I’m a former FBI agent and a DC-area attorney, and I spend most of my free time on one narrow question: how the government collects digital evidence, and what happens to it afterward. I am not a litigator. Nothing here is me telling you how a judge will rule. It’s me telling you where the language stops making sense.
Here’s the thing that’s been bothering me about the Heritage Foundation’s FOIA fight over the Biden–Zwonitzer recordings. Everyone is arguing about whether the tapes get released. Almost no one is asking the prior question: by what definition are these an agency “record” in the first place? Because “record” is not one thing. It’s three different things, living in three different statutes, and the government gets to pick which definition it invokes at which moment. That slippage isn’t a side issue. In my reading, it’s the whole game.
The material, in plain terms
Between 2016 and 2017, Joe Biden sat for interviews with his ghostwriter, Mark Zwonitzer, for the memoir Promise Me, Dad. Private recordings, made for a book. Years later, Special Counsel Robert Hur obtained those recordings during the classified-documents investigation — the one that ended with no charges. The recordings came in under a use-limitation agreement, a detail I’ll come back to, because it matters for what I am and am not claiming.
In February 2026, DOJ reversed its earlier position and moved to release the recordings and transcripts, with redactions, to the Heritage plaintiffs and the House Judiciary Committee. Biden intervened, asked for a preliminary injunction to stop the release, and lost. That’s the posture. Now to the part that interests me.
Three statutes, three definitions of “record”
FOIA’s “agency record” (5 U.S.C. § 552). Here’s a surprise for most people: FOIA never defines “agency record.” The courts filled the gap with a simple two-part test — the agency has to obtain the material and control it. That’s it. Possession plus control. It does not matter who created the thing, or why, or that it was intensely private when it was made. Once the government holds it and controls it, it can become a FOIA-reachable agency record. This is settled law, and I’m not fighting it. My quarrel is not with the definition. It’s with what the government does next while standing on it.
The Privacy Act’s “record” (5 U.S.C. § 552a). Note the section number — 552a, the Privacy Act. Not 552b, which is the Sunshine Act and a different animal entirely; people mix these up constantly. The Privacy Act protects records held in a “system of records,” and you’d think that’s where Biden’s protection would live. Except the Privacy Act contains a fatal clause for his purposes: it does not bar a disclosure that FOIA requires. So the moment the material qualifies as a FOIA agency record subject to release, the Privacy Act steps aside. That’s precisely why this whole case collapsed down to one thing: FOIA Exemption 7(C), the privacy balancing test. The Privacy Act couldn’t do the work, so 7(C) had to.
Keep these two straight, because they sound alike and aren’t. A Privacy Act “system of records” is defined by retrieval — a set of records the agency actually pulls by someone’s name or personal identifier — and it exists to protect individuals’ personal information. An FRA “recordkeeping system” is defined by function — where the agency captures and preserves its federal records to meet its legal obligations. Different statutes, different tests: a single system can be one, both, or neither. The FBI’s Sentinel is both — it’s the Bureau’s recordkeeping system for case records and, because case information is retrieved by individuals’ names, a Privacy Act system of records. Which is exactly why the seized-evidence carve-out is so telling: the recordings are kept out of Sentinel, the one system that would otherwise sweep them into both regimes at once.
The Federal Records Act’s “record” (44 U.S.C. § 3301). This is the definition nobody’s using, and it’s the one I think matters most. Under the FRA, a record is material an agency makes or receives in the course of doing government business, kept as evidence of the agency’s own operations. Apply that here. What do the recordings document? Joe Biden writing a book. They do not document DOJ’s business, DOJ’s decisions, or DOJ’s operations. They’re evidence the government gathered in an investigation — not a record of the government governing. Under the FRA definition, they’re evidence, not an agency record.
Now line those up. The same object — one set of recordings — is a “record” under FOIA because the government possesses and controls it, and is not a “record” under the FRA because it doesn’t document agency business. Same word. Opposite answers. And the government reaches for the FOIA answer to justify releasing the tapes, while the FRA answer is the one that says these should have gone home.
The government’s own rulebooks say “return,” not “release”
This isn’t just my framing. Two policy documents — one from the Justice Department, one from the FBI — treat seized evidence in a way that points toward giving it back, and neither one contains a public-release mechanism at all.
Start with the DOJ Justice Manual, section 9-14.000, on disposing of seized evidence in closed criminal cases. It applies across DOJ criminal investigations, and that includes a Special Counsel’s. Section 9-14.001(1)(b) specifically reaches evidence seized in investigations where no indictment was returned — which is exactly this situation. And 9-14.002 sets a presumption favoring disposal, where disposal means returning the property to its lawful owner. Retention is the exception, and it requires a specific, stated reason. The Manual is blunt that a “speculative possibility of future litigation” doesn’t cut it. The process runs through the investigating agency, and the burden sits on the prosecuting side to justify holding onto anything. Read the whole section and you’ll find what isn’t there: any procedure for handing seized evidence to the public. There’s return, and there’s narrow retention. There is no “release to a FOIA requester” door.
One honest caveat: 9-14.001(2) exempts classified material and “derivative electronic evidence” from the disposal mechanics. But that goes to which items run through the formal process — not to whether the underlying return principle applies. The default direction is still homeward.
Now the FBI Digital Evidence Policy Guide (0830PG), effective July 31, 2016. This is internal policy — by its own terms it creates no enforceable rights, and I’m not pretending otherwise. It is available on the FBI’s FOIA reading room, marked UNCLASSIFIED//LES. I cite it for one reason: it shows how the Bureau institutionally treats seized digital evidence, and it closes the gap someone always raises — but a recording is a forensic image, isn’t that different?
It isn’t. The DEPG governs digital evidence whether “seized, received, or otherwise legally obtained,” and it treats the forensic image as a defined, tracked artifact: an original, a master copy, working copies, each with chain-of-custody rules. The endpoint matches DOJ’s Manual — the original digital evidence can be returned to its owner once all criminal proceedings terminate, with the usual exceptions for contraband, forfeiture, and instrumentalities. Dissemination is narrow and gated: prosecutors, law enforcement, defense discovery. Section 4.3.6.5.1 even says vague “government personnel” warrant language isn’t enough to authorize onward dissemination. And section 6.1 flatly prohibits uploading digital evidence into Sentinel — the FBI’s records system — invoking the federal-records definition to do it. Sit with that. The Bureau’s own rule says: seized digital evidence does not go into the records system, because it isn’t an agency record. That’s the FRA distinction operating inside the Bureau’s day-to-day plumbing, and it’s my single strongest piece of support for the Federal Records Act bucket.
The guardrail I insist on, now with one piece sharpened. It’s tempting to wave the DEPG off as somebody else’s rulebook — the FBI’s, not the Special Counsel’s. That’s not how these investigations are staffed. A Special Counsel doesn’t run his own crew of agents and evidence technicians; he draws on the FBI to do the collecting, handling, and custody work. Hur’s investigation, like Mueller’s and Smith’s before it, used FBI personnel as the investigative and evidence-collection arm. And FBI employees don’t leave FBI policy at the door when they’re detailed to a Special Counsel — the DEPG and the Bureau’s records rules governed their conduct as they acquired and handled digital evidence. So this isn’t a loose analogy to what happened with the Zwonitzer recordings; for the people doing the collecting and maintenance, it was the operative policy.
The records-management guide draws the same line
Here’s the piece I’ve added since the last post, and it strengthens the FRA point with a second, independent document — this time from the Bureau’s core records-management policy rather than its evidence policy.
The FBI’s Records and Information Management Policy Guide carves non-FBI-generated seized material — physical or digital — straight out of the records regime. It calls that material “evidentiary property,” and says it’s “managed under a different set of rules and regulations than those defined in this PG.” That’s the same move the DEPG makes, coming from a completely different rulebook. Two separate policy instruments, evidence policy and records policy, both saying: seized evidentiary material is not an ordinary agency record.
The same guide splits the artifact exactly the way you’d expect if you took the FRA seriously. The seized material is evidentiary property. But the FD-1004 chain-of-custody form — the paper that documents the Bureau handling that evidence — is expressly a nontransitory record. The Bureau keeps a record of what it does with the evidence, without folding the evidence itself into the records system. And for good measure, the guide quotes the 44 U.S.C. § 3301 definition of a federal record word for word. So the FRA definition, and the evidence-is-not-a-record line, are both sitting right there in the FBI’s own records policy.
Who audits the records regime, and who doesn’t
There’s an outside referee for all of this, and it’s an agency most people never think about: the National Archives and Records Administration. NARA is the external authority over federal records management. It approves the schedules agencies use to keep and dispose of records, sets recordkeeping standards, and audits whether agencies comply under the Federal Records Act. The FBI’s own records policy shows this in operation — the Bureau’s records officer is NARA-certified and coordinates directly with NARA and DOJ’s Senior Agency Official for Records Management on schedules and recordkeeping requirements.
So when the FBI classifies seized recordings as “evidentiary property” outside its records system, that’s not a casual internal label. It’s a determination made inside the exact framework NARA polices, using categories NARA’s system recognizes. The Federal Records Act bucket is a real, externally-audited regime with its own working definition of a record. It isn’t something the Bureau improvised for convenience.
But here’s the boundary, and I want to be precise because it’s easy to overstate. NARA governs the records question. It does not govern the FOIA question. Those run on different statutes. Whether something is a FOIA agency record is decided by courts, on the possession-and-control test — not by any NARA schedule. An agency can’t file material out of FOIA reach, and NARA’s sign-off on how records are kept says nothing about whether a given item is disclosable. Two systems, two referees, two different questions.
And that gap is the entire point. The same recordings can sit outside the records regime NARA oversees while sitting inside FOIA’s reach as an agency record. One object, two definitions, two answers. In my reading, that seam isn’t an accident. It’s the space the government works.
The question the courts keep stepping around
Set the records regime aside for a moment and ask the different question, the one a court actually decides: not whether these recordings are managed as records, but whether they’re reachable under FOIA — and then what the government is allowed to do with them.
This is where my real argument lives, and it’s a constitutional one. The Fourth and Fifth Amendments protect the contents of material the government collects, not just the monetary value of the paper it’s printed on. When the government seizes private recordings for a criminal investigation, gets no charges, and then — instead of returning them — releases them to the public through FOIA, that is, functionally, an uncompensated taking of private information. The value that’s being appropriated is the content itself.
Picture a cleaner version. Someone steals the Coca-Cola recipe and, in the course of prosecuting the thief, the government ends up holding it. Charges get dropped. Now a FOIA requester asks for “the document in the government’s files,” and the government hands over the formula to the world. We would all instantly see the absurdity — the government laundering a private secret into public domain because it briefly possessed it as evidence. The recordings are the same structure. The only reason it’s less obvious is that the courts keep resolving these disputes as routine FOIA Exemption 7(C) privacy balancing, which quietly answers a different question and never reaches the constitutional-property one at all.
Where the litigation stands, and where I was wrong
I’ll own my record here, because I said I would.
On June 19, 2026, Judge Friedrich denied Biden’s preliminary injunction. I published Part I the next day arguing she got it wrong and predicting reversal on appeal.
On July 20, 2026, the D.C. Circuit denied Biden’s injunction pending appeal. Per curiam, with Chief Judge Srinivasan and Judge Katsas in the majority and Judge Pan dissenting. My reversal prediction did not hold, and I’m not going to soften that. What I’ll add is that the court decided the case entirely on FOIA Exemption 7(C). It assumed for argument that Biden’s Privacy Act/APA theory was even available and ruled against him anyway — and it never reached the constitutional/property theory I care about. The administrative injunction was extended to August 3, 2026, for further review. So the deeper question I keep pointing at is still, as of this writing, undecided rather than rejected.
Judge Pan’s dissent is worth reading, and I’ll borrow from it on procedural grounds only. She reads 7(C) as weighted toward privacy, gives the home special solicitude, and treats an uncharged investigation target as deserving heightened protection under Fund for Constitutional Government. Her point I fully adopt, on its own terms, is the timing one: denying the injunction risks mooting the case by allowing disclosure before any merits ruling. You can lose the ability to protect the thing before anyone decides whether it should have been protected. I take that concern; I’m not signing onto her full analysis.
And then, days later, Biden folded. On July 24, 2026, he filed a Rule 41(a)(1) voluntary dismissal without prejudice of the separate affirmative suit he’d brought against DOJ and the House Judiciary Committee — a different case, before Judge Chutkan, distinct from the Heritage/Friedrich matter and its appeal. The dismissal came directly on the heels of the appellate loss, and the coverage treats it as what it plainly was: Biden ending the fight rather than seeking further review, which clears the way for the recordings to go to the Committee. So I’ll say it plainly this time — he gave up the challenge — while noting the caution that survives. Which filing you point to shapes how you describe it: “declining further review” of the D.C. Circuit ruling and “voluntarily dismissing the separate suit” are two different procedural acts, and the honest version names the specific one rather than blurring them into a single dramatic surrender.
What I won’t do is climb inside his head about why he stopped — whether it was the math on the merits, the cost, or a judgment that the case was already effectively mooted the way Pan warned. The fact is confirmed. The strategy behind it isn’t mine to narrate.
DigitalCrimPro 
Leave a comment