PHOTO: DECLAN MCCULLAGH

David L. Sobel [right], a Washington, D.C., lawyer, has a 25-year track record of successfully litigating requests to obtain documents from the U.S. government. His biggest coup was winning access to records relating to Carnivore, the FBI's plan to track Internet communications, for the Electronic Privacy Information Center, in Washington, D.C.

So when we needed a key report that dissected the failure of the FBI's US $170 million Virtual Case File software debacle [see "Who Killed the Virtual Case File?" in this issue], we knew where to turn.

We wanted to study a report by Aerospace Corp., in El Segundo, Calif., which the FBI hired to analyze specific errors in the code delivered to the bureau in December 2003 by Science Applications International Corp., in San Diego. While the report circulated on Capitol Hill, the FBI refused to release it to us.

In response, this past April, IEEE Spectrum, with Sobel's help, did what almost 11 000 individuals, media outlets, and organizations had done in 2004: we filed a Freedom of Information Act request with the FBI. The Freedom of Information Act of 1966 (amended in 1996) protects the public's right to obtain records created and kept by federal agencies.

We asked the FBI to provide the report on an expedited basis, so we could examine it as part of this month's feature story. In May, the FBI informed us that owing to its backlog, it would require 13 months to determine whether to release the document.

Sobel took our case to court. But as of press time, Judge James Robertson of the U.S. District Court for the District of Columbia had not yet decided whether the FBI has a sound legal basis for refusing to expedite the release of the report.

"The FBI's refusal to expedite this request is probably the most outrageous I have ever encountered," Sobel says. "Even as it was trying to spin the VCF situation by issuing press releases, the FBI was disputing our claim that the report's contents were 'newsworthy.' The bureau is clearly trying to manage the coverage of an embarrassing issue."

We couldn't agree more. test