Holding the Government Accountable

DoD Reply to 2010 FOIA: Go to the Army

After waiting over five years, the Project On Government Oversight has finally received a Freedom of Information Act (FOIA) response from the Department of Defense (DoD) related to our May 12, 2010, request for post-employment ethics opinions. After five years, you would think that a USB drive containing information would have been included with an apology letter for the delayed response. Not so. Instead, the DoD stated that it conducted a search for the requested records and that the Office of the Secretary of Defense “does not control or maintain the database or types of ethics opinions requested.” The letter stated that the Army collects those records for the entire Department, and DoD provided us with Army contact information to start the FOIA process again, which is underway.

For those of you keeping score at home, this is the second time POGO has been denied access to DoD’s revolving door database. You might recall that in 2009, POGO submitted a public comment requesting that the forthcoming DoD database be public. DoD rejected POGO’s comment stating:

One source submitted comments on the interim rule. That source supported the rule and its objectives, but recommended that the central database/repository for retention of written ethics opinions, required by section 847(b), be made publicly available. DoD has not adopted this recommendation, as section 847 does not authorize access to the database by the general public.

In plain terms, DoD’s recent reply is a joke and highlights deep problems inside DoD and with the FOIA process. Certainly, waiting five years to tell us that the Secretary’s office “does not control or maintain” the revolving door database is astonishing—a database is something you either have or don’t have, and taking five years to figure that out smacks of either incompetence at best or a purposeful delay in the hopes that POGO will go away at worst.

Moreover, DoD’s assertion that it doesn’t maintain the sort of information we were looking for is questionable, especially considering the fact that the Department has already turned over revolving door information to another organization. In 2012, Citizens for Responsibility and Ethics in Washington (CREW) requested the ethics records and followed that request up with a FOIA lawsuit later that year when it didn’t receive responsive records. As a result of that litigation, DoD sent CREW heavily redacted records in 2013. Despite that release of information, DoD didn’t think to circle back to POGO or, when it sent us it’s FOIA non-response a few weeks ago, to just send us the same documents it had released to CREW.

Reports by CREW in 2013 and POGO in 2004, and more recently by POGO this week, have documented the frequency that DoD officials leave government service to work for defense contractors. Despite the fact that the DoD is statutorily required to track those people, the DoD Inspector General raised questions in 2010 and again in 2014 about whether the DoD is complying with those revolving door disclosure requirements. The National Defense Authorization Act for Fiscal Year 2008 requires DoD to retain ethics opinions “in a central database or repository for not less than five years.” The law also requires that contractors ensure that former DoD personnel seek ethics advice. The purpose of the law was to improve compliance with revolving door laws because there were questions about ethics compliance, which could result in contractors gaining an unfair competitive advantage over others in the defense industry.

Having access to ethics opinions for former DoD officials is another step toward accountability and a deterrent to corruption. DoD’s hold on this information and its inexplicable reply only adds to POGO’s prolonged frustration and could signal there is something to hide. We guess the moral of the story is that for FOIA to be timely and effective, POGO needs to hire a FOIA lawyer and sue the government into submission.