FBI Agents Hung A Noose Over an African American DS Agent’s Workspace Twice, FBI Called It “Pranks”

Posted: 1:20 am ET
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This is a hostile environment harassment case originally filed in 2009 with the final EEOC decision issued in July 22, 2014. It involves an African-American Diplomatic Security Agent and FBI Agents assigned to the FBI’s Joint Terrorism Task Force (JTTF) in Tampa, Florida. The allegations include the hanging of a noose (twice) over the wall separating the DS Agent’s cubicle and adjacent workspace, and racially motivated comments  and use of the “n-word” against then-presidential candidate Barack Obama.

Previous to the 2014 final decision, the EEOC on the July 26, 2013 appeal writes:

“[W]e determined that Complainant’s claim involved an allegation of hostile work environment that occurred during the course of Complainant’s detail to the Department of Justice, Federal Bureau of Investigations (FBI).  We found that the Agency, as Complainant’s employer, and the FBI could potentially be liable for the alleged hostile work environment.  Our previous decision determined that while the Agency issued a decision concluding that there was no basis for holding it liable for the alleged hostile work environment, the FBI failed to issue an independent final decision or join in the State Department’s final decision.  In that regard, the previous decision vacated the Agency’s decision and joined the FBI as a party to the case.  The complaint was remanded to both agencies for further processing and they were ordered to issue a joint final decision addressing the issue of their respective liability for the discriminatory hostile work environment.  The record indicates that despite the Order, the agencies issued two separate decisions addressing their positions.”

According to the EEOC, the State Department’s September 30, 2013 final decision, determined that the DS Agent-complainant was “subjected to hostile working conditions which occurred on FBI premises by FBI personnel” and, therefore, it was not liable for the conduct of FBI employees.  Moreover, the State Department contended that its “management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.”  The Agency also emphasized in its decision that Complainant did not claim that any Agency official from the Department of State took any adverse or retaliatory action against him.  The State Department concluded that there was no basis for imputing liability to the Agency.

In its July 22, 2014 final decision, the EEOC affirmed the State Department’s decision saying, “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.”

Here are the facts from the EEOC case file:

At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency’s Diplomatic Security Section facility in Miami, Florida.

On October 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to a hostile work environment from 2008 to July 2009 characterized by, but not limited to, threatening, offensive and hostile acts, derogatory comments and racially inflammatory statements.

The evidence gathered during the investigation2 of this matter indicates that, in September 2007, Complainant began an assignment with the FBI’s Joint Terrorism Task Force (JTTF) based in Tampa, Florida.  Complainant was the only State Department employee on the JTTF, which was mostly comprised of other special agents employed by the FBI. Complainant was assigned to a 15-member JTTF squad that worked in an office with opened, modular cubicles.

There is little dispute between Complainant and both agencies over the facts of this case.  The parties agree that in the spring of 2008, a noose was hung over the dividing wall of Complainant’s cubicle.  According to Complainant, at the time, he did not consider the presence of the noose to be a personal attack, but as an African American believed the action was highly offensive. When Complainant discovered that a particular FBI agent (Agent F) (white male) was responsible for hanging the noose, Complainant spoke to him about it and Mr. F apologized for the incident and took the noose down.  Complainant did not complain to any Agency or FBI official about this incident at the time, as he believed that the matter had been handled after he spoke directly to Agent F about it.

However, in the fall of 2008, conversations in the office about the upcoming presidential election began to get “heated” and specific comments were made by Agent F and two other named individuals, Agent O and Air Marshall B (both white males), that Complainant perceived as racially motivated against then-presidential candidate Barack Obama.  According Complainant, these individuals made offensive remarks such as “we can’t let some Muslim motherfucker take office” and “when I see someone with an Obama bumper sticker I speed up to see who the fuck is driving the car.”  He also said the named individuals commented that they “should put Obama bumper stickers on [their] car and go raise some hell.”  According to Complainant, such inflammatory statements were not made about the white presidential candidate. Complainant also alleged that the “n-word” was used in referring to candidate Obama. Initially, Complainant indicates that he tried not take these comments personally and to remain calm.  However, he contends that, later, the comments began to affect his working environment negatively and made him feel uncomfortable because the individuals making the statements were the same individuals that Complainant had to rely on to perform his job and for his personal safety.  Complainant asserts that he began to perceive hatred from his co-workers against African-Americans based on these comments.  He began to wonder how his co-workers felt about him.

In October 2008, another noose was hung over the cubicle adjacent to his cubicle. A Halloween mask was placed in the noose to resemble a hanging. According to Complainant, he observed the other agents laughing about the noose.  After this second noose incident, Complainant reported the conduct to his first and second line supervisors at the Agency (State) and to the individual who supervised the FBI Agents on the JTTF.  According to statements from Complainant’s supervisors at the State Department, the FBI management assured them that the matter would be investigated by the FBI’s Office of the Inspector General (OIG), and that the responsible FBI agents would be assigned to other squads and away from Complainant.

Complainant was interviewed by the FBI OIG in November 2008 while the FBI agents were interviewed in February 2009. The record further indicates that Complainant’s supervisors at the State Department asked for, but never received, a copy of the OIG report of investigation.3  According to Complainant, although FBI officials advised his State Department supervisor that the offending agents would be moved to new assignments to remedy the situation, the FBI JTTF supervisory officials failed to enforce the reassignment and did not take the action necessary to relocate the agents involved.  These facts were verified by the supervisors at State.

In the FBI’s supplemental investigation, the FBI Supervisory Special Agents (SSAs) and the Special Agent in Charge (SAC) averred that as soon as they were informed about the second noose incident, they requested an investigation from the FBI’s Office of Professional Responsibility.  However, the FBI’s OIG opted to conduct the investigation.  The SAC also said that he directed that the three FBI agents involved in the incidents be immediately moved to work areas away from Complainant. However, the evidence shows that only the junior agent was immediately moved, and while the other two eventually moved, the SSAs and SAC all concede that the two agents were often in Complainant’s work area because they needed access to investigative materials housed there. The SAC further stated that, after the OIG investigation was completed; all three agents were eventually subjected to disciplinary action.

According to Complainant, the work environment became worse for him after he reported the second noose incident and the matters were being investigated.  Specifically, Complainant contends that no one spoke to him and that two of the agents who were supposed to be relocated objected to the move and remained in his work area. He indicates that the FBI agents often mocked him. Complainant asserts that he felt alienated from his co-workers and could not perform the job he was assigned to do because his peers would not interact with him.  Complainant asserts that one of the offending agents was moved only two desks away from him and that the reassignment was not an effective remedy to stop the harassing conduct.  Complainant’s supervisor at State was informed by Complainant of the deteriorating situation, and conducted a site visit himself and confirmed from his own observations that the situation was hostile for Complainant.

On January 4, 2009, Complainant’s supervisor at the State Department, frustrated because FBI management did not appear to be taking appropriate action to remedy the situation, told Complainant to pack his things, leave the JTTF office and work on taskforce duties from home. Complainant did so, believing this was the only thing his supervisor at the State Department could do to protect him from the hostile work environment in the office in the absence of any corrective intervention by the FBI.  However, Complainant felt that he was being punished by having to leave the office while the offending agents were still in the office performing their jobs. Complainant contends that the hostile work environment did not end until his assignment was changed in July 2009.

In its September 30, 2013 final decision, the Agency determined that Complainant was subjected to hostile working conditions which occurred on FBI premises by FBI personnel and, therefore, it was not liable for the conduct of FBI employees.  Moreover, the Agency contends that its management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.  In addition, the Agency emphasizes in its decision that Complainant does not claim that any Agency official from the Department of State took any adverse or retaliatory action against him.  Therefore, the Agency concluded that there was no basis for imputing liability to the Agency.

Excerpt below from the EEOC’s analysis and findings:

To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. […] The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance at 6.

FBI claims the two “noose” incidents were mere pranks

In applying this standard, we find that the evidence of record supports Complainant’s claim of two “noose” incidents, as well as a working environment where Complainant was subjected to derogatory comments and racially inflammatory statements occurring from the spring of 2008 to July 2009.  The FBI, however, has argued in its separate September 30, 2013 decision that the offending FBI agents were not motivated by Complainant’s race when, in two separate incidents, they hung a noose in Complainant’s work area.  The FBI claims that the incidents were mere pranks directed at another employee and not at Complainant based on his race.  The FBI also determined that the remarks by agents concerning the 2008 presidential election and candidate Barack Obama were not racially motivated.  The FBI argues that the agents merely expressed their opposition to a particular political candidate and that their comments were not a result of any animus toward Complainant’s protected class.

We disagree with the FBI’s position. In limited circumstances, the Commission has held that certain events, by themselves, may support a finding of discrimination under Title VII. See Juergensen v. Dep’t of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman’s noose is “a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans”);  Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996).  Moreover, the record is clear that derogatory and racially inflammatory language, including the use of a highly charged racial epithet (the n-word), was openly used by the FBI agents in Complainant’s presence.  Moreover, the fact that the remark was not specifically directed toward complainant is not dispositive.  See Barber, Eley, Powell and Johnson v. Department of the Navy, EEOC Requests Nos. 05A50657, 05A50771, 05A50972, 05A50973 (March 16, 2006).  Therefore, we find that the evidence of record supports a finding that Complainant was subjected to a racially hostile work environment while serving on the FBI task force in 2008 and 2009.

Agency’s liability

In considering the Agency’s liability for this discriminatory hostile work environment, we note that an Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992).  The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996).  Appropriate corrective action is a response that is reasonably calculated to stop the harassment.

FBI failed to advise the State Department of investigation results

The record establishes that when Complainant informed his State Department management of the hostile work environment to which he was being subjected, Agency officials immediately contacted Complainant’s FBI supervisors and were advised that the offending agents would be assigned to other teams.  Because of the unique circumstances involved in this matter, the Agency had no authority over the FBI agents and did not initiate an investigation because the matter occurred on FBI premises.  The Agency also indicates that although the FBI conducted an investigation, the FBI failed to advise the Agency of its results.  The record further indicates that Complainant’s State Department supervisor met with Complainant and advised him of the FBI’s plan to remove the offending agents and asked if Complainant wanted to take further action.  Complainant elected not to pursue any further action initially, believing that the FBI’s promised intervention into the matter would end the hostile work environment.  When Agency management later learned from Complainant that his work environment had not, in fact, improved, and that he was being alienated at the FBI offices, Complainant’s supervisor decided to have Complainant work from home in an attempt to eliminate Complainant’s exposure to the hostile work environment that the FBI had failed to end.

FBI failed to end hostile environment

The record reflects numerous emails sent between various members of Complainant’s management team at the Department of State in their efforts to support Complainant.  These emails support the affidavits of State Department officials and Complainant himself, that they initially thought that the FBI’s response to the alleged harassment was adequate.  However, when State Department management learned that the FBI had failed to end the hostile environment, it became disillusioned with the FBI’s efforts and removed Complainant from the workplace in order to protect him from further harassment. Complainant testified that he believed the Agency did everything it could to support him.

Diplomatic Security Agent-Complainant was removed from workplace

We find that when the State Department management learned of the harassment, it took prompt action by immediately contacting Complainant’s FBI supervisors in an attempt to address Complainant’s concerns and end the hostile environment.  However, because the hostile environment was created by FBI employees at an FBI location, Complainant’s supervisors had no direct authority to remedy the situation.  Instead, the Agency was forced to rely on their FBI counterparts in management to address Complainant’s concerns.  The record reflects that Agency officials kept in constant contact with Complainant during the course of the FBI’s investigation into Complainant’s allegations and, to the best of its ability, the Agency followed up on the progress of the FBI investigation.  The record further indicates that once the Agency learned that the FBI’s investigation did not alleviate the hostile environment to which Complainant was being subjected, the Agency removed Complainant from the environment and permitted him to work from home until his assignment with the FBI was terminated.  The Department of State admits that Complainant was subjected to a hostile work environment while working at the FBI.  However, record evidence shows that State Department management took prompt and immediate action to report Complainant’s claims to FBI officials and, when the FBI failed to remedy the situation, removed Complainant from the FBI work site in order to prevent further exposure to the hostile work environment.  Accordingly, we find that there is no basis for imputing liability to the Department of State for the discriminatory hostile work environment in this case.

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President Obama Makes Historic Visit to Hiroshima, Now For the Trillion Dollar Question

Posted: 11:45 pm ET
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President Obama Visits #Cuba, First Visit By Sitting POTUS Since 1928

Posted: 5:49 pm EDT
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According to NYT, former President Jimmy Carter visited Cuba twice after he left office, in 2002 and 2011. President Obama’s visit today is the first visit by a sitting president in 88 years. In January 1928, President Calvin Coolidge attended the Pan American Conference in Havana. He rode the presidential railcar to Key West and then boarded the battleship USS Texas and set sail for Havana. This is also a first for Air Force One.

 

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POTUS at the @StateDept Chiefs of Mission Conference

Posted: 3:31 pm EDT
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Shuffling the Spoxes: Admiral Kirby Out, Psaki to White House, New Spoxes Race Is On!

 Posted: 11:05 PST
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Yesterday, we heard that the Pentagon Spokesman, Read Admiral John Kirby is stepping down to make way for a new civilian spokesman under the new Secretary of Defense Ashton B. Carter.

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We’re going to miss Admiral Kirby from that podium, and we’re going to miss the fake one, too. This one via @Doctrine Man sums it up:

John Kirby brought three things to the podium that are a rare combination in this business: credibility, character, and competence. Together, they equated to a presence that was second to none. He earned the respect and admiration of the Pentagon Press Corps, built relationships that spanned to the soggy side of the Potomac, and calmly managed each and every crisis that ballooned within the walls of The Building (and there were quite a few). In a tenure that lasted just 14 months (I know, it seemed like more), he became a calm voice of reason in Washington unlike any other, eclipsing both the White House and State Department press secretaries at a time when there was more than enough bad news to go around.

 

Today, news broke that the State Department Spokesperson Jennifer Psaki is returning to the White House as communications director:

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The State Department spokesperson, more than the White House spokesman is the public face of the United States to the world.  The spokesperson is not only speaking on behalf of Foggy Bottom but on behalf of the United States.  Here’s our short list for the next podium king/queen:  We’d like to see one who can stay on message, and still be credible, one who inspires respect not derision; a sense of humor and some humility would be nice, too. We’d like to see an intelligent, natural performer with solid international affairs experience up that podium. And of course, somebody  eloquent and quick witted to spar with Matt Lee.

 

Dear Senators, Do You Really Want President Obama to Appoint 65 Special Presidential Envoys?

Domani Spero
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So, Congress has been back in session for a week but not for long.  We’re now counting the days when our representatives will run off to full campaign mode for the November election.

Meanwhile, we have not seen any significant movement in the confirmation of the State Department nominees, particularly the ambassadorial appointments stuck in the Senate since forever.  Apparently,  the world’s greatest deliberative body is now unable to deliberate with sense and harmony. Who best should pay the price than the ambassadorial nominees, because why not? It’s not like anyone of the nominees can appeal to a higher order.

Last September 11, the Senate did confirm John Hoover as our ambassador to the Republic of Sierra  Leone. That’s the country with a serious outbreak in Ebola.  He only waited 428 days.  And he was not even the longest wait on the calendar.  Mr. Daughton, a career diplomat nominated for our embassy in Namibia has been waiting the longest at 443 days as of this writing.  Mr. Harrington, another career diplomat nominated for Lesotho has been waiting 411 days and recently saw his post go on ordered departure (for family members) due to a coup; he presumably watched it all unfold from over 8,000 miles at his temporary desk in the District of Columbia!

Here are some of the other nominees stuck longest, to-date, in confirmation purgatory:

image via afsa.org with diplopundit notation

image via afsa.org with diplopundit annotation

The State Department “T” family also has two nominees awaiting confirmation for over 400 days. Here’s their boss, the Under Secretary of State for Arms Control and International Security tweeting on the day Congress returned to work, and again, a few days later:

 

There are currently 153 nomination pending on the Senate’s Executive Calendar.  According to FP, some 65 State Department nominations are pending in the Senate, 39 of which have made it out of SFRC and onto the Senate floor. Of the 65, 26 are stuck in the Senate Foreign Relations Committee.  The names are listed here.

If the Senate refuses to confirm these nominees, we think President Obama should just appoint them as his Special Presidential Envoys to their respective countries and send them off packing the next day. Never mind Congress.

Yup, that sounds craaazzy!

But … but… no more crazy than the Senate holding on to these nominations for over a year or months on end and leaving our diplomatic missions without the selected representatives of the President. So maybe a tad more crazy is what Congress seriously needs.

Look, there are special envoys and there are special envoys. True that they are the “personal representatives of the President.” For most of them, this is a technical credential accorded their status.  The State Department currently has about 40 special envoys, reps and senior advisors.  For others, like Edward House, also known as Colonel House,  and President Wilson’s chief advisor on European politics and diplomacy during World War I (1914-18), they really do represent the President personally.  You may remember that Colonel House did not even go through a Senate confirmation process; he just went about his work per instruction from the President. So it’s not like this had never been done before.

Certainly, a mass appointment of Special Presidential Envoys would be a bad precedent.  We are also pretty sure our U.S. Senate would be terribly unhappy and offended if President Obama simply announce the appointments of five dozen Special Presidential Envoys in place of his ambassadors. And without the advice and consent of the Senate. Of course, they would!

(Gosh! If this happens,we would missed a whole lot of informative and entertaining performances on C-Span).

That said, if our senators cannot do kumbaya work for the sake of the United States, if they continue trading blame on why the nominees are stuck in the Senate, and if they kept on putting party before country, why then should we mind if they are offended and get ulcers?

Go ahead, President Obama … make our day!

 

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Snapshot: Defense Spending in NATO Member States

— Domani Spero
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On September 2, President Obama arrived in Tallinn, Estonia. From September 4-5, he will be in Wales for the NATO Summit. There will be 60 world leaders, 70 foreign ministers, 70 defence ministers and 28 NATO member countries invited to the UK summit.

According to the CRS, the formal summit agenda is expected to focus on three main issues:

• Enhancing allied readiness and strengthening collective defense and military capabilities, including through increased troop rotations and military exercises in Central and Eastern Europe;

• Marking the conclusion of NATO’s decade-long mission in Afghanistan at the end of 2014 and launching a planned follow-on training mission; and

• Enhancing NATO’s support of partner countries outside the alliance, including through a new “Defense Capacity Building Initiative.”

Apparently, also a key discussion that must be had during the summit is the defense spending of member states.  Below via the CRS:

A key question underlying summit deliberations on collective defense will be whether the allies are willing to devote the resources necessary to meet their stated commitments. As such, a primary objective of NATO leaders and U.S. and UK officials, among others, is to secure allied pledges to reverse the ongoing downward trend in allied defense spending.

In 2013, total defense spending by NATO European allies as a percentage of GDP was about 1.6%; just four NATO allies (Estonia, Greece, the UK, and the United States) met the alliance’s goal of spending 2% of GDP on defense (see Appendix for more allied defense spending figures).  Since 2001, the U.S. share of total allied defense spending has grown from 63% to 72%.13 Many analysts and U.S. officials have long asserted that defense spending in many European countries is not only too low; it is also inefficient, with disproportionately high personnel costs coming at the expense of much-needed research, development, and procurement. In 2013, only four allies (France, Turkey, the United Kingdom, and the United States) met a NATO guideline to devote 20% of defense expenditures to the purchase of major equipment, considered a key indicator of the pace of military modernization.

via CRS

via CRS (click on image for larger view)

Follow the NATO Summit Wales 2014 via GOV.UK here.

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Senate Confirmations: Suzan G. LeVine, Peter A. Selfridge, Pamela K. Hamamoto

— Domani Spero

The Senate confirmations of the Obama nominees continue to trickle down.   Ambassador LeVine’s nomination was announced on January 30, 2014 and she was confirmed by the full Senate on May 1st. Ambassador Selfridge who moved from the WH to the State Department was nominated in December 2013.  Ambassador Hamamoto was nominated in August 1, 2013 and had waited over nine months for her Senate confirmation.

 

  • May 01, 2014 | Suzan G. LeVine, of Washington, to be Ambassador Extraordinary and Plenipotentiary  of the United States of America to the Swiss Confederation, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Principality of Liechtenstein.

 

  • May 05, 2014 | Peter A. Selfridge, of Minnesota, to be Chief of Protocol, and to have the rank of  Ambassador during his tenure of service.

 

  • May 08, 2014 | Pamela K. Hamamoto, of Hawaii, to be Representative of the United States of  America to the Office of the United Nations and Other International Organizations in Geneva, with the rank of Ambassador.

 

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State Dept Responds to an FOIA Two Years After Request — Confusion and Hilarity Follows

— Domani Spero

One of our blog readers asked us about the Freedom of Information Act  (FOIA). Nope, we don’t know much about it except the (b)(6) exemptions which resulted on the redactions of OIG inspectors names from publicly available reports posted online.  In  October 2013, State/OIG finally started disclosing the names of inspectors in publicly available reports, so yay for that.

But because we’re a curious cat, we wanted to know why he was asking us about the FOIA. It turned out, our reader submitted a FOIA request to the State Department in 2012.  He wanted to know about “Meetings between Jeff Gorsky and the AILA.”  Mr. Gorsky is the Chief of the Legal Advisory Opinion Section of the Visa Office of the Bureau of Consular Affairs and AILA is the American Immigration Lawyers Association (AILA), the national association of more than 13,000 attorneys and law professors who practice and teach immigration law. Our reader, Mr. Requester, shared the confirmation of his FOIA request from 2012:

Screen Shot 2014-04-20

After repeated inquiries and prodding, and after almost two years of waiting, a response finally arrived in Mr. Requester’s mail box this year. Note that the subject of the FOIA request is “Jeff Gorsky and the AILA” and the official State Department response to the FOIA request came from Mr. Gorsky himself. Take a look:

Screen Shot 2014-04-21

What the hey?

Is it normal or routine that the subject of the FOIA request is also the signatory of the letter that basically says we found 42 documents but they all contain information that is “personal in nature?”

I don’t know, is it?  Help me out here.  These are presumably from work emails, how can they all be “personal in nature?”

Screen Shot 2014-04-20

Note: FOIA Exemption (b)(6) – permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”

Is it bizarre or is it just totally expected that the responding office (b)(6)’ed just about every name that appears on the documents released?  In handwritten notations that look messy and all?  What’s the use of filing an FOIA if all you get are these scrawny (b)(6)s?  The email above concerns a meeting request on “L1 Visas in Singapore.” So, the names of all  pertinent parties to that meeting are also “personal in nature?”

Processing … processing ….screeeccch bang kaplunga!  Ugh! I don’t get it; I must be, like… like….like, a malfunctioned magnet*.

Folks, the White House publishes online its Visitor Access Records, and heavens help them, there are lots of names listed there; some even include middle names!

On March 16, 2009, just as the new president came to office, the State Department’s Bureau of Administration released an FOIA Guidance from the Secretary of State to the department employees.  In says in part:

On his first full day in office, President Barack Obama signed two memoranda on openness in government – one ushering in a new era of transparency in government, the other ordering a presumption of disclosure in the implementation of the Freedom of Information Act (FOIA). The State Department will be at the forefront of making this commitment a reality.
[…]
As a Department, we should respond to requests in a timely manner, resolve doubts in favor of openness, and not withhold information based on speculative or abstract fears.
[…]
We need every Department employee to manage the challenge of informing the public and protecting information in a way that fulfills the President’s strong commitment to transparency.

Well, what about that, huh?

In any case, the Department of Justice FOIA Guide on Exemption 6 notes that “Personal privacy interests are protected by two provisions of the FOIA, Exemptions 6 and 7(C). … Exemption 6 permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” (1)

The Guide also says that “In some instances, the disclosure of information might involve no invasion of privacy because, fundamentally, the information is of such a nature that no expectation of privacy exists. (49) For example, civilian federal employees generally have no expectation of privacy regarding their names, titles, grades, salaries, and duty stations as employees (50) or regarding the parts of their successful employment applications that show their qualifications for their positions.” (51)

Also this: “if the information at issue is particularly well known or is widely available within the public domain, there generally is no expectation of privacy. “

You should know that we have no expertise on FOIAs. But the State Department on this FOIA case managed to use the (b)(6) exemption to redact the names of the Assistant Secretary of the Bureau of Consular and that “Desk Officer for Singapore Visa matters.”

Here’s a person of the street question: Why would anyone think that disclosing Janice J. Jacobs‘ name as Assistant Secretary of the Bureau of Consulate Consular Affairs (she is on Wikipedia, by the way) would constitute an “unwarranted invasion of personal privacy?” 

C’mon, folks, you gotta admit, this is totally hilarious!

 

Screen Shot 2014-04-20

Let’s compare this to the  emails released under FOIA on the Keystone XL meetings. Also redacted but as you can see on the emails here, the State Department did not use the (b)(6) exemption and instead used (b)(5) which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” But look how this is marked:

Screen Shot 2014-04-22

Click on image to read the released emails.

The FOIA super ninja we consulted (thanks J!) suggested that an immediate appeal be filed.  Mr. Requester told us he already sent in an appeal.  We just hope the response to his appeal would not take two years, and would not include scrawny (b)(6)s for decorations.

Seriously. Do you realize  that if the State Department continue to slap (b)(6)s on FOIA’ed docs so thoughtlessly like this, that the agency will be at the forefront of making President Obama’s commitment to “transparency in government” and “presumption of disclosure” a laughing matter? Pardon me, it is already a laughing matter?  Well, a  competition then on who will be at the forefront.  

Folks, you need to fix this or we may be forced to start a rock band called Twisted Hilarity.    

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Photo of the Day: Secretary Kerry Swears in Ambassador Timothy Broas

— Domani Spero

 

 

Secretary Kerry Swears in Ambassador Broas With Julie Broas looking on, U.S. Secretary of State John Kerry swears in Tim Broas as U.S. Ambassador to the Netherlands at the U.S. Department of State in Washington, D.C., on April 10, 2014. [State Department photo/ Public Domain]

Secretary Kerry Swears in Ambassador Broas
With Julie Broas looking on, U.S. Secretary of State John Kerry swears in Tim Broas as U.S. Ambassador to the Netherlands at the U.S. Department of State in Washington, D.C., on April 10, 2014. [State Department photo/ Public Domain]

 

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