DHS Took 9 Years to Reject FOIA Request for Katrina Records

The government’s response in the wakes of hurricanes Katrina and Rita left much to be desired. In June 2006, the Government Accountability Office (GAO) reported that between $600 million and $1.4 billion was wasted in fraud and improper payments to individuals in the aftermath of the two hurricanes—a number that does not include contractor overpayment. A few months later, the Project On Government Oversight published a report on the lessons learned from Katrina, highlighting how unprepared and poorly managed the disaster response was. The failed response to Katrina was particularly embarrassing in light of the fact that GAO recommendations after Hurricane Katrina copied the recommendations it had made after Hurricane Andrew in 1992 almost word for word—recommendations the Federal Emergency Management Agency (FEMA) clearly hadn’t acted upon.

As part of an investigation, POGO submitted a Freedom of Information Act (FOIA) request in August 2006 for any communications between Daniel A. Craig when he was FEMA Director of Recovery and four specific contractors: The Shaw Group, Fluor Corp., Bechtel National Inc., and CH2M Hill. These contractors were awarded massive ($3.3 billion in total) sole-source, non-competitive contracts to provide transportation, construction, and utilities for the huge and immediate housing need. POGO also included a request for any records pertaining to Craig’s resignation and for documents regarding Craig that are mandated by conflict-of-interest and ethics statutes and regulations (such as recusal and disqualification statements, exit plans, advisory opinions, and ethics opinions).

We paid particular attention to Craig for several reasons. In September 2005, he disclosed that he was seeking employment with The Shaw Group (and others, per his ethics disclosure). Nine days after that disclosure, the controversial non-competitive contracts were awarded. The next month, Craig left FEMA and began working as a consultant for the law firm Akerman Senterfitt (as shown by his LinkedIn profile), where he began lobbying on behalf of The Shaw Group.

Lobbying records show that The Shaw Group targeted the House, Senate, FEMA, and Corps of Engineers on the topics of disaster relief and housing issues—lucrative fields when rebuilding after a hurricane. This is cause for additional concern, as revolving door laws require senior government officials to observe one-year, two-year, or permanent “cooling-off periods” where they cannot lobby the organization they worked in. While an Akerman Senterfitt representative was quoted in The Washington Post as saying Craig had a one-year ban on lobbying FEMA, POGO has yet to see the official ethics memo—one of the documents we hoped to receive with this FOIA request. Due to the lack of specifics in the lobbying report, it remains unclear whether Craig himself lobbied all or just some of the listed entities. Craig now works at Tidal Basin Group, a company he founded in 2006, where he continues to work with FEMA, DHS, and other entities on disaster response issues.

On December 4, 2013, seven years after POGO’s initial FOIA request, FEMA referred 39 pages of records to the DHS Office of the Inspector General (OIG). The DHS OIG took an additional two years to respond to POGO, finally issuing a letter in December 2015 declining to release the records, citing that it would constitute an “unwarranted invasion of privacy.”

POGO contests that decision. Any information that would truly constitute an invasion of privacy can be easily redacted. The potential presence of phone numbers, addresses, social security numbers, and other information of that type is not a sufficient reason to completely withhold the documents. Moreover, legal precedent has established that the work of government officials, especially high ranking ones, is not subject to the same protections as private citizens.

“In virtually all cases...disclosure of the information adduced in an agency investigation [of employee misconduct] serves the public interest at least to the extent that it sheds light on the agency’s performance of its official duties...The higher the rank of the public official alleged to have engaged in misconduct, the greater the legitimate public interest in disclosure is likely to be.” Providence Journal Co. v. Dep’t of Army 981 F.2d 552, 568 (1st Cir. 1992).

And there is reason to believe that misconduct may have occurred. In his official April 2006 testimony to Congress, Matt Jadacki, then-Special Inspector General of Gulf Coast Hurricane Recovery, said that the way the four major contracts were handled “provides a basis for charges of bias or favoritism.” Not only was there a lack of source selection documentation, but there was also no objective evaluation criteria used to determine the size of the contracts, which ranged from $463 million to $1.3 billion. Jadacki’s official testimony clearly establishes that there is a strong public interest in how these contracts were awarded. The series of events in which Craig was seeking employment from a contractor, that contractor received a massive non-competitive contract, and Craig worked to help The Shaw Group lobby the government is justification enough for any reasonable person to be skeptical.

We know from a separate FOIA disclosure made to POGO that concerns about Craig’s actions were raised inside the DHS. An email carrying the subject line, “FW: Potential 18 USC 208 Violation – Daniel Craig – FEMA” was released to POGO, with its contents redacted. Regardless of whether the claim was substantiated, the existence of a conflict of interest concern further contributes to the public interest in this case. Should the documents we request be innocuous, then they will allow us to better understand the workings of our government, which is still in the public interest.

POGO finds both the decade-long delay and the decision to withhold Craig’s records disappointing and concerning. There is a clear public interest in releasing the records that pertain to Craig’s professional duties, and that may shed light on any involvement he had in the questionable federal contracts. As such, POGO has appealed the decision to withhold the records. Taxpayers should be allowed to see whether their money was spent wisely or whether there was any effort to turn public service into private gain.

Unfortunately, long wait times for FOIA requests are normal at FEMA. In an article published by TheRock River Times, Justin Elliot boils the agency’s failure down to two reasons: incompetence and neglect. He reports:

The FOIA staff was never trained properly, a FEMA spokesman told me. Of 16 positions in the office, eight have long been vacant for reasons that are not entirely clear.

Data from FOIA.gov shows that while the DHS as a whole made great progress processing FOIA requests in Fiscal Year (FY) 2015, bringing its backlog down from 103,480 requests to just 35,374, FEMA has backslidden. FEMA’s backlog of 760 requests is up almost 250% from where it was three years ago, in FY 2012. FEMA needs to make responding to FOIA requests more of a priority, and show it by hiring and training staff to accurately and effectively process its increasing backlog of requests.

Maybe this time POGO won’t have to wait a decade in order to get a response.