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FOIA Highlights Trouble Integrating Submarine, US Attorney Accused of Sexual Misconduct, and More: FRINFORMSUM 5/23/2019

May 23, 2019

The guided missile submarine USS Florida (SSGN 728) pulls into the Bay of Naples, March 4, 2011. (U.S. Navy photo/Daniel Viramontes)

FOIA Shows Sailors Created “Rape List” That CO Failed to Properly Address

A FOIA request from Military.com won the release of a 74-page investigation into a “rape list” created by members of the USS Florida’s Gold Crew – the second submarine to integrate women. The report found “Navy leaders failed to address sailors’ safety concerns after a sexually explicit list targeting female crewmembers surfaced…resulting in the firing of a commanding officer and several other punishments.” The Commanding Officer, Capt. Gregory Kercher, searched the submarine’s network to find the list, but did not open a formal investigation or notify command, allegedly stating there wasn’t cause to open an investigation because “they only had a piece of paper.” Kercher also allegedly told the chief of the boat to “slow down” because he was too involved in the investigation. “When asked about the lists, the report says female crewmembers were full of fear, anger and disgust. Men described feeling horrified, appalled, outraged and less trusting, investigators wrote.”

DOD Restricts Information it Shares with Congress

A May 8 internal memo obtained by the Washington Post shows that acting defense secretary Patrick Shanahan has issued new restrictions on what the Pentagon shares with Congress about military operations, a move that has prompted bipartisan backlash from the House Armed Services Committee. The memo requires military officials and political appointees to evaluate whether the Congressional request “contains sufficient information to demonstrate a relationship to the legislative function” and urges officials to “provide a summary briefing rather than a requested plan or order itself.” It also moves the responsibility of evaluating the legislative merit of a request to the undersecretary of defense for policy – which is usually led by a political appointee; the process was previously done on an ad hoc basis.

Judge Orders Release of Information on US Attorney Accused of Misconduct

BuzzFeed News recently won a FOIA suit seeking to identify a former US attorney – Stephen Wigginton – who “had an affair with a subordinate, according to the one-page release, created a hostile work environment, and potentially violated department sexual harassment rules.” The Justice Department spent two years trying to argue that the release of a DOJ Inspector General report on complaints made against Wigginton would violate his personal privacy, but US District Judge Vernon Broderick disagreed and ordered the report’s release (although much remains redacted). Broderick wrote Wigginton’s privacy would not be violated because “the improper relationship was so open and obvious that it caused employees within the Office to feel powerless, embarrassed, and distracted, and resulted in a work environment that some described as unbearable and hostile.” He went on to note that the affair had an effect on the operations of the office, noting “In addition to work environment issues, the conduct had an impact on the operations of the Office since it resulted in disparate treatment regarding bonuses and disciplinary actions, and led some to avoid the U.S. Attorney and Supervisory AUSA at all costs.”

The Assistant US Attorney who argued the information should remain secret is Arastu Kabeer Chaudhury.

List of 2017 OLC opinions

Four More OLC “Secret Law” Opinions Named

Thanks only to terrific FOIA work by the Project on Government Oversight (POGO), the Justice Department has published the titles of four previously withheld Office of Legal Counsel (OLC) opinions. As POGO’s Daniel Van Schooten notes, “The most surprising part of the newly published opinions is how utterly unworthy of redaction they ever were. For the most part, they simply reiterate prior decisions. Ironically, one of the newly released opinions cites by name a previous OLC opinion the title of which remains redacted on official lists.”

The newly-releasted opinion titles are:

  1. Counsel to the President: Memorandum re “Administration of the John F. Kennedy Centennial Commission” (Newland) dated January 10, 2017
  2. Acting General Counsel/HHS: Memorandum re “The Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee before Congressional Committees (Colborn, Shaub) dated January 18, 2017
  3. Acting General Counsel/HHS: Memorandum re “Who Qualifies as a “Very Senior” Employee Under 18 U.S.C Section 207(d)(1)(B) (Flynn) January 19, 2017
  4. Counsel to the President: Memorandum re “Appointment of United States Representative (Newland) dated March 13, 2017.

One OLC opinion title continues to be withheld pursuant to FOIA’s Exemption 5, often referred to as the “Withhold it Because you Want to” exemption.

DeVos Used Four Personal Emails for Work

A Department of Education Inspector General Report found that Education Secretary Betsy DeVos used four personal email addresses for government business and that her emails “were not always being properly preserved,” which the IG report noted meant responsive records “were not included in the results of a public records request.” The IG report specified, “In response to one FOIA request for email to and from any private email account controlled by the Secretary, we found that the Department did not identify or produce responsive email that we identified during our review. For another FOIA request, the Department did identify and produce email sent by the Secretary from her private account.” DeVos joins a growing list of high-ranking federal officials who improperly use private email and fail to preserve records.

Always Appeal

The CIA tried to charge our FOIA director Nate Jones for documents even though it failed to reply to Jones in the statutory time frame (the FOIA Improvement Act mandates that if an agency misses its deadline, it may not charge search and review fees for most requesters) and then failed to grant Jones any appeal rights. Jones appealed anyway – because requesters are allowed to appeal any adverse determination despite agencies’ claim to the contrary, and the CIA recanted, releasing the documents free of charge in addition to an office note saying the appeal was “problematic” and that Jones was “complaining about copying fees.” These – improperly charging fees and telling requesters they can’t appeal – are unfortunately common occurrences that many less sophisticated requesters often fall victim too.

George W. Bush Library Kavanaugh Documents

Thanks to Russ Kick for pointing out on Twitter that, in response to his FOIA request, the George W. Bush Library has posted a host of documents on Brett Kavanaugh’s time in the White House Counsel’s Office. The posted documents are emails to Kavanaugh (the library reviewed 103,390 files and posted 49,669 of them), and follows an earlier release of emails sent by Kavanaugh.

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