FCC Withholding Details on 2018 ALJ Hiring Concerns Some Experts
The FCC won’t release the votes tally for commissioners' decision to hire Administrative Law Judge Jane Halprin, or the December order hiring her, the Office of General Counsel replied Monday to our Freedom of Information Act request made nearly a year ago. We plan to appeal the denial, and we responded Wednesday to a separate and almost complete FOIA denial received on the same day. Experts who reviewed the ALJ FOIA expressed concerns about the FCC's justifications for withholding the information, and the judge herself gave us some of what the document request sought.
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The OGC said it's withholding the vote record on the hiring under a FOIA exemption that protects personal and medical files, saying releasing it would “constitute a clearly unwarranted invasion of privacy.” The vote record “indicates whether individual Commissioners supported the candidate’s appointment,” the OGC letter said.
Commission votes are part of the public record, and it’s not clear how they affect the privacy of a job candidate, said Thomas Susman, Strategic Advisor to the American Bar Association’s Government Affairs Office and a National Freedom of Information Coalition board member. “I don’t understand how a commissioner’s position on the appointment is a privacy matter,” said Sean Moulton, senior policy analyst at the Project on Government Oversight.
At the time of Halprin’s hiring, Commissioner Brendan Carr told us he voted to hire her. An FCC official speaking on condition of anonymity told us Commissioner Jessica Rosenworcel also voted in favor (see 1812060045). We filed our request for documentation then.
The OGC also invoked privacy to decline to release the resumes of Halprin and her predecessor, longtime ALJ Richard Sippel. Though the OGC’s office said the resumes contain personal contact information, the agency should have little trouble redacting information such as addresses or phone numbers, Sussman said. It's common for the FCC to partially redact records released under a FOIA request to hide personal information while leaving the nonpersonal portions readable, and the agency has done so numerous times for other of our FOIA requests. The OGC letter said “the resumes are open to personal inferences, such as a candidate’s reasons for seeking new employment,” and the nonexempt information on the resumes is “inextricably intertwined” with exempt, private information.
Invocation of privacy in this manner is unusual, said Sussman. The resumes of witnesses before Congress are made public, and releasing some information about a prospective ALJ is warranted, he said. The FCC's “paying taxpayer dollars to these people; they have positions of authority,” Sussman said. “The public has a right to know who they are, if they have any relevant experience.”
Halprin's resume is a two-page document with a redacted portion at the top of only one page, presumably obscuring her personal information. Despite the OGC letter’s claim that personal information was inextricable from nonexempt information, the rest of the document includes only her work history, nearly all of it as a federal employee. The commission defended its FOIA decision when asked to comment for this story.
Halprin’s resume shows she was FCC assistant general counsel for ethics for a year before being chosen as ALJ, and also was the alternate designated agency ethics officer and liaison to the federal Office of Government Ethics. Before that, she was FCC ethics counsel for 13 years, and had that role for the Office of the Vice President in 2013. Halprin was also ethics adviser to the Office of White House Counsel during part of the Obama administration. Before becoming ethics counsel, she was an attorney in various FCC departments going back to 1989. Halprin had stints in the Wireless Bureau, then-Mass Media Bureau, Enforcement Division (now bureau) and then-Common Carrier Bureau. Before joining the FCC, she clerked in U.S. District Court in Providence, Rhode Island, and from 1983 to 1985, was a producer/director at a New Hampshire TV station. She was placed on the ALJ register in 2016, the resume said.
"An employee’s resume reflects that person’s reflection of herself, and as an institution, the FCC has the duty to protect these expressions as private personnel matters, balanced with the public’s right to know," a spokesperson emailed. "Whether or not the employee chooses to share the resume herself is not for the FCC to decide.”
The OGC letter also cites attorney/client privilege and an exemption that protects the agency's deliberative processes as a rationale for not releasing internal FCC emails on the hiring process, the letter said. Though the FOIA request had sought information on the agency’s ALJs going back to 2008, the OGC letter reported that only eight responsive records were found. “I am a bit surprised that they’re refusing to release anything given the breadth of your request,” said Moulton.