hopefully we’ll be able to share the results of this year’s climate survey with you soon.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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