Thursday, June 1, 2023
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FBI Withholding Records of Retired Fed. Agent’s Communications w/ Buffalo Shooter

'We are hopeful that the government will reconsider and share the evidence with the families... '

(Ken Silva, Headline USACiting a potentially ongoing investigation, the FBI is refusing to disclose records about whether a retired federal agent had been communicating with mass shooter Payton Gendron shortly before he went on his killing spree in a Buffalo supermarket last May.

The Buffalo News first reported last May that the FBI was “tracking down and interviewing the six people, including the retired agent,” all of whom may have had contact with Gendron in an online chatroom 30 minutes before his shooting.

Headline USA had filed a Freedom of Information Act request for records about the FBI’s investigation into this matter—including for a copy of the bureau’s interview summary, or “FBI 302,” with the retired federal agent who spoke with the mass shooter.

The FBI has apparently interviewed at least some of the six people linked to Gendron in the chatroom. The bureau told Headline USA that records related to this are “located in an investigative file.”

However, the FBI said these records are exempt from disclosure because “there is a pending or prospective law enforcement proceeding relevant to these responsive records, and release of the information could reasonably be expected to interfere with enforcement proceedings.”

The FBI cites a potential investigation into this matter, despite the fact that Gendron pleaded guilty to the mass shooting last November and was sentenced to life imprisonment in February. The avowed white supremacist killed 10 people at a supermarket on May 14, 2022.

His victims are reportedly also having difficulties accessing government records.

The Buffalo News reported last Thursday that a federal protective order allows victims’ attorneys to view records “only while at the federal public defender’s office.”

“The attorneys can look at the evidence on the public defender’s computer screen only and in the presence of a member of the defense team. They are prohibited from downloading any of the information. They cannot print any of the documents. They can’t use any kind of recording devices, including a pencil and paper,” the newspaper said.

According to The Buffalo News, the protective order was imposed by a federal judge at the request of the U.S. Attorney for the Western District of New York, who claims that it’s for the public good.

Brett A. Harvey, assistant U.S. Attorney, reportedly argued in a motion that protective orders are “routinely issued” by courts “to protect against unwarranted disclosure of discovery materials to third parties.”

According to The Buffalo News, Harvey argued that the order would protect the privacy of “family members of the deceased, survivors of the attack, and eyewitnesses to the attack,” ensure a fair trial and allow those involved in the federal case to share material with those involved in the state case, which is now over. The U.S. Attorney’s Office reportedly said the material collected is “voluminous” and some of it is “sensitive, graphic and private.”

But defense attorneys reportedly say that access to the material—which include terabytes of videos, crime scene photos and the killer’s online communications—is vital in preparing their civil lawsuits.

“If it was handed over to us on a thumb drive, we could have it digitally organized,” victims’ attorney John Elmore reportedly told The Buffalo News.

“We are hopeful that the government will reconsider and share the evidence with the families.”

Ken Silva is a staff writer at Headline USA. Follow him at twitter.com/jd_cashless.

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