BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
“For every breaking story and revelation made possible by the FOIA, countless others are undoubtedly buried as the law’s effectiveness sags under the weight of processing backlogs resulting from, among other things, a lack of resources and reliance on outdated technology, as well as inconsistent application in terms of disclosure and overbroad use of exemptions. The law, which was signed on July 4, 1966, is drastically in need of meaningful reform to bring it into the 21st Century." On June 30th, 2016, President Obama signed much-needed reforms into law through the FOIA Improvement Act of 2016.
In honor of FOIA's 50th birthday, GAP's Legislative Director and Investigator, Shanna Devine, shares how FOIA helped prominent GAP Whistleblower Robert MacLean.
Until 2006, Robert MacLean was an honorably discharged military veteran, a 10-year federal law enforcement officer as a U.S. Border Patrol Agent and a U.S. Department of Homeland Security (DHS) / Transportation Security Administration (TSA) / Federal Air Marshal (FAM) with an unblemished record. In late July 2003, he successfully blew the whistle on agency plans to secretly neutralize budget shortfalls from “buddy system” pork barrel contracts by canceling long distance air marshal coverage. Most startling, the plan was scheduled to take place during a suicide terrorist hijacking alert for a September 11, 2001 (9/11) style rerun on a more ambitious, international scale. After public outcry and congressional outrage, DHS withdrew the order, and said it all had been a mistake. Three years later, however, the agency fired Mr. MacLean by retroactively designating the previously-unrestricted text message in his whistleblowing disclosure as Sensitive Security Information (SSI), which is one of many secrecy categories created by agencies for unclassified information.
Mr. MacLean defended two unanimous favorable U.S. Court of Appeals for the Federal Circuit decisions before the U.S. Supreme Court, and in January 2015 the U.S. Supreme Court ruled in Mr. MacLean’s favor in a 7-2 decision. He has since returned to work.
Mr. MacLean discovered through a Freedom of Information Act request that he and Frank Terreri, another FAM whistleblower, were the subjects of a 182-page investigative report by then-FAMS Director Quinn requesting the DHS Inspector General conduct a criminal investigation.[i]
During the investigation, the Federal Air Marshal Service (FAMS) was under the purview of Immigration and Customs Enforcement (ICE). Former director for the ICE Joint Intake Center Matthew Issman and subsequently Assistant Inspector General for Treasury, tasked with overseeing the investigation, stated in a letter to Congress that “Director Quinn’s main focus was to revoke [Robert MacLean and Frank Terreri’s] security clearances, which he actually did in one case…a grave act that would eventually result in their terminations.” He further recounted, “Director Quinn kept explaining to [ICE Office of Professional Responsibility (internal affairs)] of how ‘slow’ our investigations were and insisted that we act faster, and used the security clearance revocation to get around this.” [ii]
Mr. MacLean’s FOIA request also yielded a response by the DHS OIG to Director Quinn’s investigative referral memorandum, asserting that “no criminal activities nor serious misconduct issues are alleged; therefore these allegations are best addressed internally by the FAMS senior management.” [iii] This conclusion precluded credibility for a clearance action. However, by also advising FAMS management to take whatever “corrective program and/or employee disciplinary action” it deemed appropriate, the DHS/OIG gave management a green light to continue targeted harassment against MacLean.[iv]
[i] Pursuant to FOIA Request # 2006—092. Memorandum from Elizabeth Redman, Assistant, Inspector General for Investigations, Office of Inspector General Office of Investigations, U.S. Department of Homeland Security Re: OIG Complaint Number R04-07042 (Aug. 25, 2004).
[ii] Letter from Matthew L. Issman, Former U.S. Immigration Customs Enforcement/Office of Personnel Management Intake Director, to Members of Congress, 2 (May 12, 2009), http://pogoarchives.org/m/wi/fams-letter-20090512.pdf.
[iii] Pursuant to FOIA Request # 2006—092. Memorandum from Elizabeth Redman, Assistant, Inspector General for Investigations, Office of Inspector General Office of Investigations, U.S. Department of Homeland Security Re: OIG Complaint Number R04-07042 (Aug. 25, 2004).