The Transportation Security Administration (TSA) inadvertently revealed internal emails showing that some agency employees hoped to get out in front of the novel coronavirus outbreak rather than wait for officials at the Department of Homeland Security (DHS) to provide any directives. Why didn’t they wait? Because they thought DHS would merely echo the White House’s attempts to downplay the virus.
“There is a COVID-19 case in DC and three in Maryland,” read one March 8 email from an unknown TSA employee. “I think we need to be proactive with this and not wait for direction because DHS will only follow the lead of the White House, which is trying to play this down, as we know. I personally am going to request additional telework to stay away from groups of people at work. We have to think about our own health.”
The agency accidentally released the emails in response to a Freedom of Information Act (FOIA) request for TSA records pertaining to COVID-19 filed by BuzzFeed News reporter Jason Leopold. Photos provided by Leopold clearly show that the agency had marked the sentence about the White House “trying to play this down” to be redacted under an exemption to FOIA disclosure law, but reviewers never completed the process before sending it out.
“TSA forgot to actually apply the redaction pen a bunch of emails it marked for redaction the agency just turned over to me in response to my #FOIA request for docs related to #Covid_19,” Leopold tweeted. “What you are seeing here is an example of how the b5 exemption is abused.”
What you are seeing here is an example of how the b5 exemption is abused pic.twitter.com/oeWR35fZoW
— Jason Leopold (@JasonLeopold) November 18, 2020
The agency had also intended for a second March 8 email—this one with a subject line reading “RE: COVID Messaging”—to be redacted in its entirety.
“Hasn’t the OHC AA [Office of Human Capital Assistant Administrator] issued any guidance that is tailored to HQ staff on this issue? I realize that the DHS CHCO [Chief Human Capital Officer] has but that was a DHS-wide message. A message from the OHC AA would be a helpful first step for consistency of response at the HQ office-level,” the email read.
The TSA Assistant Administrator for Human Capital is the official responsible for answering inquiries, resolving issues, and responding to complaints relating to the agency’s workforce.
The agency marked the emails to be redacted under 5 U.S.C. § 552(b)(5), better known as “Exemption 5.” Exemption 5 is extremely broad and essentially protects against the production of records deemed to be either attorney work product or presidential communications records which, if disclosed, may inhibit the candid exchange of views deemed necessary for the government to pursue effective decision-making processes.
Exemption 5 is widely viewed as the most abused exception to the FOIA process, with experts often referring to it as the “withhold it because you want to exemption.”
Katie Townsend, an attorney and legal director at the Reporters Committee for Freedom of the Press, called the agency’s oversight “stunning but, unfortunately, not surprising.”
Stunning but, unfortunately, not surprising. Exemption b5 is routinely overused; it's also becoming pretty clear that agencies are just ignoring the foreseeable harm requirement added to #FOIA in 2016. https://t.co/alaJt6Hta5
— Katie Townsend (@katie_rcfp) November 18, 2020
A TSA federal security director-turned-whistleblower claimed in June that the agency exhibited “gross mismanagement” in responding to the coronavirus pandemic and consistently ignored pleas from its own security officials.
[image via 41 Action News screengrab]
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