Ep. 1: Closed, Substantiated

A routine request yields newsworthy records. Every time.

Happy first FOIA Friday of February, Media Requestors!

This Axios report from Alex Thompson about a certain President structuring his daily activities around a cable news program, enthusiastically interacting with one of its hosts, and forcing White House staff’s to respond to this obsession—even going so far as to structure their workdays around the program—inspired Episode One.

It reminded me of the time I saw this in a FOIA response for records of closed-substantiated DHS-OIG investigations:

All of that seems like perfectly sound and not very surprising media advice. What someone probably thought was more problematic, as indicated by the handwritten underlining in the investigative file, was this:

It’s not as though the writer was hating on the rest of the national security press corps:

But these emails weren’t the reason this particularly official wound up being the subject of a substantiated investigation and criminal referral. Though he is absolutely presumed innocent of any crime until proven guilty, the US Attorney’s Office declined prosecution “given the low loss amount.”

If you’re curious about that story, or the FOIA that surfaced it, read on!

The ‘Closed-Substantiated’ FOIA

I remember the night I saw my first “Closed-Substantiated” report from an Inspector General’s Office. I was sitting at a bar around the corner from my apartment drinking club soda with lime and tabbing through page after page of records the government handed over in PDF form. I liked to review new public records in public back then to make what can be a really boring process feel more exciting. And then I would look up from my screen, scan the room, and ask myself, “Okay, who would actually care about this and why?” As a bit of a gut-check.

The cover with the shield jumped off the screen: “Report of Investigation.”

[Image above is an example only — not the actual cover]

The news value of this document seemed obvious: It was a record of an agency watchdog finding, after a (supposedly) thorough investigation, that a government employe or contractor engaged in waste, fraud, or abuse. Depending on who they are, what they did, and how serious the DOJ would treat the violation—in that order—Closed-Substantiated finding could serve as the basis for criminal prosecution, termination, suspension, or reprimand.

In the case looking back at me from my laptop screen on top of the bar, DHS’s Inspector General referred the subject of the investigation for criminal prosecution to the U.S. Attorney’s Office. A person died, and he’d falsified logs and lied to investigators about it. The DOJ ended up declining to prosecute. I’ve been asking to seek the declination memo so I could understand the reasons supporting that decision for the past half decade, to no avail.

I got curious about what else the IG thought warranted criminal prosecution, so I started habitually requesting “all Closed-Substantiated reports” from various inspectors general about various agency components. Sometimes I only asked for a list of the case numbers, so I could get a sense of how many there were, and select any that might seem interesting. Sometimes I asked for the full Report of Investigation with exhibits. Sometimes I settled for the exhibits only. Point is, there are lots of ways to ask for this stuff, depending on what you’re looking for, what kind of timeline you’re one, and what sort of budget you’ve got to claw records from the government and dig through what they give you.

I like the elegance of this request for a bunch of reasons. First, because the investigation is closed, we don’t run into Exemption 7A (open investigation) withholdings. Second, because the investigation involves substantiated allegations of waste, fraud, or abuse, the redactions are generally light, and destined to get lighter if we challenge them. The higher up the wrongdoing, the more the public interest weighs in favor of lifting those pesky privacy redactions under Exemptions 6 and 7C. Third, because of the nature of the records, there’s a built-in finding by the agency that can support expedited processing. This is exactly the type of record FOIA requires agencies to release with a little redaction as possible. And finally, for the same reasons, the public interest weighs heavily in favor of paying our lawyers and advancing the case on the docket in case we ever have to sue.

Closed-Substantiated Investigations are documents agencies should affirmatively disclose under 5 USC 552(a)(2)(D), in my humble, not-practicing-lawyer opinion. The fall under either under the Jinx Provision (records likely to be requested more than one due to their subject matter) or the Beetlejuice! Provision (records requested three or more times).

The results I’ve gotten are a treasure trove of unreported stories that I’ll probably never have the time to properly explore. So as an example, I decided to share one record that came in with a recent ‘Closed-Substantiated’ response.

‘It’s Hard for Me to Justify This Event’

The official who wrote the emails I screenshotted above has a bio that makes him immediately identifiable to anyone with an internet connection or even the slightest bit of context. It’s not my intention to malign him in this post. He avoided criminal indictment and, it appears, kept his security clearances and reputation.

Maybe I’m low-key scared of his bio, and the retaliation it suggests I’d face if I followed my natural instinct as a shitposter. Were it not for his demonstration of both a ton of friends in very high places and the ability to mobilize them in his interests when it suits him, I’d likely just blast out these records. Maybe I recognize that a person who does what these records indicate he was doing and gets away with is someone who’d have no trouble making my insignificant little life miserable fairly quickly.

These fears are on one side of the scale, and they’re balanced against the frustration I feel seeing a person who holds such a position of trust, access, and power over the lives, deaths, and futures of fellow humans essentially skirt responsibility despite official findings of wrongdoing, particularly after spending over a decade of my life in community with people who’d been caged and separated from their families for doing nothing more than moving and exercising their legal right to seek protection from the government he worked for.

So while the US Attorney assigned to the case deemed the loss to the government to be too low to warrant her attention, the breach of trust and findings of illegal behavior by the OIG warrant mine. And maybe yours?

Basically, this official engaged in a pattern of using government resources from agencies to do stuff he wasn’t supposed to be doing, at least according to those agencies’ higher ups.

He tried to expend government resources on a private industry conference where he wanted to message-test legislative proposals that the administration and the government had not yet approved. Those proposals, incidentally, could therefore give the attendees a competitive advantage in bidding contracts.

He used time off that he’d requested to attend reserve duty to, as he later put it in an email, “play hooky” and visit another agency’s operations only to pitch that operation for more funding and support from the US government. And then he did it again the following here, according to the records.

He also may have misused the classified diplomatic pouch system.

The FOIA records reveal he did all these things in addition to proposing a plan of leaking classified information to the Journal reporter, with the permission of the Office of the Director for National Intelligence, in aid of his preferred legislative priorities.

But because the US Attorney’s Office saw these not as issues implicating misuse of office or breach of public trust that might warrant prosecution, but as an issue of playing hooky with a “low loss to the government”, nothing came of the IG’s investigation. It’s unclear if he even returned the money.

If you’d like to see these records before they go live on DocumentCloud, feel free to find me there and request them as a Collaborator, or subscribe to the paid edition of this Stack, where I’ll try and practice a little courage and write the full story.

In the meantime, file as many “Closed-Substantiated” IG FOIAs as you can. There are tons of these stories like this sitting around, unreported.