US Court denies request to question Tinubu over alleged cyberattacks in FOIA case

President Bola Tinubu

A United States federal court has rejected a request by Aaron Greenspan, an American transparency activist, to question President Bola Tinubu and a lobbying firm, DCI Group, over alleged cyberattacks on his website in an ongoing lawsuit seeking government records relating to the Nigerian president.

The United States District Court for the District of Columbia, in a ruling on Friday, held that the proposed discovery was not sufficiently relevant to the underlying Freedom of Information Act (FOIA) case involving the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA).

The court also rejected Mr Greenspan’s motion for summary judgment, a separate request by non-party Karl Von Batten to file an amicus curiae brief, and Mr Greenspan’s request for judicial notice.

Mr Tinubu’s lawyers, Christopher Carmichael and Oluwole Afolabi, said the ruling reinforced the need to keep the proceedings focused on the legal issues before the court.

“The Court’s decision makes clear that this Freedom of Information Act proceeding cannot be used to pursue discovery unrelated to the legal questions before it,” Mr Carmichael said.

The presidency issued a statement on Saturday confirming the court’s decision, as well as Messrs Carmichael and Afolabi’s reactions.

“While the underlying FOIA issues remain before the Court, these rulings establish important procedural boundaries and clarify which matters are appropriate for consideration in this litigation,” Mr Afolabi said.

In September, Mr Greenspan asked the court for permission to put four questions to Mr Tinubu over alleged denial-of-service attacks on PlainSite, his legal research website.

In his filing, Mr Greenspan argued that the Nigerian president had not denied that he, his government or anyone acting on his behalf, including DCI Group AZ, LLC, was involved in the alleged attacks.

“If that is so, the four requests for admission can be answered in minutes,” Mr Greenspan wrote.

However, the filing did not establish that Mr Tinubu or DCI Group carried out the attacks, nor did it provide evidence identifying those responsible.

In opposing the request, Mr Tinubu argued that “there is no independent verification” of the alleged attacks.

The latest ruling denies Mr Greenspan’s request to pursue the proposed discovery against Mr Tinubu and DCI Group in the FOIA litigation.

Mr Greenspan and Nigerian journalist David Hundeyin submitted a series of FOIA requests to US government agencies between 2022 and 2023, seeking records relating to Mr Tinubu and Abiodun Agbele.

The requests covered records from a joint investigation involving the FBI, DEA, Internal Revenue Service (IRS) and US attorneys’ offices in Illinois and Indiana. Mr Greenspan said the records concerned charging decisions linked to the activities of a Chicago heroin ring that operated in the early 1990s.

Other individuals named in the requests included Lee Edwards and Mueez Akande.

The agencies initially issued what is known as a “Glomar response”, a legal position that allows government agencies to neither confirm nor deny the existence of records when disclosure could reveal protected information.

Mr Greenspan challenged the responses before the US Department of Justice’s Office of Information Policy, but the agency upheld the decisions.

He subsequently filed the lawsuit on 12 June 2023 against the FBI, DEA, IRS, Executive Office for US Attorneys and Department of State. The Central Intelligence Agency was later added as a defendant.

The court also allowed Mr Tinubu to participate in the proceedings as an intervenor.

The latest ruling comes amid a separate dispute over the release of records relating to a 1993 investigation involving Mr Tinubu.

The FBI submitted records to Judge Beryl Howell of the US District Court for the District of Columbia on 28 August, following a court order. The documents remain under seal pending the court’s determination.

According to court filings, the records were submitted “under seal, ex parte, in camera”, meaning they were provided for the judge’s private review and were not made available to Mr Greenspan or the public.

The FBI and DEA have produced 399 pages of records, although some portions were redacted under exemptions in US law. Mr Greenspan is challenging the redactions and seeking wider disclosure.

The dispute centres partly on the forfeiture of $460,000 by Mr Tinubu to the US government in 1993 after American authorities linked the funds to proceeds of narcotics trafficking, according to documents cited in the case.

Mr Tinubu has argued that the requested documents could contain confidential tax information and law enforcement records protected under US privacy laws.

His lawyers also argued that releasing investigative files could infringe on his privacy rights, even where some information about the 1993 forfeiture proceedings had previously entered the public domain.

“Regardless of the prior disclosure in the forfeiture proceeding, Intervenor retains a privacy interest in potential disclosure of the investigative files sought by Plaintiff,” his lawyers argued.

The FBI and DEA have also defended their decision to withhold or redact portions of the records, citing legal protections for grand jury proceedings, attorney-client communications, law enforcement material, personal privacy, confidential sources and investigative techniques.

Mr Tinubu has separately invoked a FOIA exemption relating to personal privacy.

The records submitted to Judge Howell remain subject to the court’s determination of whether the agencies were legally entitled to withhold or redact the material.