How and Why Are Documents Redacted?

By: Patrick J. Kiger  | 
FBI affidavit
The Department of Justice released its FBI affidavit from the search warrant on Mar-a-Lago. Among the information not redacted shows the DO found 184 classified documents in 14 of the 15 boxes returned to the FBI. Public Domain

On Aug. 8, 2022, the FBI executed a search warrant on former president Donald Trump's Mar-a-Lago resort in Palm Beach, Florida. The search warrant was part of an investigation into how Trump was handling presidential documents, including classified documents.

Just a few days later, Friday, Aug. 12, a federal judge unsealed that warrant and its property receipt (the property taken during the search) and it confirmed the FBI removed 11 sets of classified documents, including some labeled top secret and "TS/SCI," the highest levels of government classification.

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The warrant also confirmed that the Department of Justice was investigating Trump for three possible crimes:

  • 18 U.S.C. § 793: Gathering, transmitting or losing defense information, which carries a penalty of up to 10 years in prison (violation of the espionage act).
  • 18 U.S.C. § 2071: Concealment, removal or mutilation generally, which carries a penalty of up to three years in prison and disqualification from holding office (concealing of public records).
  • 18 U.S.C. § 1519: Destruction, alteration, or falsification of records in federal investigations and bankruptcy, which carries a penalty of up to 20 years in prison (obstruction of justice).

Given the unprecedented nature of searching a former president's home, there was been an unusual amount of transparency surrounding the warrant. And attorneys for several media outlets, including The Associated Press, The New York Times, The Washington Post and The Wall Street Journal, argued in court for the release of the affidavit supporting the warrant. Affidavits often contain information about what evidence law enforcement thinks is at a property, and other facts, including witnesses who may have provided testimony.

The U.S. Justice Department objected to the release of the affidavit, saying it would compromise their investigation. But U.S. Magistrate Judge Bruce E. Reinhart ruled Aug. 18, 2022, that portions of the affidavit could be released, with stipulations. From the court order:

As I ruled from the bench at the conclusion of the hearing, I find that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed. It is ORDERED that by noon EST on Thursday, August 25, 2022, the Government shall file under seal its proposed redactions along with the with a legal memorandum setting forth the justification for the proposed redactions.

On Aug. 26, around noon, the DOJ released the 38-page affidavit, with more than half of it blacked out. So what's the point?

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The Definition of Redaction

Welcome to the arcane, secretive subculture of redaction, which is the practice of removing or concealing portions of documents before publication. It's a phenomenon that most ordinary Americans probably are unfamiliar with. But attorneys, journalists and historical researchers are accustomed to blacked-out spaces on documents as a consequence of dealing with sensitive subjects.

Redacting has long been a part of government-imposed secrecy. When former CIA employee Victor Marchetti and co-author John D. Marks sought to publish a book on the agency in the early 1970s, government censors, who had the authority to review the book under Marchetti's employment contract, redacted 168 passages from the text, as Marchetti's New York Times obituary details. (The book was published with blank spaces showing the location of the redacted passages.)

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Decades later, documents obtained using the Freedom of Information Act still are sometimes riddled with blank squares over faces in photographs and black bars over words and sentences, and sometimes entire pages, as the FOIA website Muckrock.com details.

But its not just the government. In the legal world, attorneys routinely redact portions of documents that must be turned over during the discovery process in civil lawsuits. Those deletions occur in order to protect attorney-client privilege, attorneys' work product for clients, commercially sensitive information, and information not relevant to the litigation, according to Sara Alpert Lawson, a Tampa-based attorney who specializes in complex civil litigation, white-collar criminal defense and government investigations. As she told us when we interviewed her in 2019, other redactions are required by the courts themselves, to protect personal information such as Social Security numbers from misuse.

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How Documents Are Redacted

One of the odd things about redaction is that while there are rules about what should be redacted, there aren't really a lot of hard-and-fast rules about how to block out that material. For years, attorneys and government officials often simply used black markers to conceal sensitive portions of documents, which then were photocopied so that someone couldn't hold the paper up to the light and read the censored words.

In the mid-2000s, as more and more documents began to be distributed in electronic form, both the government and private-sector law firms started shifting to redacting the digital files themselves, using software tools. According to Lawson, these days attorneys involved in big corporate lawsuits often use e-discovery platforms, which allow them to manage massive amounts of documents and contain tools for redacting portions. (This ABA Journal article also offers tips on how to safely redact information from PDF files using the Adobe Acrobat Pro program.)

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But regardless of what technology is used, Lawson said it's necessary to go through documents individually and figure out what to mask. "Redacting is a time intensive process."

Let's take the Mueller Report, for instance. Much of the two-volume, 448-page "Report On The Investigation Into Russian Interference In The 2016 Presidential Election" was blacked out by then-U.S. Attorney General William Barr. Nearly 7.25 percent of the text was redacted, according to news website Vox.

Barr and his staff apparently scanned a printed copy of the report; redacted it, and then printed and scanned it again to create a new digital copy, according to analysis by Duff Johnson on the PDF Association website. That excess of caution resulted in a low-quality image that wasn't searchable. (Since then, the Department of Justice has published a searchable version as well.)

redacted document
This White House e-mail message from William A. Cockell to Deputy National Security Advisor Colin Powell was reviewed for release twice within weeks by the same NSC staff official. He classified the deletions each time at the Secret level, meaning he concluded their release would cause "serious damage" to U.S. national security.
National Security Archives

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Seeing What's Under Redacted Documents

But digital redaction isn't always foolproof. Guardian reporter Jon Swaine found that he could view redacted text in a court document in the Paul Manafort case by copying and pasting it into a Microsoft Word document. "This likely happened because someone either drew over the unwanted text with a black highlighter tool in Microsoft Word, or used Adobe Acrobat's redaction tools, but forgot to merge them with the original document," wrote Mathew Ingram of the Columbia Journalism Review.

"I don't trust technology," Mark Zaid, a Washington, D.C.-based attorney who specializes in national security law and frequently deals with redactions, said in 2019. "Even if there is a safety mechanism, somebody will invent something that overrides it."

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Zaid generally eschews electronic redaction. His preferred method is to "literally cut it out with scissors and then photocopy the page," he said. "It's a really sloppy-looking redaction, but no one will ever see what I cut out." In other instances, if he's instructed by the government to redact information from a document, he deletes the text and types the number of words and "deleted by the request of CIA" in its place.

But manual redactions on actual paper can go awry, too. Zaid said he once received some redacted documents in a case and discovered that he could hold them up and read the words through the black ink. Whoever sent them had provided the original pages, rather than making a photocopy, he explained.

Zaid said that even when information in court papers is redacted, it's sometimes possible to figure out what's in the blacked-out sections. The client may be able to identify a witness, or piece together what was said in a discussion in which he or she participated, for example.

But generally, "it's not a smart thing to speculate," Zaid explained, because even educated guesses can be wrong. In FOIA litigation connected with the D.B. Cooper skyjacking case, for example, "we thought a document pertained to a particular person who was dead," he said. But when Zaid gave the government a copy of the man's obituary in an effort to get the full document released, "they said, it's not him."

So what might we expect from the redacted affidavit, if Judge Reinhardt releases it? It's hard to know until we see it. It's a wait and see (or not) until then.

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Originally Published: Apr 25, 2019

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