That’s what a recent FOIA determination might have revealed.
From my January 19 diary:
On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.
Now, we find out, there was no such interpretation, at least not one that can be made public.
Here’s the FOIA appeal grant: http://mspbwatch.files.wordpress.com/2012/01/mspb-foia-appeal-granted-no-2012-01-003.pdf
This raises the question: why are DOJ lawyers making legal arguments based on documents that either don’t exist or are secret?
Further research reveals that the nominee – Rudolph Contreras, Chief of the Civil Division of the U.S. Attorney’s office for the District of Columbia — received what appears to be a unanimous vote out of the Senate Judiciary Committee on November 3, 2011, and a Senate floor vote would be the next step, leading to lifetime tenure on the bench. Federal judges in D.C. deal with a lot of FOIA and other administrative issues (similar to the ones raised by the 2007 lawsuit in question), and Mr. Contreras’ nomination was heralded in part because of his expertise in FOIA and administrative matters. Finally, in response to a question by Senator Chuck Grassley about his interpretive method, Contreras stated that
If the plain language is unclear, I would deferentially look at the relevant administrative agency’s reasonable interpretation of the provision.
The concern raised by last week’s FOIA determination is that Contreras implied to the Court that there was an agency interpretation when, in fact, there was none.
Contreras has been made aware of these concerns and has been asked to respond.
Whatever happens from here on out, this should be looked into before a floor vote takes place.
Update: The Senate placed Contreras’ nomination in the Executive Calendar for January 23, 2012. Unsure if this means a vote will take place tomorrow, but is likely soon: http://www.senate.gov/legislative/LIS/executive_calendar/2012/01_23_2012.pdf