USCG FOIA Appeal #2 (CG-INV)
1 April 2021
Maritime Legal Aid & Advocacy, Ltd.
maritimelegalaid.com
Commandant (CG-6P)
Attn: FOIA APPEALS
2703 Martin Luther King Jr. Ave.
S.E. STOP 7710
Washington DC, 20593-7710
Re: Freedom of Information Act Appeal
Dear FOIA Coordinator:
This letter constitutes an appeal under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and is submitted to the United States Coast Guard ("USCG") by Maritime Legal Aid & Advocacy, Ltd. (“MLAA”). MLAA is appealing the determinations of Captain Jason Neubauer, Chief, Office of Investigations and Casualty Analysis, described in Neubauer’s FOIA Interim Response Letter dated January 8, 2021.
Background
Maritime Legal Aid & Advocacy, Ltd. (MLAA) is a non-profit legal advocacy organization working to end shipboard sexual misconduct in the U.S. maritime industry. We believe the problem we are trying to solve is a very significant problem that affects far too many of the more than 215,000 USCG credentialed mariners who work in this vital industry. In furtherance of our mission, MLAA seeks documents from the USCG regarding the USCG’s enforcement (or non-enforcement) of 46 USC § 10104, also known as the “Federal Shipboard Sexual Assault Allegation Reporting Law,” and documents relating to investigations of sexual misconduct committed by USCG credentialed mariners.
Over the past 30 years the USCG has released very little public information regarding its enforcement of laws and regulations against sexual misconduct by USCG credentialed mariners. Through the FOIA process, MLAA seeks to pierce the veil of administrative secrecy that surrounds this important issue, open USCG action to the light of public scrutiny, and make the maritime workplace safer for hundreds of thousands of Americans.
Procedural History
On July 29, 2020, in an amended FOIA request, MLAA requested the following records from the USCG:
All reports of sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 since the law was added to the Code of Federal Regulations in 1989, with any personally identifiable information about the victim or the accused omitted from the report, only if required by law.
All Documents related to an investigation or punishment of any person or corporation for a failure to notify the USCG of a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code, pursuant to 46 U.S. Code § 10104 since the law was added to the Code of Federal Regulations in 1989. “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 USCG’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All Documents related to any investigation of sexual misconduct of any kind initiated against any USCG credentialed mariner, including investigation reports and related documents, by the USCG or the CGIS since 46 U.S. Code § 10104 was added to the Code of Federal Regulations in 1989, with any personally identifiable information about the victim or the accused omitted from the report, only if required by law. “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 USCG’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
MLAA’s request was assigned the following FOIA I.D. number: 2020-CGFO-01886.
In MLAA’s FOIA request we sought Expedited Processing and waiver of all fees.
MLAA was subsequently notified by the USCG that our application for Expedited Processing had been approved and that all fees related to our FOIA request had also been waived.
On December 22, 2020, nearly 6 months after filing our amended FOIA request, MLAA received an interim response from the USCG in a letter signed by Barbara Whitelaw, Chief of the Office of Information Management at USCG Headquarters. Whitelaw’s Interim Response Letter is one of two separate Interim Response Letters MLAA has so far received in response to our FOIA request.
Whitelaw’s letter pertains to documents in the possession of:
1) The U.S. Coast Guard Investigative Service (CGIS), and
2) The USCG Administrative Law Judge Program
A second Interim Response Letter dated and received by MLAA on January 8, 2021 pertains to documents in the possession or control of the USCG Office of Investigations & Casualty Analysis (CG-INV), and was signed by Captain Jason Neubauer, USCG.
This appeal pertains only to the determinations made by Captain Jason Neubauer in his Interim Response Letter of January 8, 2021. MLAA has already filed a separate FOIA appeal in response to Barbara Whitelaw’s Interim Response Letter.
Captain Neubauer’s Misstatement of Our FOIA Request:
In Barbara Whitelaw’s Interim Response Letter, she repeated, verbatim, at the beginning of her letter, the three categories of records we are seeking in our FOIA request.
In his Interim Response Letter, Captain Jason Neubauer took a different approach. First, he misstated our FOIA request. He then proceeded to produce a selection of documents based on his misstatement of our FOIA request instead of documents responsive to our request.
In his Interim Response Letter Neubauer wrote:
This is the interim response to your Freedom of Information Act (FOIA) request to the U.S. Coast Guard (USCG), dated August 5, 2020, for Enforcement Reports involving sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 occurring from 1990 to present.
To be clear, MLAA did not specifically request “Enforcement Reports involving sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 occurring from 1990 to present.”
We have already stated the relevant language of our FOIA request in the Procedural History section of this appeal, and will not waste words restating it again here.
Appeal #1
We appeal the entire response of the CG-INV to our FOIA request on the grounds that Captain Jason Neubauer did not respond to our FOIA request and instead responded to his own inaccurate description of our FOIA request, and on the grounds that because of his inaccurate description of our FOIA request, records or parts of records responsive to our request have been withheld by the CG-INV.
MLAA does not believe the CG-INV provided a response to our FOIA request, and we appeal the determinations of Captain Jason Neubauer and the CG-INV on this basis.
Our Request for Reports of Sexual Offenses pursuant to 46 U.S. Code § 10104
46 U.S. Code § 10104 reads:
(a) A master or other individual in charge of a documented vessel shall report to the Secretary a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code.
(b) A master or other individual in charge of a documented vessel who knowingly fails to report in compliance with this section is liable to the United States Government for a civil penalty of not more than $5,000.
Regarding 46 U.S. Code § 10104, MLAA is primarily seeking to answers three very important questions that are of great interest to the maritime community:
1) whether or not USCG credentialed masters and other persons in charge of documented vessels are reporting allegations of sexual offenses prohibited under chapter 109A of title 18 U.S. Code to the USCG in accordance with the Federal Shipboard Sexual Assault Allegation Reporting Law (46 U.S. Code § 10104),
2) whether the Federal Shipboard Sexual Assault Allegation Reporting Law is, or has ever been, enforced by the USCG, and
3) whether or not the USCG has ever investigated or punished a person or a corporation for failing to report an allegation of a sexual offense prohibited under chapter 109A of title 18 U.S. Code in accordance with the Federal Shipboard Sexual Assault Allegation Reporting Law.
Federal law requires USCG documented commercial vessels to report a wide variety of casualties, accidents, and incidents to the USCG. To facilitate reporting, the USCG has created a reporting form titled “CG-2692: Report of Marine Casualty, Commercial Diving Casualty, or OCS-Related Casualty.” The “owner, agent, master, operator, or person in charge” of commercial vessels are required to use CG-2692 when transmitting reports of “reportable marine casualties” to the USCG. CG-2692 includes the following categories of incidents that are required to be reported to the USCG:
1. Unintended grounding or an unintended strike of (allision with) a bridge
2. Intended grounding or intended strike of a bridge that created a hazard to navigation, the environment or the safety of the vessel, or that meets any of the criteria in 3 through 8 below
3. Loss of main propulsion, primary steering, or any associated component or control system that reduces the maneuverability of the vessel
4. Occurrence materially and adversely affected the vessel's seaworthiness or fitness for service or route
5. Loss of life
6. Injury that requires professional medical treatment (treatment beyond first aid) and, if the person is engaged or employed on board a vessel in commercial service, that renders the individual unfit to perform his or her routine duties
7. Occurrence causing property damage in excess of $75,000
8. Occurrence involving significant harm to the environment
Reporting form CG-2692 states, “This form satisfies the requirement for written reports of casualties and accidents found in the Code of Federal Regulations...In accordance with 46 CFR §4.05-10...this form shall be filled out as completely and accurately as possible.”
46 CFR § 4.05-10 “Written report of marine casualty,” states:
(a) The owner, agent, master, operator, or person in charge must, within 5 days, file a written report of any marine casualty required to be reported under § 4.05-1. This written report is in addition to the immediate notice required by § 4.05-1. This written report must be delivered to a Coast Guard Sector Office or Marine Inspection Office. It must be provided on Form CG-2692...
(b) If filed without delay after the occurrence of the marine casualty, the report required by paragraph (a) of this section suffices as the notice required by § 4.05-1(a).
46 CFR § 4.05-1(a) states:
“Immediately after the addressing of resultant safety concerns, the owner, agent, master, operator, or person in charge, shall notify the nearest Sector Office, Marine Inspection Office or Coast Guard Group Office whenever a vessel is involved in a marine casualty...”
As an example of how this reporting system works, if a person employed aboard a documented vessel in commercial service sustains an injury that requires professional medical treatment beyond first aid and renders the individual unfit to perform his or her routine duties, that injury must be immediately reported to the USCG via phone call, email, or VHF radio, and the injury must also be reported to the USCG on form CG-2692 via mail, email, or fax within 5 days of the injury.
When received by the USCG, this “reportable marine casualty” (the injury to the crewmember) is then entered into the USCG’s “Marine Information Safety and Law Enforcement System (MISLE)” and assigned a MISLE Activity Number. The USCG then investigates the reportable marine casualty. When the USCG’s investigation is completed/closed, an “Incident Investigation Report” is prepared for public release.
The USCG maintains an online database of Incident Investigation Reports that can be searched by the public. The publicly searchable database of Incident Investigation Reports is maintained and accessed via a website known as the “Coast Guard Maritime Information Exchange (CGMIX).”
In MLAA’s investigation of the USCG’s reporting systems, we searched the CGMIX for Incident Investigation Reports and for information about the number of Incident Investigation Reports contained within the database. According to the CGMIX website, the database contains Incident Investigation Reports for closed investigations of reportable marine casualties dating from October 2002 to present.
Because the public-facing CGMIX database interface will not return more than 5,000 results for a date range query, we are not able to determine exactly how many Incident Investigation Reports are contained in the database. To estimate the number of Incident Investigation Reports in the database, we conducted open searches of five one-year date ranges. A search of the one-year period from January 1, 2015 to December 31, 2015 returned 2,071 Incident Investigation Reports. A search of the one-year period from January 1, 2016 to December 31, 2016 returned 3,467 Incident Investigation Reports. A search of the one-year period from January 1, 2017 to December 31, 2017 returned 3,242 Incident Investigation Reports. A search of the one-year period from January 1, 2018 to December 31, 2018 returned 3,496 Incident Investigation Reports. A search of the one-year period from January 1, 2019 to December 31, 2019 returned 3,444 Incident Investigation Reports.
These 5 searches revealed that the database contains 15,720 Incident Investigation Reports for the five year period from January 1, 2015 to December 31, 2019—an average of 3,144 per year. Using a slightly more conservative average of 3,000 per year would mean that over the past 10 years approximately 30,000 reportable marine casualties have been reported to the USCG on form CG-2692 by owners, agents, masters, operators, or persons in charge of vessels in commercial service.
What seems clear from the high number of Incident Investigation Reports contained in the CGMIX database is that the commercial maritime industry takes at least some of the USCG’s vessel safety reporting requirements seriously. However, the USCG has decided not to include the reporting requirements of 46 U.S. Code § 10104 on form CG-2692.
MLAA has been unable to locate any reporting form created by the USCG for reporting allegations of shipboard sexual assault as required by 46 U.S. Code § 10104, or any system for the public to view the completed investigation reports involving allegations of shipboard sexual assault reported to the USCG pursuant to 46 U.S. Code § 10104.
This failure to create a formal reporting system for allegations of shipboard sexual assault, and the failure to incorporate allegations of shipboard sexual assault into the USCG’s marine casualty reporting systems (CG-2692 and CGMIX) raises the very important question of how exactly allegations of shipboard sexual assault are being reported to the USCG pursuant to 46 U.S. Code § 10104.
In our FOIA request, MLAA requested the following:
All reports of sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 since the law was added to the Code of Federal Regulations in 1989, with any personally identifiable information about the victim or the accused omitted from the report, only if required by law.
To clarify this request for the CG-INV: what MLAA is asking for are the reports that have been submitted to the USCG by masters and other persons in charge of documented vessels pursuant to 46 U.S. Code § 10104.
If CG-2692 included a requirement to report allegations of sexual assault pursuant to 46 U.S. Code § 10104, “all reports of sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104” would include every CG-2692 that has been submitted to the USCG because of an allegation of shipboard sexual assault. This form would be a “Report.”
Appeal #2
We appeal the failure of the CG-INV to provide MLAA with even a single Report of an allegation of a sexual offense prohibited under chapter 109A of title 18, United States Code in accordance with 46 U.S. Code § 10104, on the grounds that records or parts of records responsive to our request have been withheld by the CG-INV.
We find it difficult to believe that the USCG has not received a single report pursuant to 46 U.S. Code § 10104 in the past 30+ years. We appeal the failure of the CG-INV to search for those reports of sexual offenses submitted to the USCG pursuant to 46 U.S. Code § 10104 and their failure to release those reports to MLAA.
Claim Made by USCG that Allegations of Shipboard Sexual Offenses are Reported to the USCG via USCG form CG-706B, aka the Vessel’s “Official Logbook”
In a telephone call with Chuck Wolfe, USCG Assistant Senior Investigation Officer at Coast Guard Sector New York, Mr. Wolfe told MLAA that, pursuant to 46 U.S. Code § 10104, the USCG requires allegations of shipboard sexual assault to be transmitted to the USCG via USCG form CG-706B, also known as a vessel’s “Official Logbook.”
Federal law requires the master or person in charge of a U.S. vessels on a voyage from a port in the United States to a foreign port, or the master of a vessel of at least 100 gross tons and on a voyage between a U.S. port on the Atlantic Ocean and a U.S. port on the Pacific Ocean, to maintain an Official Logbook/CG-706B and to send the paper Logbook to the nearest Officer in Charge, Marine Inspection (OCMI) when the voyage is completed.
MLAA was told by USCG Investigator Chuck Wolfe that when the Official Logbooks are received by an OCMI, the Logbook is read in its entirety by a member of the OCMI who searches for entries in the Logbook required by 46 U.S. Code § 10104. Mr. Wolfe told MLAA that unlike in the case of, for example, an injury that requires professional medical treatment beyond first aid, or an occurrence causing property damage in excess of $75,000, the USCG does not recognize any legal requirement for a master or person in charge of a documented vessel to immediately report an allegation of shipboard sexual assault to the USCG.
Because some vessels required to maintain an Official Logbook engage in foreign voyages that last months, or sometimes years, the implication of this policy decision by the USCG is that it may take months or years for the USCG to even receive the document that would allow them to learn about an allegation of shipboard sexual assault.
Additionally, many USCG documented commercial vessels—and likely the vast majority of documented commercial vessels—are not required to maintain an Official Logbook/CG-706B, which raises the question of how those commercial vessels not required to maintain a CG-706B are required to report allegations of shipboard sexual assault pursuant to 46 U.S. Code § 10104.
According to CG-706B, the Official Logbooks received by the USCG “are maintained at the OCMI’s office for six months before being transferred to the nearest Federal Records Center for 60 years. After 60 years the Official Logbooks are sent to the National Archives Regional Center for permanent storage. A record of all official logbooks and their location must be maintained by the submitting office.”
This means that the CG-INV knows the location of every CG-706B that has been submitted to an OCMI office since 1989, and that the USCG is able to search these official documents for allegations of sexual assault pursuant to 46 U.S. Code § 10104.
MLAA finds it very difficult to believe that in more than 30 years not a single report of a complaint of a sexual offense prohibited under chapter 109A of title 18, U.S. Code has been submitted to the USCG via form CG-706B pursuant to 46 U.S. Code § 10104.
Based on the response of the CG-INV to our FOIA request, and based on the documents received by MLAA from the CG-INV pursuant to our FOIA request, which included zero reports of sexual offenses, MLAA does not believe that the USCG performed a search of all Official Logbooks in its possession or within the possession of the Federal Records Centers where the USCG sent the indexed Logbooks.
Appeal #3
MLAA appeals the failure of the CG-INV to search all Official Logbooks dating to 1989 that are either in its possession, or in the possession of the Federal Records Centers where the USCG sent the indexed Logbooks, for reports of complaints of a sexual offense prohibited under chapter 109A of title 18, on the grounds that records or parts of records responsive to our request have been withheld by the CG-INV.
We asked for reports received from mariners by the USCG. The USCG told us that at least some of those reports are in the Official Logbooks. If this search is burdensome, it is only burdensome because the USCG has failed to create a more efficient system for reporting allegations of shipboard sexual assault. MLAA does not believe that the USCG’s intentional failure to create an efficient reporting system for allegations of shipboard sexual assault excuses the agency from conducting a thorough search of Official Logbooks in response to our FOIA request.
Further, MLAA is not convinced that the Official Logbooks are even read by USCG personnel, or that every single Official Logbook received by the USCG since 1989 was read in its entirety by USCG personnel who were looking for reports of sexual offenses pursuant to 46 U.S. Code § 10104. A thorough review of these Official Logbooks is needed to ensure that any federal sex crimes reported in the Official Logbooks have been thoroughly investigated by the USCG, and to ensure that the USCG fully responds to our FOIA request.
The Documents CG-INV Released to MLAA are “Enforcement Summaries,” and These Summaries Do Not Include Large Numbers of Documents Relevant to our FOIA Request.
In MLAA’s FOIA request we requested the following:
All Documents related to any investigation of sexual misconduct of any kind initiated against any USCG credentialed mariner, including investigation reports and related documents, by the USCG or the CGIS since 46 U.S. Code § 10104 was added to the Code of Federal Regulations in 1989, with any personally identifiable information about the victim or the accused omitted from the report, only if required by law. “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 USCG’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All of the documents released to MLAA by the CG-INV are titled “Enforcement Summaries” and are exactly that. They are summaries. Not included are an unknown, but certainly large, number of documents responsive to our request that were used to create the Enforcement Summaries or never became part of an Enforcement Summary.
For example, CG-INV released a heavily redacted 45 page “Enforcement Summary” for the case “USCG vs. [Redacted], Activity # 3113755, Docket 2007-0075.” This case concerns the Chief Mate aboard the M/V Sealand Achiever who was accused by the USCG via the S&R process of at least 13 counts of shipboard sexual misconduct, including forcefully raping, sexualy assaulting, and sodomizing the ship’s 2nd Mate, directing lewd and lascivious remarks at deck and engine cadets, using the ship’s master key to enter the room of the engine cadet while she was sleeping to solicit and engage in sexual acts, and creating a hostile work environment for numerous crewmembers.
Referenced in the Enforcement Summary for “USCG vs. [REDACTED], Activity #3113755, Docket 2007-0075” are numerous Exhibits, including “Exhibit Label CG-4: Evidence Description: Maersk Answer to Subpoena dated February 28, 2007. Due to size of documents, all files kept at Sector North Carolina” and various other exhibits.
In another case involving Maersk titled “USCG vs. [REDACTED], Activity# 5763463, Docket 2019-0151” the CG-INV failed to provide the Exhibits listed in the Enforcement Summary.
Appeal #4
MLAA appeals the failure of Captain Jason Neubauer to produce all Exhibits referenced in all Enforcement Summaries provided to MLAA pursuant to our FOIA request, on the grounds that records or parts of records responsive to our request have been withheld by the CG-INV.
Appeal #5:
MLAA appeals the decision of Captain Jason Neubauer to withhold all “Settlement Agreements” between the USCG and credentialed mariners in cases involving sexual misconduct on the grounds that records or parts of records responsive to our request have been withheld by the USCG.
What has become clear through the reading of the documents obtained from the CG-INV is that many, perhaps most S&R cases involving sexual misconduct by credentialed mariners are eventually resolved through Settlement Agreements between the USCG and the mariner. It appears to be the policy of the USCG to attempt to settle all sexual misconduct cases without a hearing, and according to the USCG’s Chief ALJ, it is the explicit policy of the USCG to forge Settlement Agreements in all S&R cases where the USCG is not seeking the revocation of a mariner’s credentials. Based on documents obtained from the CG-INV, mariners who sign Settlement Agreements in sexual misconduct S&R cases often receive penalties that seem extraordinarily lenient.
For example, on April 18, 2016 a USCG ALJ issued a consent order for a settlement agreement with a mariner who had recently been convicted in Virginia of criminal sexual battery (USCG vs. [Redacted], Activity #5723166 Docket # 2016-0122). According to documents provided to MLAA, the mariner who had been recently convicted of a sex crime was given a Settlement Agreement that resulted in only a one month suspension of his USCG-issued license when, by law, the conviction should have resulted in the loss of his credentials and also warranted a 1-5 year assessment period following the conviction. What’s truly disturbing about this Settlement Agreement is that the mariner held a USCG-issued master’s license and is the Captain of his vessel.
In “USCG vs. [Redacted], Activity # 3113755, Docket 2007-0075,” the case concerning the Maersk Chief Mate aboard the M/V Sealand Achiever who was accused by the USCG via the S&R process of at least 13 counts of shipboard sexual misconduct, the mariner received a Settlement Agreement, with a consent order from an ALJ judge approving the settlement agreement received by CG-INV on May 16, 2007. We do not know what is contained in that Settlement Agreement, but it is crucial that the public learns whether or not a known sexual predator is being allowed to continue working aboard ships under the authority of his USCG license and credentials.
MLAA seeks, as part of its broad FOIA request, all Settlement Agreements and all related filings and documents in all S&R cases involving sexual misconduct by credentialed mariners since 1989. It is vital that the maritime community and the broader public learn how the USCG is using Settlement Agreements in cases involving sexual misconduct by credentialed mariners.
Appeal #6
Settlement Agreements used in the S&R process are approved through consent orders issued by federal judges and represent “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases,” and therefore the FOIA requires that these Settlement Agreements be proactively released to the public by the USCG on an ongoing basis. MLAA appeals the withholding of all Settlement Agreements on the basis that records or parts of records responsive to our request have been withheld by the USCG, and on the basis that the FOIA requires these documents to be made available to the public on an ongoing basis.
Under FOIA's “reactive” mechanism found in § 552(a)(3) & § 552(a)(2), the FOIA identifies certain categories of records that an agency must make available to the public on an ongoing basis, with no FOIA request necessary. This affirmative obligation applies to:
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases...
Appeal #7:
MLAA seeks the names of all parties to the Settlement Agreements, and seeks the names of all mariners accused of sexual misconduct in all documents that have been released by the USCG and in all documents that will be released. We appeal the redaction of the names of the accused mariners on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
MLAA finds no basis in law for the withholding of the names of credentialed mariners who have been investigated for sexual misconduct, charged with sexual misconduct, convicted of sexual misconduct, or who have admitted to misconduct by signing Settlement Agreements.
MLAA seeks the names of these sexually deviant USCG credentialed mariners so that the public and the more than 215,000 USCG credentialed mariners can be informed of the potential for being trapped on a vessel at sea with an extraordinarily dangerous person.
Appeal #8:
MLAA appeals the decision of Jason Neubauer to withhold all documents generated in the negotiation of “Settlement Agreements” between the USCG and credentialed mariners in S&R cases involving sexual misconduct on the grounds that records or parts of records responsive to our request have been withheld by the USCG.
The sexual misconduct Settlement Agreement documents sought by MLAA under our broad FOIA request include emails and other communications exchanged between USCG personnel and credentialed mariners accused of sexual misconduct, between USCG personnel and the mariner’s attorney or attorneys, and between USCG personnel and employers of mariners such as Maersk Line, Limited and its affiliated companies and the attorneys of those employers.
Federal courts have consistently rejected the position that information exchanged between adversaries during settlement negotiations are entitled to distinct protection under FOIA. In County of Madison v. Department of Justice, 641 F. 2d 1036, 1040-41 (1st Cir. 1981), it was held that settlement proposals submitted to an agency by "past and potential adversaries" must be disclosed for lack of satisfying the "inter-agency or intra-agency" threshold requirement of Exemption 5, 5 U.S.C. § 552(b)(5). See also Norwood v. FAA, 580 F. Supp. 994, 1002-03 (W.D. Tenn. 1984). In other cases, district court judges have refused to accord settlement documents protection under FOIA Exemption 5 because of their conclusion that there exists no distinct "settlement negotiations" privilege.
In Center for Auto Safety v. Department of Justice, 576 F. Supp. 739, 749 (D.D.C. 1983), it was found that such a privilege had not been established by the courts in the civil discovery context, nor could one be implied directly from the special federal rule of evidence (Rule 408) prohibiting the admissibility at trial of settlement negotiation details. This conclusion was followed in NAACP Legal Defense & Educational Fund v. Department of Justice, 612 F. Supp. 1143, 1146 (D.D.C. 1985).
Appeal #9:
MLAA appeals Jason Neubauer’s decision to fully withhold the release of 31 of 580 pages of documents determined responsive to our FOIA request on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
In his Interim Response Letter Neubauer states that he has completely withheld 31 of 580 pages responsive to our FOIA request pursuant to FOIA exemptions (b)(6), (b)(7)(C), and (b)(7)(A).
The documents that were withheld under 5 USC §552(b)(7)(C) must be disclosed under the FOIA because they are required to be made available to the public and are not expected to constitute an unwarranted invasion of personal privacy.
5 USC §552 (b)(7)(C) states that the agency is required to make available to the public information that is “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information...could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
Given that any personally identifiable information about the victim or 3rd parties can be redacted from the documents pursuant to Exemption 6, all documents should be released as they would not invade the personal privacy of any of the relevant individuals or reveal their identities.
Neubauer writes that “Enforcement Reports 5765077, 5768060, 5779090, and 5783941 are still under investigation. This material has also been withheld in accordance with 5 U.S.C. §552(b)(7)(A).” It is our understanding of Neubauer’s letter that the pages of documents in Enforcement Reports 5765077, 5768060, 5779090, and 5783941 are not counted as part of the 580 total pages of documents responsive to our FOIA request. If this is true, then we do not understand how the (b)(7)(A) exemption could legally be applied to closed cases, and we appeal the use of the (b)(7)(A) exemption to cases that are closed on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #10:
MLAA appeals Jason Neubauer’s redaction of information on produced documents on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
With respect to 456 pages of documents partially released pursuant to our FOIA request, MLAA believes the FOIA requires the USCG to release withheld and redacted information, notwithstanding the USCG’s claims that the redacted information is exempt.
According to FOIA Exemption 7(C), certain records or information may be determined to constitute an unwarranted invasion of personal privacy if the agency believes the privacy interest of identifies of individuals outweighs minimal public interest in disclosing the information. MLAA argues that this is not the case here. MLAA believes the public interest in the release of this redacted information outweighs the public interest in withholding it, because the information redacted from the documents (for example: the names of the accused) have the potential to show misconduct and inappropriate behavior by individuals in charge of documented vessels and by other USCG credentialed mariners.
As shown in various previous court cases, some public interest factors should be properly taken into consideration and given great weight in this case. Courts have found the public interest in disclosure to be strong when the requested information shows misconduct. See, e.g., Congressional News Syndicate v. Department of Justice, 438 F. Supp, 538, 544 (D.D.C. 1997).
Here there is a strong public interest to release exempted information from the documents because by sharing the information about previous cases of sexual misconduct and abuse, there is the hope that such abuses will not occur in the future. One court has shared a similar sentiment that there is an “obvious public interest” in full disclosure of such documents to share information about past abuse to prevent future abuse.” Tax Reform Research Group v. IRS, 419 F. Supp. 415, 418 (D.D.C. 1976).
In his letter, Neubauer also invoked the (b)(7)(A) exemption with respect to partially released documents. We do not understand how the (b)(7)(A) exemption could legally be applied to closed cases, and we appeal the use of the (b)(7)(A) exemption on partially released documents in closed cases on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #11:
In his Interim Response Letter Neubauer referenced exemption (b)(7)(A), yet Neubauer did not state how many records responsive to our request were withheld pursuant to FOIA exemption (b)(7)(A). MLAA appeals Neubauer’s failure to state how many records were withheld pursuant to (b)(7)(A) on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #12:
MLAA appeals Jason Neubauer’s redaction of the names of Federal Administrative Law Judges from documents responsive to our FOIA request on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
MLAA finds no basis in law for the redaction of the names of federal judges, yet on numerous documents released to MLAA by the CG-INV the names of federal judges have been redacted. MLAA also appeals the redaction of the names of federal judges on S&R Settlement Agreements and related documents on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG
Appeal #13:
MLAA appeals the failure of the CG-INV to release any documents related to the CGIS Investigation with the Case Management ID “CSE-2017-12-002274” on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
The 2017-2018 CGIS investigation titled “CSE-2017-12-002274” involved allegations of sexual harassment and sexual assault made by a USMMA cadet aboard M/V APL Korea against the vessel’s Chief Mate—a USCG credentialed mariner.
According to the 7 page Case Management Report released to MLAA by the CGIS via the FOIA, the CGIS investigator consulted with “USCG District 1 Legal, Boston, MA” and determined that the facts of the investigation and the report made by the victim “did not meet the elements in accordance with US Code Statute for Sexual Assault.”
This legal determination by USCG District 1 Legal, Boston, MA does not have any bearing on whether or not the conduct of this mariner and the facts of the CGIS investigation warranted a Suspension & Revocation investigation or prosecution by the CG-INV. In Suspension & Revocation proceedings, the burden of proof is on the CG-INV to establish the allegations in the complaint by a preponderance of the evidence, which is wholly different from the evidentiary standards in a criminal proceeding.
Given the seriousness of the allegations against this credentialed mariner, MLAA finds it very difficult to believe that the CG-INV was not aware of this CGIS investigation, that the CG-INV did not conduct its own investigation into these sexual harassment and sexual assault allegations by a young female credentialed mariner, or that the CG-INV did not at least create documents related to CSE-2017-12-002274 that are responsive to our FOIA request.
MLAA appeals the failure of the CG-INV to provide MLAA with all documents related to the allegations contained in CSE-2017-12-002274, including investigation reports and related documents, including, but not limited to, reports, correspondence, agreements, minutes, memoranda, e-mails, databases, and notes, including all documents that have ever been within CG-INV’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
If the CG-INV made a decision not to open an investigation into the allegations contained in CSE-2017-12-002274, MLAA seeks all documents, emails, etc. related to the decision of the CG-INV not to investigate the allegations and MLAA appeals the CG-INV’s failure to provide those documents on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #14:
MLAA appeals the decision of Jason Neubauer to withhold documents generated in the investigation of the credentialed mariner accused of shipboard sexual misconduct in “USCG vs. [REDACTED], Activity# 5763463, Docket 2019-0151” on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
With respect to “USCG vs. [REDACTED], Activity# 5763463, Docket 2019-0151,” MLAA seeks “All documents including but not limited to, reports, correspondence, agreements, minutes, memoranda, e-mails, databases, and notes that have ever been within USCG’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.”
With respect to electronic communications, MLAA knows from experience that the USCG is capable of searching its vast email database for specific email addresses, specific cases, and specific names. MLAA seeks all emails exchanged by CG-INV personnel, including Captain Jason Neubauer, with others within the USCG and outside of the agency regarding USCG vs. [REDACTED], Activity# 5763463, Docket 2019-0151.
USCG vs. [REDACTED], Activity# 5763463, Docket 2019-0151 is a case with particular importance to MLAA and to the public because documents provided to MLAA by the CG-INV pursuant to our FOIA request show that the master of the M/V Maersk Memphis broke the Federal Sexual Assault Allegation Reporting Law by not reporting an allegation of shipboard sexual assault to the USCG as required by 46 USC 10104.
These released documents also show that neither master of the vessel or his employer (Maersk Line, Limited) were punished for their blatant violation of the Federal Sexual Assault Allegation Reporting Law and their attempted coverup, which involved intentionally omitting an allegation of sexual assault from the ship’s Official Logbook and never notifying the USCG of the sexual assault allegation.
The CG-INV documents also show that the perpetrator of these shipboard sex crimes was given a Settlement Agreement that resulted in no suspension or revocation of his USCG merchant mariner credential.
The documents from USCG vs. [REDACTED], Activity# 5763463, Docket 2019-0151 and from the related CGIS investigation (CSE-2018-11-000096) show the CGIS communicating with lawyers from Maersk, with the Department of Transportation’s Office of Inspector General, with the U.S. Merchant Marine Academy, and others. There was no doubt significant communication between the CGIS and the CG-INV over how to proceed with this case, and MLAA seeks all communications related to this very important case, including all documents related to the decision of the CG-INV not to charge the captain of the Maersk Memphis or Maersk Line, Limited with violating 46 USC § 10104.
Appeal #15:
MLAA appeals the failure of the CG-INV to search the records of all USCG Marine Safety Offices and the records of the Suspension and Revocation National Center of Expertise (S&R NCOE) for records responsive to our FOIA request on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
According to LCDR Randy Waddington, former Chief, Investigations Division, U.S. Coast Guard Office of Investigations and Casualty Analysis, Beginning in late 2014, “the Suspension and Revocation National Center of Expertise shifted from primarily a support resource for investigators to a quality-control clearinghouse for all formal complaints issued against merchant mariners. With several staff attorneys among its ranks, the S&R NCOE is able to ensure that every case complaint that goes before an administrative law judge (ALJ) is thoroughly vetted and researched in light of the most current case law.”
Because of its role as a “quality-control clearinghouse for all formal complaints issued against merchant mariners,” the S&R NCOE should contain a great number of documents responsive to our FOIA request. The various Marine Safety Offices of the USCG should also contain a great number of documents responsive to our FOIA request, and MLAA appeals the decision of Jason Neubauer to not conduct a search of these USCG offices.
Appeal #16:
MLAA appeals the decision of Jason Neubauer to withhold all documents and communications generated in the investigation of Captain Mark Stinziano, including settlement agreement discussions, that are responsive to our FOIA request on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #17:
MLAA appeals the decision of Jason Neubauer to withhold all documents and communications generated in the investigation of Captain Paul Willers, including settlement agreement discussions, that are responsive to our FOIA request on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #18:
MLAA appeals the decision of Jason Neubauer to withhold all documents and communications generated in the investigation of crimes or violations of law committed by Maersk Line, Limited that are responsive to our FOIA request, including settlement agreement discussions, on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Appeal #19:
MLAA appeals the decision of Jason Neubauer to withhold all communications between the CG-INV and employees of the U.S. Merchant Marine Academy that are responsive to our FOIA request on the grounds that records or parts of records responsive to our request have been improperly withheld by the USCG.
Conclusion
Thank you for your prompt response to this appeal. I anticipate that you will produce responsive documents within 20 working days. For questions regarding this request I can be contacted via email at maritimelegalaid@gmail.com.
Respectfully Submitted,
J. Ryan Melogy
MLAA, Chief Legal Officer