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Federal Court Orders Disclosure of Former AG Matt Whitaker’s Ethics Disclosure Forms

By Matt Topic

When Jeff Sessions was finally berated into resigning the Attorney Generalship by the president whose candidacy he supported long before other establishment Republicans had detected the seismic shift in what was electable in 2016 America, a void was left in the Department of Justice. Bill Barr eventually filled that void with precisely the sycophantic brilliance called for by a Trump AG, but for 99 days before that, Matt Whitaker, Sessions's Chief of Staff, sat atop Justice. His qualifications included his previous criticism of the Mueller investigation and, earlier in his career, using his status as a former U.S. Attorney to threaten unhappy customers of a patent company that promoted time-travel cryptocurrency and a toilet designed for men with large genitals, and that was eventually fined tens of millions of dollars by the Federal Trade Commission.

As a high-ranking Justice official, both as Sessions's Chief of Staff and Acting Attorney General, Whitaker was required by the Ethics in Government Act of 1978 to complete and submit both "new entrant" and annual ethics disclosures known as Form 278e to the Departmental Ethics Office, which is the corner of the DOJ that processes the forms, certifies their compliance with the statute, and publishes them online for all to see. But due to "administrative error," DEO did not process or publish any of Whitaker's forms for a full year, and then published his new entrant and annual reports together in bulk with an indication that each of the forms had been revised five separate times before they were certified.

Acting on the apparently radical idea that the public ought to know more about how and why it took the highest ranking law enforcement official in the country, and one with such colorful business experiences, five tries to satisfy his ethics disclosure obligations, BuzzFeed News reporter Zoe Tillman submitted a Freedom of Information Act request for all the earlier failed iterations of the forms.

DOJ first "misunderstood" the request and tried to produce only the final report, then blew well past the statutory deadlines while the "request was under review," forcing BuzzFeed to file suit in D.C. federal district court. As it often finally does once it has been sued, DOJ eventually got around to processing the request, but refused to produce the failed iterations of Whitaker's ethics disclosure forms.

Connoisseurs of federal FOIA violations will appreciate the bold creativity of the DOJ FOIA team in its effort to keep this information secret. Headlining the bill was Exemption (b)(5) for deliberative process, relying on the remarkable theory that these various legally inadequate "drafts" rejected by DEO were "internal policy-related considerations" that were "at the very heart of the deliberative-process privilege." DOJ also claimed that releasing any of the information would be a clearly unwarranted invasion of personal privacy under Exemption 6.

Judge Trevor McFadden found that Whitaker's privacy interests in any "extra" unnecessary financial information he disclosed and removed from later attempts with the blessing of DEO outweighed the public interest in disclosure under Exemption 6, but not the information that was added to each successive submission and ultimately disclosed to the public once Whitaker's forms were eventually certified as legally compliant. BuzzFeed v. Department of Justice, No. 1:19-cv-00070 (D.D.C. Dec. 4, 2019).

This means that the public can determine what Whitaker improperly failed to disclose, for whatever reason, by comparing each of the successive submissions.

The court also rejected DOJ's avant-garde and potentially far-reaching view of Exemption (b)(5). As we saw it and argued it, there was no deliberation to be found in these submissions, and notably, we had not requested DEO's internal discussions about them; rather, we asserted, "each time Mr. Whitaker made a submission, it was necessarily with the understanding that if he—the Acting Attorney General of the United States, and previously Chief of Staff to the Attorney General—had complied with applicable law, the information would be certified and made public. And, each time DEO found that Mr. Whitaker did not comply with his legal obligations and required that he make revisions, DEO undertook a final action on that submission, not any "deliberation.'" Indeed, we argued, "by DOJ's logic, the IRS could claim the deliberative process exemption over discussions with a taxpayer about the legal compliance of a tax return or guidance on a future return."

Judge McFadden agreed. "To be clear, the draft forms at issue here are fill-in-the blank standardized forms that seek purely factual information about the filer's financial situation," no different from the factual information that is almost always found to be outside the scope of the exemption under abundant case law. Further, "DOJ was not formulating policy at all. Its ethics officials were merely trying to assist in the accurate completion of Whitaker's financial disclosure forms in compliance with the Ethics in Government Act and [agency] policy." And "DOJ's concerns about the chilling effect of disclosure" were "unfounded and unconvincing," not least of which because DOJ officials are required by law to make these disclosures fully and accurately. The court was not required to address our argument under the "foreseeable harm" provision added to the statute in the 2016 amendment specifically to clamp down on these kinds of abuses of the deliberative process exemption, which had come to be known as the "withhold it because you feel like it" exemption.

Our FOIA team at Loevy & Loevy is currently litigating over 200 federal and state FOIA cases for a variety of clients. BuzzFeed News continues to fight aggressively for access to public records, having filed 20 FOIA lawsuits in 2019 alone, including a wide variety of challenges to secrecy around the Mueller investigation and report. Unfortunately, the Trump administration has taken the terrible transparency record of the Obama administration (and those before it) to new lows, frequently asserting the kind of absurd, bad-faith arguments it used to shield its Acting Attorney General from public scrutiny. (Cough....swamp...cough cough cough.) And DOJ in particular has mastered the art of backlogging itself so badly, while refusing to seek additional funding from Congress or to reallocate money from things like tens of millions of dollars in office furniture, that any request requiring more than a handful of pages now can take years to be released, long after the implicated issues have passed from public attention, with some relief found in the courts but not nearly enough. But each time a court rejects a preposterous abuse of the FOIA statute by our nation's leading law enforcement agency, we chip away at the unfounded deference the government enjoys in FOIA litigation and get one step closer to the transparency we all deserve.

Matt Topic runs the FOIA and Transparency practice at Loevy & Loevy from its Chicago office.

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