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05/16/2018

New Records Reveal the FAA Has Been Tracking FOIA Media Requesters

The Freedom of Information Act (“FOIA”) was introduced to ensure public access to records of the Executive Branch.  Unfortunately, agency FOIA processes have long suffered from politicization at the hands of bureaucrats and political appointees who hope to frustrate the disclosure of embarrassing or newsworthy documents.  A recent report about enhanced “vetting” of FOIA requests at the Environmental Protection Agency (“EPA”), for example, demonstrates the tenacity of those who govern—regardless of their political affiliation—to keep secrets from the concerned public.  Similarly, earlier this year, Cause of Action Institute (“CoA Institute”) revealed how the National Oceanic and Atmospheric Administration expanded its “sensitive review” procedures by putting records requests from attorneys, and requests concerning the Trump Administration’s transition period, into special processing categories.  Now, newly disclosed records from the Federal Aviation Administration (“FAA”) demonstrate how that agency has made concerted efforts to keep tabs on news media requesters.

The FAA’s FOIA “Media Reports”

“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records at issue are politically damaging, embarrassing, or otherwise newsworthy.  Politicization can come in different forms.  Sometimes sensitive review entails an agency’s public affairs team or communications specialists being kept informed of new requests or outgoing productions of records.  In other instances, it involves political appointees supervising searches or making redaction decisions.  In all cases, sensitive review delays, and sometimes prevents, the disclosure of records that the public has a right to view.

According to records obtained by former CoA Institute attorney Allan Blutstein, the FAA’s sensitive review process includes a “tracking system” for requests submitted by representatives of the news media.  News media requesters automatically receive a fee reduction under the FOIA and presumptively satisfy some of the requirements for expedited processing. This preferential treatment is meant to recognize the vital role of the media in a participatory democracy.  The intentional targeting of media requesters within a framework for sensitive review, therefore, is especially concerning.

The following screenshot from one of the FAA’s “Media Request” charts shows just how the agency tracks pending requests.  Each line includes a description of the records at issue and each request’s processing “status,” such as whether a search has been conducted or responsive records are under review.

Although approximately half of the requests recorded in the FAA chart (100 of 184) were submitted during the Trump Administration, the remainder date from as early as April 2009.  Not only does this reveal an unacceptable backlog at the FAA, but it suggests that the practice of targeting media requesters for special scrutiny or “tracking” may have originated with the Obama White House.  CoA Institute warned in early 2014 that FOIA processes across the government were being clogged up by political intervention because of news media requesters seeking the disclosure of records about embarrassing scandals.  It appears that the FAA’s current practice reflects the politicization that was covertly emphasized by the Obama Administration.

(A complete copy of the FAA tracking chart is available here.  FOIA requests highlighted in blue have not yet been assigned to a FOIA officer, while requests in yellow are, in most cases, pending legal, business or supervisor review.  An agency-created summary of the highlighted FOIA cases is available here.)

As a representative of the news media, CoA Institute itself was subject to the FAA’s tracking regime.  Three of our pending requests, dating from early 2012 and 2013, were flagged.  One of those three requests has not even been assigned to a disclosure officer for processing, despite the fact that it was submitted to the FAA almost five years ago.

The version of the FAA’s “Media Request” tracking table obtained by CoA Institute, which is dated April 26, 2018, was circulated amongst several officials within the FAA’s Office of Communications (“AOC”) and the Department of Transportation’s Office of the Secretary (“OST”).  The cover email also includes a batch of incoming record requests.  All of this suggests that a key group at the FAA is responsible for managing the sensitive review process and keeping key officials within the Administration knowledgeable about ongoing FOIA affairs.

A complete copy of this email is available here.  To the extent we have been able to identify the individuals involved, we believe they hold the following positions within the FAA’s FOIA Office, Office of Communications, or the Office of the Secretary of Transportation:

  • Kimberly McCormick – FOIA Management Specialist
  • Kathy Ray – Departmental FOIA Officer, Department of Transportation
  • Laura Brown – Deputy Assistant Administrator for Public Affairs
  • Gary Kolb – Chief of Staff, Communications Division
  • Greg Martin – Assistant Administrator for Communications
  • Elisabeth Smeda – Senior Advisor to the Acting Administrator
  • Collen Donovan – Senior Advisor to the Deputy Administrator
  • Carlos Alfaro – Director, Information and Technology
  • Geraldine Gour – Manager, Administrative Services for the Aircraft Certification Service
  • Duke Taylor – Manager, FOIA Program
  • Louis Fuss – Senior FOIA Management Specialist
  • Laurie Karnay – FOIA Management Specialist
  • Susan McLean – FOIA Management Specialist
  • Delphine Ndi – FOIA Analyst

A collection of the incoming FOIA requests attached to the email is available here.  Those requests were submitted by various reporters from Mother Jones, ABC, NBC, Fox10 News of Mobile, various local newspapers, and ProPublica.

The Problem of FOIA Politicization

Unfortunately, there is nothing unlawful about an agency keeping separate “tracking” notes on FOIA requests submitted by members of the media.  Nor is there anything unlawful in an agency keeping its communications officials, or even other parts of the Executive Branch, aware of incoming requests or outgoing records that could elicit media coverage or public inquiries.  But the sort of intentional tracking and obvious backlog that has become standard procedure at the FAA is unacceptable and clearly violates the spirit of the FOIA.  The fact that requests from the beginning of 2009 are still pending is inexcusable.  The real danger of politicization at the FAA should be self-evident.  When an agency is committed to treating media requesters in a special way, the tendency will always be to delay and obstruct disclosure, thus impairing FOIA rights and inhibiting the proper functioning of a critical media.

Ever since President Trump took office, the transparency community—including CoA Institute—has raised valid concerns about the White House’s coordinated effort to stifle transparency, both in the context of FOIA and with respect to congressional inquiries and oversight requests.  This is an unfortunate development, and CoA Institute remains committed to fighting for open government.  But insofar as the current Administration questions the value of President Obama’s legacy, it should commit itself to greater transparency.  The Washington Post described the Obama Administration as one of the “most secretive,” “most elusive,” and “most punitive toward whistleblowers and leakers who want to bring light to wrongdoing they have observed from inside powerful institutions.”  The Trump Administration should endeavor to do better.  No one should fear the disinfecting power of sunlight, and the federal government is always in need of some cleaning.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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03/30/2018

CoA Institute Lawsuit Prompts Archivist to Examine Potential Record Destruction at NOAA

Cause of Action Institute (“CoA Institute”) filed a lawsuit last summer against the National Oceanic and Atmospheric Administration (“NOAA”) seeking copies of electronic records created through the agency’s Google-based email platform.  These types of records are commonly known as “instant messages.”  The Freedom of Information Act (“FOIA”) requests at issue (available here and here) also sought formal agency guidance on the retention of “Google Chat” or “Google Hangouts” messages.  We had already learned, through earlier investigation, that at least one internal NOAA handbook, dating from March 2012, instructed agency employees to treat all chat messages as “off the record,” raising concerns about potential unlawful record destruction at NOAA.

Media Coverage of CoA Institute’s Lawsuit Tipped-off the National Archives

The Daily Caller News Foundation reported on CoA Institute’s lawsuit shortly after it was filed.  Officials at the National Archives and Records Administration (“NARA”), which is tasked with policing federal records management across the government, took notice of the story and subsequently opened an inquiry on July 17, 2017 into CoA Institute’s allegations.  NARA gave NOAA “30 calendar days” to indicate how it planned to address the retention of “Google Chat and Skype messages,” and, if necessary, to report an “unauthorized disposition,” that is, the improper destruction of records.

As far as we know, eight months later, NOAA still has not responded to NARA.  We only learned about the NARA inquiry due to the agency’s recent decision to proactively disclose information on all pending investigations into the unauthorized disposition of federal records.  We have filed FOIA requests with NOAA and NARA in order to discover the status of the inquiry, and we will provide further updates as more details become available.

The fact that CoA Institute had to file a FOIA request to obtain NOAA’s response to the NARA inquiry, as well as related communications, shows that NARA’s proactive disclosure regime on this topic could be improved.  NARA should add another category of materials to its webpage that includes all correspondence received from an agency under investigation for the improper treatment of records.

NOAA’s Questionably Legal Google Chat Policy Flouts NARA Guidance

It goes without saying that an agency-wide policy to treat all chat messages as categorically “off the record” is problematic.  Even if an agency expects its employees to keep business-related communications, which could qualify for retention under the Federal Records Act (“FRA”), off a chat-based platform, it is reasonable to assume that some messages worthy of preservation will be sent or received over instant messaging.  NARA Bulletin 2015-02 makes that point clear.  And even if some instant messages were not worthy of long-term historical preservation, they would still qualify as transitory records subject to NARA-approved disposition schedules.

A categorical policy such as the one that NOAA has adopted creates a moral hazard.  Officials who want to thwart transparency can communicate with chat or instant messaging and, at least in this case, there is no way for the agency, NARA, or the public to catch them in the act.  NOAA officials have been observed using Google Chat to communicate during a contentious meeting of the New England Fishery Management Council.  If an agency like NOAA refuses to police how its employees are using the chat function on their Google-based email accounts, it should disable the function all together.

Regardless of whether electronic messages created through Google Chat or Google Hangouts are subject to the FRA, they may still be subject to the FOIA, which defines an “agency record” in broader terms than the FRA’s definition of a “federal record.”  By failing to implement any sort of mechanism for preserving chat messages—even for the briefest period—NOAA is depriving the American public of access to records that could be particularly important in showing how the agency operates and regulates.

The worst part of this saga is that NOAA knew it was treading a thin line in deciding to treat Google Chat messages as “off the record.”  According on documents obtained through the FOIA, NOAA’s lawyers and records management specialists were aware that electronic messages would need to be saved for public disclosure if Google Chat were “on the record.”  Notes from an October 20, 2011 meeting reflect this:

NOAA also recognized that chat messages could, in theory, be subject to the FRA.  Yet NOAA Records Officer Patricia Erdenberger reasoned that, by treating Google Chat as “off the record,” the agency’s FRA obligations could be bypassed.  Making a questionable analogy to phone calls, Erdenberger suggested that chat messages be “considered transient electrons.”

Agencies must do a better job at keeping pace with evolving forms of technology.  As one of my colleagues has argued, the use of non-email methods of electronic communication—including text and instant messaging, as well as encrypted phone applications like Signal—has serious implications for federal records management.  The Department of Commerce, NOAA’s parent agency, has not updated it policy for handling electronic records since May of 1987.  NARA, for its part, has been critical of the Department’s failure to revise this guidance, which is “heavily oriented towards the management of digital records on storage media such as diskettes and magnetic tape.”  Still, thirty years is a long time for such inaction, even for the federal government.  The transparency community must therefore intensify its efforts to hold the government accountable until more effective ways of handling electronic records are introduced.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/27/2018

Congress Throws Fishermen a Lifeline

Congress gave groundfishermen in New England a new lease on life when it appropriated funds last week to cover the cost of the At-Sea Monitoring program for 2018.  The National Oceanic and Atmospheric Administration (“NOAA”) requires groundfishermen—who target bottom-dwelling fish like cod or flounder—to carry at-sea monitors on their boats and, as of 2015, requires the fishermen to pay the costs associated with these monitors, which can exceed $700 per day.  By NOAA’s own estimates, this could put nearly 60% of the groundfishing fleet out of business.  Small, family-run businesses would be hit hardest.  CoA Institute released a short video with its client, David Goethel, that describes the destructive impact industry-funded monitoring will have on fishermen’s lives.

Judicial Review

CoA Institute filed suit on behalf of the fishermen in 2015. In 2017, the First Circuit Court of Appeals ruled that the fishermen filed their lawsuit too late because the underlying regulation was promulgated in 2010.[1]  The statute governing the fishing industry—the Magnuson-Stevens Act—has a review period of only thirty days after the finalization or implementation of a regulation for a legal challenge.  Although CoA Institute argued that imposing costs on industry for the first time in November 2015 should have restarted the clock for a legal challenge, the Court disagreed.  But the First Circuit did note that:

[G]iven NOAA’s own study which indicated that the groundfish sector could face serious difficulties as a result of the industry funding requirement, we note that this may be a situation where further clarification from Congress would be helpful for the regulated fisheries and the agency itself as it balances the competing goals of conservation and the economic vitality of the fishery.

Congress Steps Up

Congress appears to have taken notice by appropriating the funds necessary to cover at-sea monitoring costs for Fiscal Year 2018.  Congress also gave specific instructions to NOAA in order to avoid any ambiguity and ensure that the agency uses these funds for their intended purpose.

This is not a permanent solution but, for now, it will allow fishermen to stay afloat.  In the future, if regulators want to continue to impose constitutionally suspect monitors on an already-beleaguered American fishing industry, they must justify the cost to the American taxpayer.  The enormous public debt associated with the Omnibus Funding bill is reckless and unsustainable.  Eliminating at-sea monitoring would be a good start to curtailing spending.  But in the meantime, a federal agency like NOAA cannot be allowed to create a regulatory structure and then destroy an entire industry in order to fund it.  If the government cannot afford to fund its programs, those programs must end.  For 2018, at least, the government has chosen to cover the costs of monitoring, and our fishermen will get to keep on fishing.  The better solution, however, would be to eliminate at-sea monitoring altogether.

Eric Bolinder is counsel at Cause of Action Institute

[1] CoA Institute also filed a petition with the Supreme Court, which declined to take the case.

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03/12/2018

NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures

The Freedom of Information Act (“FOIA”) ensures all citizens equal and open access to records of the administrative state.  It should come as no surprise, however, that the Executive Branch has never been thrilled about disclosing its records to the general public.  At various times, the White House has orchestrated efforts to frustrate prompt disclosure of records under the FOIA, and President Trump is no exception.  In its first year, the Trump Administration has expanded the so-called sensitive review process.  In doing so, agencies have denied FOIA requesters their statutory right of prompt access to government records.

Sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records they seek could solicit media attention once disclosed.  The sensitive review process may involve an agency’s public affairs team or other communications specialists, and often includes political appointees at the agencies involved.  The process delays and sometimes prevents disclosure of records that the public has a right to see.

Recently, Cause of Action Institute (“CoA Institute”) learned that at least one agency—the National Oceanic and Atmospheric Administration (“NOAA”)—has expanded the sensitive review process by putting FOIA requests from attorneys into a special class.  In some cases, the agency has done this out of fear it would release records that could be used against it in litigation.  These evasive tactics violate the spirit and purpose of the FOIA.  They cannot and should not be tolerated.  Sensitive review of requests based on the identity of a requester can only reflect the Administration’s efforts to limit the disclosure of records, or at least the segment of requester to whom such information is provided, rather than representing any legitimate concern.

Investigating NOAA’s “High Visibility” FOIA Process

For some time now, CoA Institute has been concerned that NOAA may be abusing the sensitive review process to avoid disclosing information it would rather keep hidden.  In one FOIA production from the agency, for example, NOAA used dubious grounds to redact an email and one of its attachments almost in their entirety, as shown below.

One of the two tracking tables attached to this email included a list of incoming requests at NOAA.  NOAA withheld the substantive information concerning those requests—such as the identities of the requesters, the tracking numbers of their requests, and their respective fee category (e.g., representative of the news media)—under attorney-client privilege.  But it is difficult to credit that such benign tracking information would be privileged, particularly when many agencies regularly release FOIA logs containing just this sort of information.

The second tracking table attached to the email reflected NOAA’s contributions to a Department of Commerce-wide effort to track requests pertaining to the Trump Administration’s transition period.  For example, in response to a request from ProPublica, NOAA was unable to locate any records of correspondence with former Trump nominee Todd Ricketts.  Unlike the NOAA-specific tacking table, however, the information about departmental requests was left unredacted in most instances.

Newly Released Records Provide Details about NOAA’s Enhanced Sensitive Review

In an attempt to understand NOAA’s sensitive review practice, on December 11, 2017, we submitted a FOIA request to NOAA seeking access to all records about the agency’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump transition.  This week the agency provided an interim production of responsive records, and the records produced are helping us piece together just what the agency considers to be a high visibility request.

As noted, sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, including by bringing political appointees into the review process.  At the Department of Treasury during the Obama Administration, for example, a whole committee of political appointees—along with representatives from the agency’s public affairs, legislative affairs, and general counsel offices—availed themselves of the opportunity to review responsive records and delay disclosures.  In the past, sensitive review has been used to target media requesters and frustrate the release of potentially embarrassing or politically-damaging agency records.  It even prompted an investigation by the House of Representatives Committee on Oversight and Government Reform.

NOAA’s current sensitive review policy, according to one of the recently-produced records, appears to have been formulated in May 2017.  FOIA staff are expected to “[p]rovide the Office of Public Affairs each Thursday afternoon” with “weekly reports listing incoming FOIA requests of interest.”  Weekly meetings are also anticipated to discuss these requests.  The types of requests that elicit agency “interest” include those from the media and those that seek records in the public interest.  But they also include any request “submitted by an attorney.”  Moreover, NOAA’s Office of Public Affairs has the authority to “identify requests of interest warranting OPA review of response determinations.”  Although NOAA’s policy doesn’t require political appointees to insert themselves into the FOIA process, it does appear to represent a worrisome subordination of career FOIA staff to the agency’s communications shop.  That flies in the face of good government.

In our estimation, one of the more troubling aspects of NOAA’s new policy is the agency’s decision to treat FOIA requests from “lawyers” as deserving special scrutiny.  What is the basis for such treatment?  According to one of NOAA’s weekly FOIA reports, CoA Institute—a non-profit organization that is routinely recognized as a news media requester under the FOIA—was subjected to this heightened sensitive review when we requested processing notes for several earlier requests concerning the Antiquities Act.

In the “Comments” column, NOAA FOIA staff noted some alarming details about what it considered important for the Office of Public Affairs to consider:

Regardless of the motivation behind CoA Institute’s, or anyone’s, request, it is illegitimate for an agency to treat a requester differently simply because the agency fears the requester may enforce his rights in a court of law.  FOIA litigation is unique in that there is a tremendous asymmetry in knowledge between the parties about the processing of a request.  That can make it difficult for a requester to challenge agency affidavits defending the adequacy of a search or the use of an exemption.  Courts already routinely defer to such affidavits.  It now seems NOAA wants to fight against anything that could result in the public learning more about the way a request is processed.  Subjecting requests for processing notes to sensitive review could also suggest that NOAA is strategically laying the groundwork for the future application of the attorney-client or attorney work product privileges, namely, by memorializing the agency’s expectation of future litigation—no matter how distant, unreasonable, or disconnected that “expectation” may be from reality.

NOAA’s fear of a “litigation risk” from CoA Institute even prompted the flagging of other requests from unrelated parties about similar topics.

The fear of possible litigation also underlies the agency’s reticence to produce FOIA logs—basically, a type of processing note—when those records implicate subject-matters that could receive media attention.

NOAA continues to process CoA Institute’s December 11, 2017 request, and we have yet to review all the records that have been disclosed thus far.  Many of these records are in Word or Excel format and contain detailed metrics on the performance of NOAA’s FOIA office, including efforts to eliminate the backlog of pending requests.  As we review the available data and begin to receive correspondence reflecting sensitive review deliberations, we will provide additional updates on our website.

Sensitive Review as a Form of FOIA Politicization

The enhanced sensitive review at NOAA is concerning.  But it also confirms a growing suspicion in the news media and the FOIA requester community that the Trump Administration is intentionally increasing the involvement of agency leadership and political appointees in the processing of FOIA requests.  Last December, the Washington Post reported that officials at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“Interior”) had started to “keep closer tabs” on incoming requests for records that could be embarrassing or politically damaging to the Administration.  More recently, a senior career official at the Department of Housing and Urban Development (“HUD”) claimed to have been “barred from handling” requests submitted by the Democratic National Committee because she was perceived to be a “Democrat,” and therefore opposed to the Administration’s interests in limiting the disclosure of embarrassing of politically-damaging information.

As I have explained, the improper interference by political appointees in the administration of the FOIA is hardly new.  It has been ongoing for years regardless of which party controlled the White House and in a variety of federal agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, Interior, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security (“DHS”).  (Admittedly, it does seem that DHS has made efforts to limit political appointees’ involvement in FOIA administration.)

To the extent President Trump has sought to avoid transparency and open government—to chip away at the “colossus” of FOIA, as Nate Jones has described—he is following in the unfortunate and inexcusable footsteps of his predecessors.  That action should not go uncontested.  CoA Institute remains committed to holding the White House and every federal agency accountable when they violate the spirit and letter of the FOIA.

Ryan Mulvey is Counsel at Cause of Action Institute

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02/28/2018

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment

Earlier this month, Cause of Action Institute (“CoA Institute”) filed an administrative appeal of a final response by the National Oceanic and Atmospheric Administration (“NOAA”) to CoA Institute’s Freedom of Information Act (“FOIA”) request concerning NOAA’s efforts to expand industry funded at-sea monitoring—specifically, to the herring and mackerel fisheries—and to lay the foundation for industry funding across all of New England and the Mid-Atlantic.  NOAA’s processing of the request suggests that the agency failed to search email accounts belonging to members of the fishery management councils even though they are subject to public disclosure.  Based on the limited records that were disclosed, NOAA’s search appears improperly limited to its own employees.

The Industry-Funded Monitoring Omnibus Amendment

Over the past five years, the New England and Mid-Atlantic Fishery Management Councils (“NEFMC” and “MAFMC,” respectively) have worked on a controversial omnibus amendment that would require more fisherman to pay for at-sea monitoring.  Industry-funded monitoring has already been imposed on the groundfish fleet, despite a long-fought legal challenge, devastating economic consequences, and historically-depressed fishery performance.  Industry funding in the herring and mackerel fisheries will cost fishermen between $710–$818 per day at sea.  That is more than the average daily revenue of many fishermen and will render fishing unprofitable for countless small-scale family businesses.

CoA Institute submitted a written comment in response to the poorly-designed and ill-timed omnibus amendment.  Although the MAFMC decided to table the project for at least a year, the New England Council elected to forge ahead with the herring fishery.  According to a recent presentation by NOAA staff, the agency is now reviewing a draft proposed rule.  The NEFMC’s official “timeline” indicates the rule will be published this month.  A final rule is expected to follow in June 2018.

The December 7, 2017 FOIA Request and Appeal

In an effort to investigate how the Councils and NOAA responded to our comment, we filed a FOIA request for “[a]ll records concerning” the comment, “including any correspondence between or amongst members of the New England and Mid-Atlantic Councils; officials, employees, or representatives of NOAA; or any other third party.”  When we received a response, we were surprised that the agency only found seven responsive records—five of which were part of a single e-mail chain with most substantive content redacted to protect NOAA’s “deliberative” processes.

The other two records were an email that we sent to then-Regional Administrator John Bullard with a courtesy copy of our comment, and an email from Dr. Christopher Moore, Executive Director of the MAFMC, forwarding our comment to members of the Council.

NOAA failed to disclose any records from the members of the regional councils.  Even the record from Dr. Moore was the version received by John Bullard, as highlighted here:

NOAA’s failure to locate, process, and disclose relevant records from Council members is a serious deficiency in its response.  Council records—including members’ email correspondence—are subject to the FOIA, even if those records are stored in private email accounts.  The regional councils conduct important business that has a serious impact on the livelihoods of Americans involved with the fishing industry.  The process by which fishery rules are designed and implemented can already be less-than-transparent; any attempt to hide records from public scrutiny cannot be allowed to stand.

Follow-Up Public Records Requests to Massachusetts and Maryland

CoA Institute also filed state-level FOIA requests with Massachusetts and Maryland this week in order to access some of the records that NOAA has refused to disclose.  These requests seek the same records sought from the federal government, but only to the extent they were created or received by John Quinn and Michael Luisi, the chairmen of the NEFMC and MAFMC, who used their state government email addresses to conduct council business.

Interestingly, sometime after CoA Institute submitted its comment, Dr. Quinn removed his University of Massachusetts email address from the NEFMC website, perhaps in order to dissuade the interested public from even attempting to file a state public records request.

CoA Institute is committed to fighting for the economic rights and liberties of everyday Americans, including those who face increasingly onerous regulation of their livelihoods.  We also will fight against agencies that flout federal records management laws in an attempt to keep their regulatory efforts secret.

Ryan Mulvey is Counsel at Cause of Action Institute

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12/7/2017

Inside NOAA’s Secret Staff Newsletter

Imagine being a New England fisherman.  You’re subject to complex and burdensome regulation, and the federal government isn’t exactly helping to keep your way of life afloat.  In fact, its officials have worked increasingly to limit your ability to catch fish and to impose onerous costs on your continued livelihood.  Take, for example, the legally dubious requirement that groundfish sector members pay up to $700 per day to have “at-sea monitors” ride their boats and watch them fish—a scheme that could put 60% of small-scale fishermen out of business.  Consider also the efforts underway to expand industry-funded monitoring to all other regional fisheries.

If oppressive regulation weren’t enough, now picture these same officials publishing a secret internal newsletter that describes their dealings with you and your fellow fishermen in less-than-flattering terms.  Sadly, this isn’t a hypothetical situation.  According to records obtained by Cause of Action Institute (“CoA Institute”) from whistleblowers and under the Freedom of Information Act (“FOIA”), National Oceanic and Atmospheric Administration (“NOAA”) employees in the Greater Atlantic Regional Fisheries Office have long circulated a paper that often contains their candid feelings towards the fishermen with whom they are supposed to collaborate.

In one article, dated June 29, 2010, Port Agent Victor Vecchio, who works in the “Stakeholder Engagement Division,” described fishermen at a “groundfish outreach meeting” as spreading “various conspiracy theories,” at least until they “ran out of steam (or vodka . . . or whatever).”

Figure 1: Vic Vecchio, “Groundfish Outreach Meeting–Montauk, NY 6/29/2010,” Fathoms (July 2, 2010)

In response to an October 17, 2017 FOIA request, the National Oceanic and Atmospheric Administration released a complete copy of its April 1-15, 2017 issue of Fathoms, which was heavily redacted to “protect” confidential commercial information.  The range of topics covered in the paper include news about enforcement actions, in-season events (such as the opening of the recreational fishery), the impact of weather patterns on fishing activity, and even scientific developments.  Much of this appears benign and, indeed, informative.  But, as expected, the issue also discusses the industry’s frustration with planned regulatory actions.  The entire content of that article was conspicuously redacted.

In addition to filling a follow-up request for all issues of Fathoms from December 2015 to the present, CoA Institute has filed an administrative appeal challenging NOAA’s heavy-handed redactions.  Exemption 4, which protects confidential commercial information, does not typically apply to government-generated information.  More importantly, the sort of information contained in Fathoms could hardly be described as “confidential” because it would neither impair NOAA’s ability to obtain information from fishermen in the future nor cause a competitive disadvantage to any part of the fishing industry.

It seems instead that the National Oceanic and Atmospheric Administration is hiding behind an exemption designed to protect businesses in order to actually keep secret its criticism of businesses.  CoA Institute’s staff attorneys have spoken to a number of fishermen who are completely unaware of the existence of Fathoms.  Given the derision they likely receive in its pages, they are unlikely to be too pleased by efforts from the National Oceanic and Atmospheric Administration to block disclosure.

NOAA’s shenanigans don’t end there.  Another record disclosed to CoA Institute suggests that there’s a second internal digest—Dock Buzz—that could similarly provide insight into the government’s relationship with the New England fishing industry.  CoA Institute also continues to investigate NOAA’s likely violation of federal records management laws in failing to preserve employee Google Chat/Google Hangout records.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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09/6/2017

Trump’s monument review is as secretive as Obama’s designations

Trump’s monument review is as secretive as Obama’s designations

By Kara McKenna, counsel at Cause of Action Institute

Presidential use of the Antiquities Act is ripe for abuse, as major decisions impacting vast public lands, natural resources, property rights, livelihoods and private industry are left to the sole discretion of the president. After such a unilateral designation, the president does not need to substantiate his decision in any meaningful way, beyond the use of a few magic words on the face of the proclamation.

It seemed like a positive step when President Trump in April issued an executive order seeking public input for a review of national monument designations over the last two decades. But it now appears that any hope for additional transparency may have been premature. Read the full article at The Hill

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