deliberative process – Techdirt (original) (raw)

FCC Refuses To Release FOIA Documents Pertaining To Its Stupid Verizon 'Collusion' Joke

from the transparency! dept

You might recall that right before the FCC voted to kill net neutrality at Verizon’s behest, the agency thought it would be a hoot to joke about the agency’s “collusion” with Verizon at a telecom industry gala. The lame joke was a tone-deaf attempt to mock very legitimate concerns that Pai, a former Verizon regulatory lawyer, is far too close to the industry he’s supposed to be regulating. The FCC even went so far as to include a little video featuring Verizon executives, who chortled about their plans to install Pai as a “puppet” leader at the agency. Hilarious.

While the audience of policy wonks and lobbyists giggled, the whole thing was tone deaf and idiotic from stem to stern. Especially given the fact that Pai’s policies have been nothing short of a Verizon wish list, whether that involves protecting Verizon’s monopoly over business data services (BDS), or the efforts to undermine any attempts to hold Verizon accountable for repeated privacy violations. Much like the other lame video Pai circulated at the time to make light of consumer outrage, it only served to highlight how viciously out of touch this FCC is with the public it’s supposed to be looking out for.

Gizmodo recently filed a FOIA request to obtain any communications between the FCC and Verizon regarding the creation of the video, arguing the records were well within the public interest given concerns over Pai’s cozy relationship with the companies he’s supposed to be holding accountable. But Gizmodo says the FCC refused the request under Exemption 5 of the FOIA (Deliberative Process Privilege). While the request revealed around a dozen pages of e-mails between the FCC and Verizon, the FCC refuses to release them, arguing they could harm the ability of the agency to do its job (read: kiss Verizon’s ass):

“At its own discretion, the Federal Communications Commission has chosen to block the release of records related to a video produced last year in which FCC Chairman Ajit Pai and a Verizon executive joke about installing a ?Verizon puppet? as head of the FCC. In a letter to Gizmodo last week, the agency said it was withholding the records from the public in order to prevent harm to the agency?an excuse experts say is a flagrant attempt to skirt federal transparency law.

Needless to say, FOIA experts don’t believe a tone deaf joke qualifies for the exemption:

“To argue that this video amounts to the same kind of deliberative process that goes on behind the scenes in terms of an agency deciding an official policy on a topic, or what actions it?s going to take, is absurd,? Marshall said. ?The deliberative process is frequently used to withhold embarrassing information or inconvenient information. I have no idea how a draft of a skit that was supposed to be funny would impair the FCC?s decision-making process on anything, except on, I guess, maybe future skits.”

In short the FCC was cocky enough to think that mocking Verizon collusion concerns was somehow a good idea, yet now doesn’t want anybody seeing its communications with Verizon executives. The agency pretty clearly is worried the e-mails could be embarrassing or potentially harm the agency’s chances against the wall of lawsuits headed its direction for ignoring the public interest.

Remember that Ajit Pai has routinely crowed about how “transparent” his FCC would be. Yet just one year in, Pai’s agency is already facing numerous lawsuits for refusing to disclose conversations with ISP lobbyists about the plan to kill net neutrality, refusing to disclose net neutrality complaints filed with the agency, refusing to be transparent about a DDoS attack the FCC apparently concocted to downplay the “John Oliver effect,” and for ignoring FOIA requests related to its failure to police website comment fraud during the public comment period (they’re also blocking a law enforcement investigation into that same issue).

In short, whatever Pai’s private definitions of both “transparency” and “joke” are, you sure as hell won’t find them in the dictionary.

Filed Under: ajit pai, b5, deliberative process, fcc, jokes, transparency
Companies: verizon

DHS Trying To Bury Report Showing Violations Of Travel Ban Court Orders By CBP Officers

from the neutralizing-oversight dept

An Inspector General’s report showing Customs and Border Protection violated court orders during its implementation of Trump’s travel ban appears to be headed for a burial by the DHS. A letter from the Inspector General to high-ranking senators says the department has indicated it will invoke an unchallengeable privilege to withhold large portions of the report, if not its entire contents.

The unusual missive to Congress on Monday from Inspector General John Roth said his 87-page report was sent to DHS leadership Oct. 6, but officials have declined to authorize its release over the past six weeks.

Roth said officials informed his office that the report is under review for information that may be subject to attorney-client privilege or to a privilege protecting the agency’s “deliberative process.”

The IG’s letter [PDF] makes it clear the invocation of “deliberative process” privilege is highly unusual in this context. It’s usually invoked in FOIA cases to withhold certain information. The problem with its invocation in the context of an IG report release is that it prevents anyone from challenging the DHS’s decision.

The deliberative process privilege is a common law privilege, largely invoked in Freedom of Information Act (FOIA) and civil litigation, which permits (but does not require) the government from disclosing predecisional and deliberative communications because of the potential chilling effect such disclosure would have on the candid deliberations and back-and-forth discussion that effective policy-making requires. However, invoking the privilege can mask discovery of decisions made based on illegitimate considerations, or evidence of outright misconduct.

For that reason, in civil litigation the privilege is not absolute but requires a court to balance the competing interests of the parties. This has been interpreted to mean that a party requesting the information may overcome the privilege by showing a “sufficient need for the material in the context of the facts or the nature of the case . . . or by making a prima facie showing of misconduct.” Unlike civil litigants, however, we are not able to have a federal court or other disinterested party decide these issues, but must rely on the good faith of the Department.

This leaves the decision entirely in the DHS’s hands and no one in the Inspector General’s office can do anything about it. Evidence of wrongdoing, it could be swept under the carpet by the DHS. It’s unclear what Congressional leaders can do it about this (or even how many of them would actually be interested in fighting the DHS’s privilege invocation), but at least the public is now aware evidence of court order violations is in the process of being memory-holed by the administration.

The report — at least what can be gleaned from the Inspector General’s letter — isn’t completely damning. It notes the implementation of the travel ban took place during several courtroom challenges and involved conflicting directives from White House and the DHS. Perhaps most CBP officers did the best they could during the disorganized chaos, but that still didn’t prevent key violations from occurring.

Roth said CBP defied court orders by providing guidance to airlines not to allow travelers from certain countries to board flights bound for the U.S.

“While CBP complied with court orders at U.S. ports of entry with travelers who had already arrived, CBP was very aggressive in preventing affected travelers from boarding aircraft bound for the United States, and took actions that, in our view, violated, two separate court orders,” he wrote.

As Politico notes, FOIAed communications show DHS officials were troubled by the continual lack of clear internal guidance, as well as contradictory statements made by White House officials. The court orders, however, were much more direct and clear and yet CBP officials violated them repeatedly.

That’s where the IG’s sympathies end. The DHS watchdog doesn’t hedge when it comes to addressing the report’s planned burial.

I am particularly troubled by the Department’s threat to invoke the deliberative process privilege, as this is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis. In fact, we regularly have published dozens of reports that delve into the Department’s rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made. Indeed, that is at the heart of what Inspectors General do.

[…]

Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office’s ability to keep “Congress fully and currently informed about problems and deficiencies” of the Department, as required by the Inspector General Act. I am also unaware of other Inspectors General who have been prevented from issuing reports on such a basis. With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion.

Burial by the DHS without the input of neutral parties would do little to rebuild the trust broken by the CBP’s violation of court orders.

Filed Under: cbp, congress, deliberative process, dhs, hiding report, inspector general, john roth, transparency, travel ban