January 19, 2006    Volume 13, No. 2

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Controversy Continues Over Outsourcing Report: Commerce Department 'Disses' Congressional Democrats

BY KEN JACOBSON ken@manufacturingnews.com

The Commerce Department has refused to provide Democratic members of Congress with information they requested concerning a controversial report on outsourcing of jobs in the high tech sector. In a letter to ranking minority member of the House Science Committee, the Commerce Department says it does not have to comply with the request due to provisions of the Freedom of Information Act (FOIA). But citing the FOIA as a means to deny information to members of Congress, as Commerce does, is rare and its wisdom may be questionable, according to lawyers familiar with the statute.

The outsourcing report, which carries a July 2004 date and the title "Six-Month Assessment of Workforce Globalization in Certain Knowledge-Based Industries," was made public in September 2005 in response to a Freedom of Information Act request filed by Manufacturing & Technology News (MTN, Oct. 12, 2005, p. 1). The report had been ordered in report language accompanying the Commerce Department's fiscal year 2004 appropriation requiring its Technology Administration to "conduct an assessment of the extent and implications of workforce globalization in knowledge-based industries."

The report's brevity as released -- 12 pages -- and the paucity of original research it contains have caused some to question the extent to which it represents the work actually carried out by the agency's analysts. The Bush administration political appointee at the Technology Administration responsible for the report has since left the department.

Rep. Bart Gordon (D-Tenn.), the Science Committee's ranking member, was notified of the Commerce Department's decision not to provide the report's background information in a letter that was dated December 23, 2005, but first arrived at Gordon's office last week. With the House in recess, Gordon could not be reached for comment before MTN went to press.

The Commerce Department refusal, sent over the signature of Deputy Assistant Secretary of Commerce for Technology Policy Daniel Caprio, stated that "a thorough and exhaustive search" by TA personnel had "located 157 records responsive" to an October 11, 2005, request for information sent to Commerce Secretary Carlos Gutierrez by Gordon, Rep. Jerry Costello (D-Ill.), and Rep. David Wu (D-Ore.). [For the specifics of that request, please see box to the right.]

Those records, Caprio's letter states, "consist of internal e-mails between Government employees expressing comments and recommendations about the Assessment, drafts, and other predecisional, deliberative internal memoranda pertaining to the Assessment."

Citing the exemption in subsection (b)(5) of the FOIA (5 USC Sec. 552), commonly referred to as the "predecisional privilege" or "deliberative process privilege," the letter explains that in each case the record being "withheld" was "predecisional and antecedent to the adoption of an agency policy." This material, says the letter from Caprio, is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters."

The Commerce Department refusal to provide the congressmen with the information it requested brings two questions to the fore:

1. Was the department compliant with the FOIA in withholding in their entirety the drafts and associated documents they requested?

2. Was the Commerce Department acting properly in treating their oversight request under the FOIA in the first place?

Another question was raised by the e-mailed response of the department's Public Affairs Office to a query by Manufacturing & Technology News as to why the FOIA route was chosen. "We are not going to comment on a private letter to a Member of Congress." That question is: Why characterize as "private" a letter signed by a department officer acting in his official capacity that responds to an inquiry made by members of Congress acting in their official capacity?

The Technology Administration "could be at fault" in its blanket withholding of the records, says Roy Schotland of Georgetown University Law Center, a specialist in administrative law who is not involved in the matter. The content of these documents "can't all be predecisional" in nature, he says. Bureau officials may be obligated under the FOIA to disclose "the factual matters in the report even when the non-factual can be withheld."

Indeed, the Freedom of Information Act states: "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt" under the deliberative process privilege or another of the eight other exemptions listed in the law.

In the Freedom of Information Act Guide posted on its Web site (www.usdoj.gov/oip/foi-act.htm), the Department of Justice advises Executive Branch agencies to "pay particularly close attention" to the segregability requirement so that they can "adequately demonstrate to [a] court that all reasonably segregable, nonexempt information -- perhaps even including individual numbers contained in multiple-digit codes -- was disclosed."

Even the Circuit Court opinion that Caprio's letter cited to corroborate the decision to withhold the material requested by Gordon and his colleagues, Coastal States Gas Corp. v. Department of Energy, states that a Supreme Court opinion, EPA v. Mink, has "established the principle that the [FOIA's deliberative process] privilege applies only to the 'opinion' or 'recommendatory' portion of the report, not to factual information which is contained in the document."

But Congress made no request that policies or actions be proposed in charging TA with conducting what it called an "assessment." There are no policy recommendations contained in the June 2004 report. It appears that only the first of three "purposes" for the deliberative process privilege named in the Coastal States Gas opinion cited in Caprio's letter might be relevant to it:

o "To assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism;

o "To protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and

o "To protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action."

Technology Administration analysts who contributed to the report made a December 2004 presentation to the Association for Computing Machinery on their research that was packed with statistical data. As such, it might be inferred that TA possesses a significant amount of relevant factual information that the Commerce Department might be obligated to disclose under the FOIA.

Question No. 2 is whether the department acted properly in treating the congressmen's request under the FOIA. This question, with a corollary: whether, even if acting properly, it was acting wisely -- raises a "perennial issue" associated with "the intersection of practical politics and legal uncertainty," says one long-time observer of relations between the Executive and the Legislative branches.

The FOIA, in the language of its own subsection (d), "is not authority to withhold information from Congress" -- irrespective of the nine specific exemptions listed in subsection (b), of which the deliberative process privilege is one, that "authorize withholding of information or limit the availability of records to the public."

But the distinction between "Congress" and "the public" turns out to be less unambiguous than may appear. The act's "phrasing leaves somewhat unclear exactly which requests should be treated as special ones 'from Congress,' " says a 1984 Guidance from the Justice Department's Office of Information and Privacy cited in the current Freedom of Information Act Guide.

The guide takes the position that "individual Members of Congress possess merely the same rights of access as those guaranteed to 'any person' " under the FOIA. It quotes the 1984 Guidance to the effect that "'[e]ven where a FOIA request is made by a Member clearly acting in a completely official capacity, such a request does not properly trigger the special access rule of subsection ([d]) unless it is made by a committee or subcommittee chairman, or otherwise under the authority of a committee or subcommittee.' "

Even if the executive can make a case for treating a FOIA request from a member of Congress as it would a FOIA request from a member of the public -- and one legal expert pointed out that Congress has in essence "acquiesced" in the agencies invoking the subsection (b) exemptions by not changing the statute subsequent to the 1984 Guidance -- can agencies treat under the FOIA a request that members of Congress did not make under that statute?

"Can they do so? Yes. Do they do so? Yes," said Carl Stern, a media law specialist at George Washington University. He nonetheless called it "a rarity" for "agencies [to] transmute" an oversight request into a FOIA request. "It may happen if the request comes from an entity that an agency does not vibrate sympathetically with," says Stern.

Stern pronounced himself "not about to jump to conclusions" regarding TA's treatment of the request by Gordon and his two colleagues, of which he had no first-hand knowledge. It could simply have been "mishandled" by the Commerce Department, he speculated.

Still, Stern observed that TA's action could "suggest a lack of respect for Congress as a coequal institution. To use modern language, it's 'dissing' members of Congress."

The way individual members' oversight requests are handled is "all about agency discretion," said the observer of relations between Congress and the Executive. But as a rule, "you don't get [members] angry, because you never know what will happen" in the future. And "case law says you do what you can to fulfill a request -- you don't just give them the finger, even if they're in the minority."

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