Is NOAA deleting records? CoA Institute sues for important communications about fisheries regulation

In passing the Freedom of Information Act (“FOIA”) and the Federal Records Act, Congress intended for internal agency communications to be logged and, in many cases, retrievable under the FOIA.  Attempts by agencies and officials to evade such transparency violate the core principles of government accountability and recently resulted in a highly publicized scandal that enveloped Secretary Hillary Clinton’s campaign for president.

So in the wake of the Clinton e-mail scandal, have agencies learned their lesson?  For the National Oceanic and Atmospheric Administration (“NOAA”), this doesn’t appear to be the case.  Cause of Action Institute (“CoA Institute”) recently submitted multiple FOIA requests for NOAA’s records retention policies and internal communications from the time period surrounding the recent New England Fishery Management Council (“NEFMC”) meetings.  In addition to asking for emails, CoA Institute also requested Google Chat/Google Hangout (“GChat”) records.

Anyone who regularly uses G-Mail is familiar with GChat and its “off the record” feature, which disables message logging.  Unfortunately, a 2012 NOAA memo indicates that NOAA enabled the “off the record” feature agency-wide.  There’s no indication that NOAA is using any other method to log these communications.  This likely violates the Federal Records Act and frustrates public efforts to file FOIA requests seeking to better understand government decision-making.

CoA Institute is interested in the communications between NOAA officials during the recent NEFMC meetings.  These meetings were important because, at their conclusion, the NEFMC voted to adopt an amendment that would extend coverage of “at-sea monitors” on the fishing industry.  This could have devastating effects on the ability of small-boat fishermen to continue to pursue their livelihoods.  This amendment now goes to the Secretary of Commerce for his approval, and it is critical that the public understand the thought process used by NOAA to get this result, which would be revealed by reading its internal communications.

NOAA’s response to CoA Institute’s FOIA request was unusual.  First, it declared the request was non-billable, meaning CoA Institute would not need to pay fees for compiling the information.  This is appropriate given both the public interest in these records and CoA Institute’s status as a news media requester organization.  NOAA later rescinded its non-billable determination and demanded CoA Institute submit more information relevant to the fee waiver request.  CoA Institute did so, but, to date, NOAA has not responded.  In our letter, we express concern with how NOAA is handling this request:

If NOAA is concerned that records responsive to this request will cast the agency in an unflattering light or reveal that its recordkeeping practices are in violation of law, it cannot weaponize fee waivers to prevent disclosure. To do so would not only be a violation of the law, but it would strike a grave blow to transparency.

With today’s lawsuit, NOAA has no choice but to produce the requested records.  If the agency is unable to locate any GChat records because they were improperly deleted, NOAA must publicly admit this, immediately take steps to recover the records, and change its policies for future record retention to comply with the law.

Eric Bolinder is Counsel at Cause of Action Institute.

CoAI Sues NOAA for G-Chat Records Surrounding Controversial Amendment to Expand Industry-Funded At-Sea Monitoring

Unlawful agency directive appears to greenlight concealed communications on internal messaging platform

Washington D.C. –Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the National Oceanic and Atmospheric Administration (“NOAA”) for Google Chat or Hangouts communications from the New England Fishery Management Council’s (“NEFMC”) April 2017 meeting. The suit also seeks internal guidance on retention of Google Chat records on the agency’s internal messaging platform. NOAA failed to respond to two Freedom of Information Act (“FOIA”) requests submitted in May for these records.

The records sought by CoA Institute include guidance from NOAA’s Office of General Counsel for the retention of instant messages through the “Google Chat” or “Google Hangouts” feature of NOAA’s internal Unified Messaging System. According to a March 2012 NOAA handbook, employees were instructed that these messages “will be considered ‘off the record’ and will not be recorded in anyway.”

CoA Institute Vice President Julie Smith: “NOAA appears to have created an internal messaging platform to hide records from public disclosure. Any directive to make certain communications be considered ‘off-the-record’ clearly violates transparency laws.  Americans have a right to know how decisions are made that could jeopardize their livelihoods.”

The lawsuit also seeks all communications sent or received by employees of NOAA’s NEFMC who attended the April 18–20, 2017 meeting. During this meeting, the NEFMC approved a controversial amendment to expand the use of industry-funded at-sea monitors to the herring fishery and to prepare for its further expansion through all regional fisheries.

CoA Institute submitted a regulatory comment opposing the so-called Industry-Funded Monitoring Omnibus Amendment due to negative economic impacts that threaten the livelihoods of countless small-business fishermen. The cost for a monitor under the amendment would cost fishermen more than $700 per day at sea.  That would exceed the revenue a fisherman typically lands from his daily catch. The Secretary of Commerce has since commenced a review of the rule for compliance with federal law.

The full complaint is available here.
The two earlier FOIA requests are available here and here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

Fishermen in New England Face Another Costly Regulation

The New England Fishery Management Council (“NEFMC”) held a meeting on April 20, 2017 [pictured above] to discuss a controversial omnibus amendment that would require more fishermen to pay for at-sea monitors, which should be the government’s responsibility.

The monitors would cost between $710-$818 per day at sea, which is more than the average daily revenue of a fisherman, rendering fishing unprofitable for many smaller-scale boats.

Cause of Action Institute Vice President Julie Smith attended the meeting and questioned the legality of the rule change, citing the Magnuson-Stevens Act, which, she said, does not permit the Council to implement this regulation. She advised the Council to take a different course of action to avoid likely court challenges to overturn the amendment. Listen to Smith’s full remarks here:

 

In a written comment submitted on April 11, 2017, Smith provided alternatives for the council to consider. The council could scrap the amendment entirely, work with the National Marine Fisheries Service to get the funds, or petition Congress for the funds.

However, she said shifting the cost burden onto fishermen would be “ill-advised.”

CoA Institute represents fishermen challenging another industry-funded monitoring program in the Northeast groundfish fishery. In that case, a government study predicted that industry-funded monitoring would result in up to 60 percent of mostly small-scale vessels going out of business—a result that the government blithely characterized as a “restructuring” of the groundfish fleet.  Learn more about the case HERE

Court of Appeals Upholds Decision on Reg That Will Put 60 Percent of New England Ground Fishermen Out of Business

Judges refuse to consider legal arguments, but implore Congress to clarify the law about who should pay for at-sea monitors 

Washington, D.C. – On Friday, the U.S. First Circuit Court of Appeals upheld the District Court’s ruling last summer that a lawsuit filed by Cause of Action Institute (CoA Institute) on behalf of Plaintiffs David Goethel and Northeast Fishery Sector 13 against the U.S. Department of Commerce should be dismissed.

In its opinion, the Court found that the fishermen’s suit was untimely and therefore did not consider the Plaintiff’s legal arguments that requiring fishermen to pay for monitors is against the law.  However, in a rare move, the judges highlighted the devastating economic impacts of the regulation in question, and urged Congress to clarify the law and who should pay for the at-sea monitors.

“I am disappointed by the decision,” Goethel said. “But I’m hopeful that Congress will heed the Court’s direction and clarify the law. It is the government’s obligation to pay for these at-sea monitors. I’ve made a living fishing in New England for more than 30 years and I have never exceeded a single fishing quota. But I can’t afford to fish if I am forced to pay for at-sea monitors.  I’m grateful to Cause of Action Institute for bringing this case forward, and I remain hopeful that Congress will clarify the law to ensure the New England groundfishing industry is not regulated out of existence.”

Northeast Fishery Sector 13 Manager John Haran said, “I’m disappointed that timeliness of the case was the Court’s deciding factor and not the merits of our arguments. The fishermen in my sector can’t sustain this industry funding requirement and many will be put out of business if this mandate remains in place.”

Cause of Action Vice President Julie Smith said, “We are disappointed that the First Circuit did not reach the merits of our case.  While we respect the opinion of the First Circuit, the federal government is clearly overextending its regulatory power and is destroying an industry.  We are considering all of our legal options for judicial review on the merits.  We also encourage Congress and the Administration to act swiftly to ensure that these unlawful regulatory costs do not put an end to the tradition of generations of proud fishermen in New England.”

Background:

In December 2015, the Department of Commerce ordered that fishermen who fish for cod, flounder and certain other fish in the Northeast United States not only must carry National Oceanic and Atmospheric Administration (“NOAA”) enforcement contractors known as “at-sea monitors” on their vessels during fishing trips, but must pay out-of-pocket for the cost of those monitors.  This “industry funding” requirement would devastate the Northeast fishing industry, at the price of many jobs and livelihoods.  The opinion by the First Circuit upholds the lower court’s decision and allows this job-killing mandate to remain in place.

To learn more, visit the Cause of Action Institute website.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

This Fisherman Is Battling the Government to Save His Livelihood

The New England and Mid-Atlantic fishing industry is older than the Nation itself. The industry’s regulators, however, have embarked on a project that threatens its imminent destruction.

Meet New Hampshire fisherman David Goethel. The federal government is destroying Mr. Goethel’s industry through overregulation and forcing ground-fishermen like himself to pay $700 per day to have authorities monitor them on their boats. Even the government estimates these additional costs would put 60% of the industry out of business. Cause of Action Institute is helping Mr. Goethel fight back through the courts to save his livelihood. Learn more HERE

#FreeTheFishermen

FOX News: East Coast fishermen file appeal over cost of government-required ‘at-sea monitors’

East Coast fishermen file appeal over cost of government-required ‘at-sea monitors’

 

By Cristina Corbin | Published December 09, 2016

SEABROOK, N.H. – David Goethel built his life off the profits of cod, trolling the waters of New England for 30 years netting the region’s once-abundant signature fish.

“My slice of the American Dream was paid for from fishing,” Goethel said from behind the wheel of his 44-foot fishing trawler on a windy Friday afternoon in December. “Cape Cod house, two cars, four college educations – it all came out of the fish hole in this boat.”

But a controversial federal mandate is threatening to put him out of business, he claims. Read More

If the Government Wants to Monitor Fishermen, the Government Should Pay

CoA Institute files opening brief in appeal of decision to force costs of at-sea monitors on struggling fishermen

Washington D.C. – Cause of Action Institute (CoA Institute) has filed its opening brief in an appeal of the district court’s decision that fishermen should be forced to pay for their own at-sea monitors. CoA Institute is representing New Hampshire fisherman David Goethel and a group of Northeast fishermen in the case against the U.S. Department of Commerce.

In July, the U.S. District Court for the District of New Hampshire dismissed the lawsuit, ruling that fishermen must pay out-of-pocket for the cost of those monitors. Cause of Action Institute is appealing the ruling. The opening brief, filed in the First Circuit Court of Appeals, states:

“The New England and Mid-Atlantic fishing industry is older than the Nation itself.  Today it creates thousands of jobs in countless fishing communities. The industry’s regulators, however, have embarked on a project that threatens its imminent destruction.  They have done so without statutory authority, defying the most elementary limits on federal agency power.  This Court should intervene to protect fishermen from agencies run amok.”

Current government regulations compel fishermen to carry “at-sea monitors” who live with the fishermen at sea, observe their activities, check their compliance with federal regulations, and file reports upon their return to dock.  Fishermen have accepted the presence of monitors for years, and the government has historically paid for them with money appropriated by Congress.

In early 2016, however, the Government claimed to have run out of money.  Its response was to enforce a new requirement — now, the fishermen must pay for the monitors themselves, at an estimated cost of more than $700 per trip.  Most fishermen cannot afford to do so, and will be forced to abandon their livelihoods.

If the Government wants third-party monitors to police fishing activity, the Government must also take responsibility for paying for them. The district court disagreed, holding that the Government’s power to regulate the fishing industry and place monitors includes the much broader power to extract money from regulated parties when congressional appropriations run short.

The brief states:

“Such reasoning represents an unprecedented expansion of agencies’ implied powers, with implications stretching far beyond the agencies involved in this case. Contrary to the district court’s reasoning, the bedrock of administrative law is that federal agencies are limited to congressionally-delegated powers and congressionally-appropriated funds.  If they lack statutory authority or appropriated funds, they have no power to act.  They may not coerce their regulated industries to provide the funding that Congress has declined to grant.  This Court should reaffirm that principle and reverse the district court.”

For more information about the case, visit our website.