A (Small) Victory in a Battle With OIG

October 2, 2018

By Dan Portnov

As readers of Grand Jury Target know, we have a healthy respect for the various Offices of Inspector General (see here, here and here). OIG investigations can lead to serious consequences and, to add further anxiety, much of how the OIGs conduct their investigations remains mysterious. For someone to get their hands on an OIG Manual or any investigations policy document is virtually unheard of… until last month.

Nearly seven months ago, FBI Deputy Director Andrew McCabe was fired on the eve of his planned retirement, and following the DOJ OIG’s finding of administrative misconduct. He quickly lawyered up (again) and went on the offensive with David Snyder of Boies Schiller, alleging that the OIG report was “premised on material misstatements, mischaracterizations, and omissions.”[1] Snyder submitted a FOIA request to the DOJ demanding DOJ’s Inspector General Manual (the “Manual”) and several other FBI internal policy documents relevant to McCabe’s investigation and discipline.

Requesting documents from the OIG is not easy. If the OIG won’t produce documents voluntary, FOIA requests are typically the only mechanism to do so. But there are numerous exemptions in FOIA that allow a component of the federal government to withhold all or part of the documents requested. 5 U.S.C. § 552(b).

Specifically, exemption 7 protects “records or information compiled for law enforcement purposes” – a wide swath of documents within the possession of OIGs. During an active investigation, exemption 7 protects nearly all documents related to the investigation. Once the investigation is over – either through a referral for prosecution or closing memo – documents may be requested and produced through FOIA, with necessary redactions.

If the requestor disagrees with an agency’s denial of a FOIA request, she may appeal the decision through administrative channels, i.e. the agency’s internal appeal authority. The process may take months, or even years where the responding agency component – on its home turf – continues to invoke new exemptions and make blanket redactions (this actually happens). Once all administrative appeals are exhausted, the frustrated requestor may turn to the courts for help. This can be incredibly time consuming.

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Snyder’s efforts to obtain the OIG Manual on behalf of McCabe were initially rebuffed. First, the OIG denied his request for expedited processing.[2] When Snyder offered to review a hard copy of the Manual and flag relevant pages for copying at his own expense, he was refused.[3]

OIG then sent a letter indicating that Snyder’s request was being processed, but that the request for the Manual had turned up a voluminous amount of potentially responsive records and therefore OIG assigned the request to the complex track.[4] Undeterred, Snyder offered once more to make use of the DOJ’s publicly available “reading rooms” to review the Manual’s table of contents and narrow his request.[5] This request was again denied by OIG general counsel William Blier, who wrote that the table of contents contains “information [that] is likely privileged.” [6] In the same email, Blier cut off further discussion by announcing that “continuing discussions will [not] lead us to agreement.”[7]

As a result of the OIG’s (and FBI’s) intractable stance, Snyder filed suit against DOJ OIG and the FBI in federal district court for the District of Columbia claiming several violations of FOIA and seeking an order requiring each DOJ component to immediately produce the requested documents. (For administrative law wonks, the complaint and answer in this case reinforce the principle that one can sue components/organizational units of an Executive department). The government answered the complaint, perhaps indicating the relative weakness of its position by not moving to dismiss.

By August 14, OIG had produced a full, unredacted table of contents to Snyder.[8] In the parties’ September 4 Joint Status Report, Snyder and the OIG announced that the latter had would produce a redacted IG Manual at the rate of 100 pages per month, with an estimated completion date of May 31, 2019.[9] The FBI has continued to resist Snyder’s FOIA request and the parties appear to be headed for further status conferences and possible summary judgment.

As a result of Snyder’s impressive efforts, an OIG has been forced to publicly produce an operative investigations manual for the first time in recent memory. Snyder’s accomplishment should spur a wave of FOIA requests for IG manuals. Or it may cause OIGs to revamp their stonewalling tactics. For now, though, the government investigations bar should celebrate Snyder’s small victory… and politely ask for a peek at the Manual.

[1] Snyder v. US DOJ, et al., 1:18-cv-1389 (CKK), Complaint [D.E. 1] at ¶6.

[2] Id. at ¶47.

[3] Id. at ¶48.

[4] Id. at ¶¶49-51.

[5] Id. at ¶¶53-54.

[6] Id. at ¶55.

[7] Id.

[8] Joint Status Report, August 16, 2018, [D.E. 14] at 1.

[9] Joint Status Report, September 4, 2018, [D.E. 16] at 2.

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