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The best and worst of FOIAgate

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Mike Riggs
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      Mike Riggs

      Mike Riggs is a staff writer at The Daily Caller. He has written and reported for Reason magazine and reason.com, GQ, the Awl, Decibel, Culture 11, the Philadelphia Bulletin, and the Washington City Paper, where he served as an arts and entertainment editor.

After months of investigating, the House Oversight Committee has released its report on allegations of FOIA abuse in the Department of Homeland Security. At 150 pages (PDF), “A New Era of Openness? How and Why Political Staff at DHS Interfered with the FOIA Process” is chock-full of testimony and evidence to make your jaw drop. In order to help our readers get to the juiciest parts, The Daily Caller has compiled a list of the most fascinating facts from the committee’s report, including evidence of incompetence, theft, and intentional deceit.

1.) DHS attorney Reid Cox attempted to “steal” evidence from a FOIAgate hearing (page 107)

“After a witness interview on March 4, 2011, a Department lawyer attempted to remove Committee documents from the interview room. All documents entered as exhibits during the interview were obtained by the Committee in the course of its investigation into political interference with the Department’s FOIA function,” reads the Oversight Committee’s report.

“After the interview concluded and the court reporter packed her equipment, Attorney Reid Cox attempted to leave the room with the Committee’s exhibits in his bag. Committee staff asked Cox if he had the exhibits in his bag, and he confirmed that he did. Cox was admonished by Republican and Democratic staff that [sic] he was not permitted to leave with the exhibits. Democratic staff advised Cox that the exhibits are Committee documents and as such, they are the property of the Committee and cannot be removed without permission. Cox explained that the Department disagreed with that position and he moved toward the door.”

Cox later returned to the committee room to give the following statement:

As counsel for DHS, I object to counsel for the committee’s refusal to allow exhibits they had shown to the witness and that all are e-mail messages from DHS personnel to DHS personnel on their official DHS-issued accounts and use of e-mail services. These are not committee records, these are, rather, DHS records; and so there is no reason the committee should be able to prevent us from taking them, since they have shown them to the witness and used them in this interview.

I mean, I guess I would note also for the record that because the committee – because the records have no origination nor creation or editing by the committee, other than redactions, it seems to me the committee has no reason to be able to exercise any control over those documents, and that they retain the nature of being DHS documents.

2.) Napolitano’s personal FOIA team has no idea how FOIA works (page 24)

Front office staff know very almost nothing about the Freedom of Information Act according to various testimonies.

One front office staffer describer her colleagues’ grasp of the act thusly: “And they [sic] were questions, you know, what does this exemption mean? What does this processing mean? Questions about – again, the weekly report standard was the same since 2006, but asking, this request came in on Tuesday, when is the response due? When are we going to send the response out? So, again, it was a basic explanation of what the Freedom of Information Act requires and what it does not require.”

Meanwhile, a career FOIA staffer explained to the Oversight Committee that the Front Office wanted to be able to redact or deny FOIA requests based on the politics of the requester.

“Do you know anything about this investigation or why it is of interest/significant,” a Napolitano aide asked a career FOIA staffer. The career FOIA staffer responded that requesters’ identities are moot, telling Oversight, “Typically disclosure to one is a disclosure to all. So why a requester wants them doesn’t – can’t factor into our analysis of whether or not they are releasable. Whether or not the requester falls – the identity of the requester, for example, doesn’t matter with respect to releasability.”

When the front office’s questions persisted, a career FOIA staffer scheduled a meeting to help the political staff learn more about FOIA. The political staff treated the meeting as a joke. “This woman is a lunatic,” wrote Napolitano staffer Amy Schlossman to colleague John Sandweg. “You have to attend this mtg–if nothing else, for the comic relief.”

3.) Secretary Napolitano’s political staff encourage FOIA underlings to deceive their direct supervisors (page 86)

Mark Dorgan is a career DHS employee and a FOIA specialist. His boss, Catherine Papoi, is a FOIA chief, meaning she supervises the FOIA process for career DHS employees (career means “non-political”).

“In January 2010, Dorgan was detailed to the Office of the Secretary to serve as the point of contact for FOIA requests with Front Office equities (Political employees and those closest to Napolitano comprise the front office.) Dorgan’s move to the Front Office was intended to help ‘streamline the Front Office processing,’ decrease delays, and help answer Front Office questions on FOIA.”

Shortly after joining Napolitano’s team, Dorgan requested a transfer. According to Papoi, Dorgan was repeatedly asked by Napolitano’s team to route requests around his FOIA colleagues in order not to raise their suspicions about inappropriate redactions. “They repeatedly asked him to go around my office, to not make waves, statements of that nature,” Papoi testified.

In July 2010, after just six months working in the front office at DHS, Dorgan was transferred back to his old job.