FOIA Delivers: NLEAD Data Reporting

Data show Prison & Border Guards Dominate 'Accountability Database'

Popping in briefly to share my first piece for The Appeal - an outlet I’ve loved reading since they set up shop. It’s about the now-defunct National Law Enforcement Accountability Database (NLEAD) President Biden established in 2022. Federal agencies queried NLEAD more than 9,000 times between January and August 2024, according to the DOJ’s Bureau of Justice Statistics (BJS). These queries informed hiring, promotion, and retention decisions, as well as training, supervision, and oversight policies, DOJ says. Around 5200 instances of misconduct (and a handful of commendations the offending officers received) were submitted by federal law enforcement agencies. The overwhelming majority of misconduct - roughly 88% - came from DOJ and DHS. Within that dataset, BOP and CBP represented about 75% of the entries. The data seems to be on the brink of erasure in light of the Trump action vacating Biden’s EO; the DOJ refused to comment on whether it’s subject to the Federal Records Act.

So, where to go from here?

I FOIA’d the contents of the database in December 2023 because, based on my reading of FOIA decisions like PLN v. Lappin, I believed the names, agencies, and positions of federal law enforcement officers who were convicted of crimes, found culpable for serious misconduct, relieved of law enforcement duties, or who resigned or retired amidst misconduct investigations aren’t something the government gets to keep secret. I reached this belief based in large part on my reading of the DOJ’s FOIA Guide about Exemption 6. Exemption 6 allows the government to withhold certain information from FOIA requestors if it appears in medical, personnel, or similar files and its release could reasonably be expected to cause an unwarranted invasion of personal privacy. But there’s a balancing test: the individual’s non-de minimis right to privacy goes on one side, the public’s right to know goes on the other. (See FN10 of the DOJ FOIA guide and accompanying text). If information (such as a criminal conviction reported on a public-facing docket) is already in the public domain, no privacy interest exists. So at least that category of records would seem to be prima facie subject to disclosure, even without balancing. We can take as a given that LEOs general enjoy a privacy interest in having their names (though probably not their agencies or positions within those agencies ) withheld. So that’s two more categories of information we should have that we don’t.

What of the public interest? From DOJ (p. 44 of the pdf, 460 of the guide):

A central purpose of the FOIA is to ‘check against corruption and to hold the governors accountable to the governed.’ fn 165 Indeed, disclosure of information that would inform the public of violations of the public trust serves a strong public interest and is accorded great weight in the balancing process. fn 166 As the Tenth Circuit has held, ‘[t]he public interest in learning of a government employee's misconduct increases as one moves up an agency's hierarchical ladder.’ fn 167 As a general rule, demonstrated wrongdoing of a serious and intentional nature by a high-level government official is of sufficient public interest to outweigh almost any privacy interest of that official”. fn 168

By this logic, any NLEAD entry about a high-level government official (which I’d think we can provisionally define as a second-level supervisor or higher) should be turned over. But all of it has been withheld.

That leaves mid-and low-level employees. At the very least, DOJ is going to have to show its work. And when it does, DOJ tells us, “[t]he D.C. Circuit has held that there is not likely to be strong public interest in disclosure of the names of censured employees when the case has not ‘occurred against the backdrop of a well-publicized scandal’ that has resulted in ‘widespread knowledge’ that certain employees were disciplined.” (DOJ FOIA Guide pdf p. 46-47)

Remove all the negative language from those sentences and you quickly get to the conclusion that officers found culpable for misconduct or who resigned or had their LE privileges removed during scandals like FCI Dublin, family separation, or other serious incidents are, according to DOJ, presumptively subject to having basic information disclosed in response to the NLEAD FOIA.

Then there’s the most recent decision on the issue from the D.C. Circuit in Human Rights Defense Center v. U.S. Park Police. The appeal involved the names of three park police officers who were the subject of payouts to settle lawsuits by members of the public for rights violations. Importantly, the government claimed at oral argument (and at least one judge seemed to agree) that these were just nuisance-value settlements, and they don’t indicate wrongdoing. Ultimately, the court held the government hadn’t met its initial burden of showing there is a substantial privacy interest in the officers’ names. HRDC consequently got the district judge reversed and won its appeal.

(There’s also a VERY important holding on the inability of a district court judge to order a FOIA requestor to return records the agency inadvertently hands over, sometimes called a “clawback.”)

Ultimately, I think out of the 5,200 instances of law enforcement officer misconduct in the NLEAD FOIA database, the public is legally entitled to nearly all of the names and titles of officers. DOJ gave us none. And as a wise attorney (I think it was Mike Wishnie, but I cannot be sure) once told me, “there is something very special in the law about the number zero.”

This isn’t even the end of the inquiry the court would need to do, either. Even if the government can establish some officer names (and titles?) qualify for Exemption 6, it’s still going to have to engage in an independent analysis that identifies the foreseeable harm that will befall the government (not the officer) if the misconduct gets disclosed. Frankly, I’d like to read that part of the declaration, and make some DOJ lawyer stand up in court and defend it.

But it’s more likely than not I’ll never get the chance. It seems DOJ is in the process of deleting the data, if reporting from the Washington Post is to be believed. I have asked for it to be preserved at least until my FOIA appeal is resolved. I asked for confirmation they won’t destroy the records, or notice if they plan to destroy them, so that I can whip up a pro se complaint and file it with a TRO seeking an order preserving the status quo — which is that FOIA records are on a Federal Records Act schedule which requires their preservation for the life of the FOIA. Something tells me all of these laws will not protect or preserve the public’s access to these records. If they want them destroyed, they’ll just destroy them. Just ask the ACLU how the motion to hold the CIA in contempt after they destroyed 92 interrogation tapes during a FOIA proceeding turned out.

Maybe, however, there’s someone in DOJ who realizes that destroying records subject to a Federal Records Act FOIA hold is something that lands you a potential criminal referral, or finding of misconduct that would follow you around for the rest of your career, if it’s discovery. Not to worry, though. There’s no national database of federal officials faced such consequences anymore.

I can’t even get OpenAI to imagine what that would look like: