New FOIA Request Seeks Docs Submitted to DOT By Maersk & Other Vessel Operators Pursuant to EMBARC Sea Year Rules, Including Reports of SASH, Completed SASH Investigations, & Updated SMS Plans

Maritime Legal Aid & Advocacy, Ltd.

http://maritimelegalaid.com

help@maritimelegalaid.com           

December 28, 2021

VIA E-MAIL to “ost.foia@dot.gov”

Attn: Michael Bell

OST FOIA Officer

U.S. Dept. of Transportation

Re: Freedom of Information Act Request 

Dear Mr. Bell,

     This letter constitutes a request under the Freedom of Information Act (“FOIA”) and is submitted on behalf of Maritime Legal Aid & Advocacy (“MLAA”) to the United States Department of Transportation (“DOT”). This request is being submitted at the Department level. 

     It should be noted that with respect to two separate FOIA requests submitted directly to the U.S. Maritime Administration (“MARAD”) FOIA Officer by our organization more than 240 days ago, the MARAD FOIA Officer has intentionally obstructed the FOIA process by intentionally failing to produce documents related to your department’s handling of instances of sexual misconduct committed against students at the USMMA.

     The MARAD FOIA Officer has also refused to communicate with our organization regarding our previous FOIA requests, and has refused to offer any explanation for MARAD’s illegal stonewalling of our organization's important and lawful FOIA requests. For these and other valid reasons, we will not be re-submitting this FOIA request to any sub-agency of the DOT.     

Background:

     Maritime Legal Aid is a non-profit legal aid and advocacy organization advocating for the rights of mariners.

     On December 15, 2021 the DOT released a set of public standards called “Every Mariner Builds a Respectful Culture (“EMBARC”).” The EMBARC mandatory standards create rules for Vessels Operators who desire to participate in the USMMA Sea Year program. 

     The EMBARC standards require participating Vessel Operators to submit various documents to the DOT in order to participate in the Sea Year program. This FOIA request seeks documents submitted to the DOT pursuant to the EMBARC standards released by DOT on December 15, 2021.  

     Consistent with our organization’s mission, and pursuant to the Freedom of Information Act, 5 U.S.C. § 552, MLAA respectfully requests the following information from DOT:

Documents and Data Requested:

1. All documents related to reports and notifications of “allegations of SASH-involved behavior regardless of whether the behavior involves a cadet” received by the DOT from “Vessel Operators” pursuant to EMBARC standard III(8a).

2. All documents related to “complete reports of investigation” of SASH-involved behavior involving a cadet, including complete reports of investigation, received by the DOT from “Vessel Operators” pursuant to EMBARC standard III(8a).

3. All documents related to reports and notifications of SASH-involved behavior involving a cadet received by the DOT from “Vessel Operators” since January 1, 2017. All Documents” includes, but is not limited to, reports, correspondence, agreements, minutes, memoranda, e-mails, databases, and notes.  This request includes all documents that have ever been within DOT’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.

4. All “Accession Checklists” and related documents submitted to DOT by “Vessel Operators” pursuant to EMBARC Standards.

5. All “copies of SASH policies” and related documents submitted to DOT by “Vessel Operators” pursuant to EMBARC standards.

6. All “statements of compliance” and related documents submitted to DOT by “Vessel Operators” pursuant to EMBARC standards.

7. All “Safety Management Systems” and related documents submitted to DOT by “Vessel Operators” pursuant to EMBARC standards.

8. All “SOCP SASH Tool Kit quick reference guide brochures” created or mandated by DOT, and all “SOCP SASH Tool Kit quick reference guide brochures” submitted to DOT by “Vessel Operators” pursuant to EMBARC standards.

9. All “Maritime Sexual Assault and Sexual Harassment Prevention Training” guides and related documents referenced in the EMBARC standards.

10. All documents related to “Compliance Reviews” conducted between Vessel Operators and DOT pursuant to pursuant to EMBARC standard III(10). All Documents” includes, but is not limited to, reports, correspondence, agreements, minutes, memoranda, e-mails, databases, and notes.  This request includes all documents that have ever been within DOT’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.   

Request for Expedited Processing:

Expedited processing is justified because:

1. This request is made by an organization “primarily engaged in disseminating information to the public” which MLAA accomplishes through its large mailing list of newsletter subscribers, via its widely read blog located at https://www.maritimelegalaid.com/blog, and via its instagram account;

2. This request covers information about which there is an “urgency to inform the public about an actual or alleged federal government activity”; and  

3. The subject of this request is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity which affect public confidence.

     There is an “urgency to inform the public” about whether or not Vessel Operators are complying with the EMBARC standards released by DOT on December 15, 2021. If Vessel Operators are not complying with the EMBARC standards, students at the USMMA, students at other state maritime academies, and all USCG-credentialed mariners at sea aboard U.S.-flag vessels participating in the Sea Year program remain at a greatly heightened risk of sexual assault aboard their vessels.

     There is a “compelling need” for this information, because a failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or individuals. The information MLAA seeks in this request has the potential to immediately prevent actual sexual assaults at sea from occurring. This is an incredibly urgent need. Any delay in processing this request could literally result in mariners being sexually assaulted at sea.

Expedited Processing Certification:

     *I hereby certify that the reasons for expedited processing I have given here are true and correct.*   

Request for “News Media” Fee Status and Fee Waiver:

     MLAA is a “representative of the news media” for fee waiver purposes. Based on our status as a “news media” requester, we are entitled to receive the requested records with only duplication fees assessed. Further, because disclosure of this information will “contribute significantly to public understanding of the operations or activities of government,” any duplication fees should be waived. Under FOIA, “Representative of the News Media” is defined as “[a]ny person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.”

     Please visit maritimelegalaid.com to find numerous examples of news articles created by MLAA which required our organization to take raw materials from documents obtained via the Freedom of Information Act and then use those raw materials to create completely distinct works that were distributed to a global audience. 

     There is no doubt that the information we are seeking will contribute significantly to public understanding of U.S. Vessel Operators’ compliance with the provisions of the recently released EMBARC standards. The FOIA’s fee waiver amendments were enacted to allow further disclosure to nonprofit, public interest organizations, since the FOIA as a whole is to be construed broadly in favor of disclosure. See, e.g., Dep't of Air Force v. Rose, 425 U.S. 352, 366 (1976). 

     Further, the disclosure of this information is of no commercial interest to MLAA. Under the FOIA, a commercial interest is one that furthers a commercial, trade, or profit interest, as those terms are commonly understood. See, e.g., The Freedom of Information Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10012, 10017–18 (Mar. 27, 1987). None of those interests are present in this request, as MLAA works to achieve its goals through media outreach and public education.     

Conclusion:

     We are willing to pay up to $1,000,000.

     Thank you for your consideration of this request. As provided for by federal regulation, I will anticipate your determination of our request for expedited processing within 10 business days. For questions regarding this request I can be contacted via email at help@maritimelegalaid.com.

Respectfully Submitted,               

J. Ryan Melogy

MLAA Chief Legal Officer

Coordinator, MLAA Open Government Project