The United States District Court for the District of Columbia has ordered top US law enforcement agencies to release confidential information generated on President Bola Tinubu during a “purported federal investigation in the 1990s.”
The judge, Beryl Howell, made the order on Tuesday, saying that protecting the information from public disclosure is “neither logical nor plausible.”
An American, Aaron Greenspan, had filed a suit in June 2023 under the Freedom of Information Act (FOIA) against the Executive Office for US Attorneys, Department of State, Federal Bureau of Investigation(FBI), Internal Revenue Service (IRS), Drug Enforcement Administration (DEA), and the Central Intelligence Agency (CIA).
In his complaint, Mr Greenspan accused the law enforcement agencies of violating the FOIA by failing to release within the statutory time “documents relating to purported federal investigations into” President Tinubu and one Abiodun Agbele.
Between 2022 and 2023, Mr Greenspan filed 12 FOIA requests with six different US government agencies and components seeking information about a joint investigation conducted by the FBI, IRS, DEA, and the US Attorney’s Offices for the Northern District of Indiana and Northern District of Illinois.
According to Mr Greenspan, the records being requested involved charging decisions on the activities, including money laundering, of a Chicago heroin ring that operated in the early 1990s.
In each FOIA request, the American sought criminal investigative records about four named individuals “allegedly associated with the drug ring: Bola Ahmed Tinubu, Lee Andrew Edwards, Mueez Abegboyega Akande, and Abiodun Agbele.”
After the requests, all five US agencies issued “Glomar responses”, refusing to confirm or deny whether the requested records exist.
Mr Greenspan contested those responses at the Department of Justice’s Office of Information Policy (“OIP”). The OIP, however, affirmed the agencies’ refusal to confirm or deny the existence of the requested records.
The American then filed a lawsuit on 12 June 2023, naming the FBI, DEA, IRS, EOUSA, and Department of State as defendants and challenging each agency’s response to the separate FOIA requests.
Court documents show that the CIA was later added as a defendant in the First Amended Complaint, along with a challenge to that agency’s glomar response to the plaintiff’s FOIA request.
On 20 October 2023, Mr Greenspan filed an emergency motion seeking a hearing to compel the US agencies to immediately produce records responsive to his FOIA requests. He cited the Nigerian Supreme Court’s plan to begin hearing arguments in three days’ time in a litigation contesting Mr Tinubu’s 2023 election as the President of Nigeria.
Three days later, on 23 October 2023, Mr Greenspan’s emergency motion was denied for failing to “satisfy any of the requirements for emergency injunctive relief.”
Also on that same day, President Tinubu moved to intervene in the case, citing his privacy interests in his “confidential tax records” and “documents from federal law enforcement agencies that fall within the Privacy Act or exceptions to FOIA and should not be disclosed.”
In 1993, Mr Tinubu was said to have forfeited $460,000 to the American government after authorities linked the funds to proceeds of narcotics trafficking.
The issue of Mr Tinubu’s forfeiture of the funds featured prominently at the Presidential Election Petition Court when his opponents, Atiku Abubakar and Peter Obi, challenged the president’s eligibility to contest Nigeria’s presidency. But the election court, in a unanimous decision, dismissed the suits, affirming Mr Tinubu’s election.
However, on Tuesday, Judge Howell ruled partly in favour of Mr Greenspan in the US case.
The judge noted that the ‘Glomar’ responses asserted by the FBI and DEA are “improper and must be lifted.” He said the FBI and DEA failed to show that they properly invoked FOIA.
Mr Howell said since it was acknowledged that Mr Tinubu was a subject of an investigation involving both the FBI and DEA, “the claim that the Glomar responses were necessary to protect this information from public disclosure is at this point neither logical nor plausible.”
‘Why the FOIA request should be granted’
Explaining his judgement further, Mr Howell establish that a FOIA requester may challenge the propriety of an agency’s Glomar response in two ways: first, by “challeng[ing] the agency’s assertion that confirming or denying the existence of any records would result in a cognisable harm under a FOIA exemption,” and, second, showing that the agency “has ‘officially acknowledged otherwise exempt information through prior disclosure,” meaning that the agency “has ‘waived its right to claim an exemption with respect to that information.”
In this case, the judge said Mr Greenspan asserts both types of challenges to defendants’ Glomar responses: “The plaintiffs’ argument that (1) DEA has officially confirmed investigations of Agbele’s involvement in the drug trafficking ring, (2) the FBI and DEA have both officially confirmed investigations of Tinubu relating to the drug trafficking ring, (3) any privacy interests implicated by the FOIA requests to the FBI and DEA for records about Tinubu are overcome by the public interest in release of such information, and (4) the CIA has officially acknowledged records responsive to plaintiff’s FOIA request about Tinubu.”
Meanwhile, the CIA has the judgement entitled in its favour in this case. The judge ruled that Mr Greenspan has failed to show that the “CIA has ever officially acknowledged the existence or nonexistence of records responsive to his FOIA request. therefore, the CIA’s Glomar response must be sustained.”
Tinubu and Agbele’s records cleared for release
Five of Mr Greenspan’s FOIA requests are still at issue in the parties’ pending cross-motions for summary judgement.
During the hearing, the plaintiff agreed to narrow the issues for summary judgement briefing to defendants’ Glomar responses, redactions, and withholdings as to Mr Tinubu and Mr Agbele only.
This is why in its judgement, the judge ordered that the remaining parties, apart from CIA, to file jointly, by 2 May, a report on the status of any outstanding issues in this case, as described in the accompanying order.
How drug ring member was busted and link to Tinubu
Part of the documents submitted by Mr Greenspan to court to back his FOIA case was a verified complaint and accompanying affidavit, filed in the Northern District of Illinois by the DOJ on 26 July 1993.
The documents sought the civil forfeiture of Mr Tinubu’s funds held by First Heritage Bank allegedly connected to the drug trafficking investigation.
The affidavit by Department of Treasury’s Internal Revenue Service (IRS) Special Agent Kevin Moss, who was involved in the investigation, detailed the drug trafficking activities of Mr Agbele which provided the ground for seeking the forfeiture of Mr Tinubu’s funds. It also shared insights into how Mr Agbele was arrested while selling white heroin to a person not known to him to be an undercover agent.
It stated that upon arrival in the United States, “Agbele identified Akande (who has also been linked to Mr Tinubu) as his uncle and stated that Akande provided him (Agbele) an apartment in Hammond, Indiana,” citing “investigating agents of DEA” as the source of this information.
Furthermore, he said according to DEA investigators, Mr Agbele sold white heroin to another individual on numerous occasions.
With the assistance of “Source A”, DEA called Mr Agbele to purchase a small amount of white heroin,” which resulted in a transaction where “Agbele sold one ounce of white heroin to a law enforcement officer working in an undercover capacity.”
Subsequent to this sale, “Agbele was arrested and agreed to cooperate” with the investigation.
The affidavit also states that further investigation by DEA disclosed a lease application completed by Mr Agbele.
Mr Moss’s affidavit confirmed that both the FBI and DEA investigated Mr Tinubu in the wider probe into the drug trafficking activities of Mr Agbele and other members of his ring.
It confirmed that “there is probable cause to believe that funds in certain bank accounts controlled by Bola Tinubu were involved in financial transactions” in violation of US laws “and represent proceeds of drug trafficking.”
It stated that seeking to target Mr Tinubu’s funds arose from “investigation of money laundering of the proceeds of a heroin distribution organisation in the Chicago area.” The clues relied on were said to include “information provided by Special Agents of the IRS, DEA, (and) FBI.”
