HAPPY BIRTHDAY to the Freedom of Information Act (FOIA), which turned 50 years old yesterday, and which just got a boost from Congress and the White House. FOIA is a terrific democratic tool which enables the public to learn more about government operations, activities, and spending, but sometimes that tool is of limited usefulness. Nearly one decade ago, the Project On Government Oversight submitted a FOIA request to the Federal Emergency Management Agency (FEMA) for records involving some questionable contracts related to the Hurricane Katrina recovery and clean-up efforts. After a protracted run-around involving four separate FOIA case numbers, an appeal, and an abundance of useless documents released to POGO by FEMA, it is unclear if POGO is any closer to getting the information it seeks.
POGO first blogged about this particular FOIA case a few months ago. At that time, we were waiting for the results of an appeal we had filed to receive 39 pages the Department of Homeland Security (DHS) had found in 2013 and referred to the Office of Inspector General (OIG) for review, and that, two years later, the OIG declined to release because, they claimed, doing so would constitute an “unwarranted invasion of privacy.”
Our appeal has since been denied by the DHS OIG because it did not comply with the agency’s 60-day filing deadline: we mailed the appeal before the due date, but it arrived four days after the deadline. You read that right: the DHS OIG denied the appeal that was received a few days late despite the fact that DHS has been dragging its feet for nearly a decade. In a common-sense plea to the DHS OIG, and to avoid having to file a lawsuit or to file the same FOIA again, POGO begged the agency to reconsider its denial of the appeal and to provide POGO with the records that have already been collected and reviewed by multiple components inside DHS.
FEMA replied a few days ago, treating the request as a new FOIA and warning that procuring the documents will most likely prove a lengthy process because the request “seeks numerous documents that will necessitate a thorough and wide-ranging search.” It seems unlikely, however, that such a laborious search could be necessary, given that the 39 documents in question had already been located in December 2013. The correspondence from FEMA continues in a similarly evasive fashion, “If any responsive records are located, they will be reviewed for determination of releasability.” This statement by FEMA is problematic when it has been established that responsive records exist and have already undergone processing.
FEMA had let POGO know that our “new” request now finds itself behind 1,688 other inquiries, but a separate email from a DHS OIG employee suggested that processing might be sooner than later, explaining, “I reached out to the FEMA-FOIA office, and they are in the process of reviewing the records. As far as I can tell, you’re not in the back of the line and that was probably just an automatically generated email.”
In August 2006, POGO submitted a FOIA request for communications between former director of FEMA Daniel Craig and a contractor, The Shaw Group, that POGO believed could reveal unethical behavior. Mr. Craig captured POGO’s attention when The Shaw Group received one of four FEMA contracts, totaling $3.3 billion, to rebuild New Orleans following Hurricane Katrina only nine days after he disclosed in an ethics document that he was leaving FEMA and seeking employment with The Shaw Group.
The FOIA request also asked for communications between Craig and three other contract winners: Fluor Corp., Bechtel National Inc., and CH2M Hill; documents pertaining to Craig’s resignation from FEMA; and other ethics and conflict-of-interest documents related to Craig.
The ongoing struggle to obtain the requested documents constitutes such a large-scale failure on the part of FEMA and the DHS OIG that it feels almost deliberate. Correspondence between POGO and both FEMA and the DHS OIG suggest at best a broken system and at worst purposeful delay and equivocation.
In March 2008, the DHS OIG responded to the FOIA request by releasing several redacted pages documenting complaints against the work of three of the four winners of the large contract, none of which contained information relating to Craig. The DHS OIG wrote that “even to acknowledge the existence of such records pertaining to [Craig] could reasonably be expected to constitute an unwarranted invasion of their personal privacy.”
As expressed in the previous blog post on this case, POGO considers this defense inadequate. Information present in the requested documents that could imaginably pose a threat to individual privacy could simply be redacted. Further, legal precedent has established that the protections covering private citizens do not apply to those who have held high-ranking government positions, such as Craig.
A communication from FEMA in 2010 confirmed that the FOIA request, at the time five years old, had been had been flagged for priority processing. It should be stressed that this communication was written six years ago, and POGO has yet to receive the requested documents, though POGO narrowed the scope of the search in 2010. The following year, FEMA wrote to POGO requesting a confirmation of continued interest and said that it would close the investigation if it did not receive a reply within 14 days. POGO reaffirmed its interest but waited several years for more information.
In January 2014, FEMA did release an additional 143 pages corresponding to the original FOIA request. Many of these pages were heavily redacted, but the subject line of an email sent by a FEMA ethics officer revealed Craig was at the time of the email being investigated for a potential conflict of interest violation. It was not until POGO received a communication from the DHS OIG in December 2015 that it learned 39 additional pages of documents pertaining to Craig had been referred to the DHS OIG by FEMA for processing in 2015. The OIG, however, declined to release these pages, citing third-party protections under 5 U.S.C. § 552 (7)(C) and other exemptions that restrict access to the documents.
Again, POGO found this response unsatisfactory and filed an appeal, communicating the belief that the public interest at stake outweighs the personal privacy interest of Craig for two reasons: the documents requested pertain to business, rather than personal, matters, and Craig has been implicated as potentially violating public trust by assigning a contract to an organization with which he was seeking employment.
Whether or not POGO’s request is actually at the back of the line does not change the fact that we have been waiting for these documents for almost a decade. POGO hopes that all federal agencies work to streamline the FOIA process in order to avoid future breakdowns like this. FOIA is 50 years old: having to wait a fifth of its lifetime for responsive documents is beyond the pale.