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FAA May Be Trying to Evade Disclosure by Creating New FOIA Restrictions Announced via Litigation

9:26 pm in Uncategorized by MSPB Watch

Readers of my website, MSPB Watch, know that I have sued the Federal Aviation Administration earlier this year for withholding responsive documents required to be disclosed under the Freedom of Information Act.

My request asked for all documents pertaining to an assignment that I worked on while employed by the FAA. In that request, I suggested that responsive documents were “in the possession” of certain individuals, but I clarified that there might be others.

The FAA searched those individuals’ inboxes and one database, but nowhere else. The problem is that two of those individuals did not provide emails that are known to exist.

One individual, Richard Clarke, retired before I made my request, and so his account had been deleted. Another individual, Dale Roberts, suffered a computer malfunction; his inbox did not reveal anything; and, as was recently revealed in court documents, he chose not to enable his account’s archives feature.

During my administrative appeal, in October 2012, I reiterated my request for all documents related to the assignment and I said that “If such emails or other documents are not available, a reasonable search would involve any appropriate backup tapes or files.”

The FAA chose to ignore my appeal, so I sued, in January 2013.

In a motion for summary judgment dated March 11, the FAA raised the argument before the judge that its search was complete and that I am not entitled to a search of the backup tapes (or “disaster recovery tapes,” as it calls them) because…

And this is where it gets interesting.

In the March 11 filing, the FAA argued that I am not entitled to a search of the tapes because I did not “specifically” ask for it on request. It cited to the affidavit of Jeb Kreischer, a FOIA program analyst, who signed it under penalty of perjury. Mr. Kreischer did not support his assertion with any policies or documents.

In a response dated April 8, I pointed to a pair of Nov. 2011 letters sent by Victoria Wassmer, the Assistant Administrator for Finance and Management, to another requestor, in which she stated that “if a requestor believes that a search [of email accounts] is not sufficient, the requestor may request on appeal that a NEXTGEN [a/k/a disaster recovery tape] search for records be conducted.”

In other words, I caught Mr. Kreischer in an inconsistency.

In response to that, on April 22, via a supplemental declaration by Mr. Kreischer that was similarly unsubstantiated, the FAA doubled back on its previous assertion and stated that it doesn’t matter when a requestor asks for a tape search; rather, he needs to specifically reference “disaster recovery tapes” in his request.

Moreover, the FAA asserted that “[w]hen requesters state on appeal that they would like such a search, however, the FAA does not consider this statement part of the requesters’ original request.” This is important because if the FAA is late in responding to the “original request,” then it cannot assess search fees. But if the tape search is not part of the original request, then the FAA’s tardiness does not affect its ability to assess fees for the tapes (which can run into hundreds or thousands of dollars).

This is an end-run around the OPEN Government Act of 2007, in which Congress barred tardy agencies from assessing fees as an accountability measure.

That’s exactly what happened here – the FAA was late in responding to my request, but it tried to assess fees for the tapes anyway. I objected and requested it go ahead with its search. Now the issue is going to be decided by the court.

Here’s another red flag that should trouble any member of the public who is concerned about open government issues: the FAA’s assertions in court are actually an attempt to create ad hoc policy to govern when a tape search obligation is triggered. The problem, of course, is that it is attempting to dictate policy to a requestor in court, without giving him any advanced notice.

Does that trouble you? This kind of thing usually troubles the courts.

Next steps: I will be filing a response in court by May 6. Then the FAA and I will meet before the judge on May 17. And then he will render a decision.

By the way, the disaster recovery tapes (or “NEXTGEN”/”NEXGEN” search, as they were called not too long ago), were apparently implemented in May 2008, the same month the FAA received a request from the Office of Special Counsel to preserve all documents for key officials, including then-acting administrator Robert Sturgell. Weird, huh?

Review other litigation documents from Pardo v. FAA here.

MSPB Watch Founder Sues FAA for Wrongfully Withholding Documents Detailing Whistleblower Retaliation

1:29 pm in Uncategorized by MSPB Watch

ALEXANDRIA, Virginia — MSPB Watch founder David Pardo filed a civil complaint in federal district court against the Federal Aviation Administration Jan. 4, alleging the aviation safety agency wrongfully withheld records that would “detail collusive practices by FAA officials to retaliate against a whistleblower, corrupt the legal process, and subvert the rule of law.”

FAA Seal

Did the Federal Aviation Administration illegally suppress whistleblowers?

The complaint, filed in the U.S. District Court for the Eastern District of Virginia under the Freedom of Information Act (“FOIA”), seeks a permanent injunction from the court directing the FAA to disclose all wrongfully withheld records.

Pardo is an attorney who was employed by the FAA until he was terminated in September 2010 after disclosing wrongdoing by FAA officials. Pardo submitted a FOIA request to the FAA on July 27, 2012, seeking records related to an assignment he worked on as an agency attorney that he believes has been “manipulated by FAA officials in the Office of Chief Counsel (“AGC”) and Flight Standards Service (“AFS”) to create a pretext for Plaintiff’s termination.”

The FAA’s Flight Standards Service initially responded to Pardo’s request with a fee estimate of $200 for 6 hours of search time, then an additional $50 for another hour, all of which Pardo agreed to pay. Approximately 10 weeks after receiving Pardo’s request, and after apparently conducting a 7-hour, $250 search, AFS came back largely empty-handed, saying it was “unable to locate any email records” between individuals involved in overseeing the assignment.

However, as noted in Pardo’s administrative appeal, “there seem to be positive indications of overlooked materials. A simple search for [certain key terms] in the inboxes of [named] AFS employees . . . would have yielded any number of a dozen or more responsive emails and attachments. This is corroborated by FOIA documents I have already obtained from non-AFS offices,” Pardo wrote.

A copy of the complaint is available here [PDF].

Follow the litigation, Docket No. 1:13-cv-14, here.

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