wraps up 5-year FOIA battle with Justice Department – Reporters Committee for Freedom of the Press

After successfully representing a journalist in his fight for corporate compliance records, the Reporters Committee recently secured a settlement for attorneys fees from the U.S. Justice Department.

The May settlement brought closure to a five-year public records battle between the agency and reporter Dylan Tokar over the journalists efforts to shed light on the process by which government officials evaluate and appoint attorneys to serve as corporate watchdogs.

Five years ago, Tokar, who now covers corporate compliance and white-collar crime for The Wall Street Journal, sought records related to a federal oversight program that monitors companies alleged to have violated the Foreign Corrupt Practices Act.

The federal law prohibits American firms from bribing members of foreign governments to advance their business interests. Firms investigated for potentially violating the law can skirt criminal conviction by entering into a Deferred Prosecution Agreement, in which the firm agrees to pay for an independent monitor, appointed by the Justice Department, to investigate its practices for a set period of time.

Because these independent monitors often white-collar defense attorneys oversee companies for long periods of time, the positions are attractive to large law firms, as they bring in long-term, lucrative work. But the quiet interplay between top officials in the federal government and the small nexus of corporate attorneys likely to vy for these positions has raised concerns about potential conflicts of interest.

And despite internal Justice Department guidelines meant to ensure a proper appointment process for monitors, questions about the role of the defendant corporation in the selection process have only added to concerns about the selection process integrity.

Tokars search for the Justice Department records sought to answer the central question of whether the agency has followed its guidelines to ensure a fair selection process for corporate monitorships. Among other revelations, Tokars reporting showed that the memos rules created a more rigorous selection process, but it did little to diversify the pool of candidates the Justice Department considered for the roles.

Diversity in the white collar bar is not great, but within the small cohort of lawyers who have served as FCPA monitors it is even worse, Tokar said. The information we obtained allowed us to raise questions about that lack of diversity, and to better hold the DOJ accountable for it.

Between 2004 and the summer of 2018, according to documents Reporters Committee attorneys helped Tokar obtain, the Justice Department selected 48 corporate monitors; only three were women and three were men of color. No women of color were chosen, records show.

These records shed light on a selection process that is shrouded in secrecy and that raise questions about potential conflicts of interest in the Justice Department, said Jennifer Nelson, the Reporters Committee staff attorney who litigated the case with assistance from the First Amendment Clinic at the University of Virginia Law School. The significant public interest in this information far outweighs any privacy concerns that white-collar corporate lawyers considered for these lucrative monitorships might have.

Tokar was a reporter for the trade publication Just Anti-Corruption when he filed two FOIA requests in 2015 seeking documents related to the selection process for corporate monitors, as well as any letters that objected to the release of such information. When the Justice Department failed to respond to his requests, Tokar filed his lawsuit in the U.S. District Court for the District of Columbia in December 2016.

While preparing its defense, the Justice Department produced for Tokar a chart, including some of the information he requested in his FOIA request, but with key information withheld. Tokar would later declare that he noted multiple errors in the chart.

When the Justice Department filed its summary judgment motion in the summer of 2017, it argued that it properly withheld private information, including the names of law firms that nominees for corporate monitorships worked for, as well as the names of the attorneys who were nominated for, but ultimately did not receive, corporate monitor positions. When making this argument, the agency relied on a 1984 case, Core v. U.S. Postal Service, in which a federal appellate court allowed the government to withhold the employment details of unsuccessful applicants for a postal service job. The public disclosure of the applicants job search, the court reasoned at the time, could prove detrimental, as it could alert workers present employers that they are seeking new jobs.

In response, Reporters Committee attorneys argued on Tokars behalf that unsuccessful nominees for corporate monitorships do not have the same privacy interests at stake that the postal workers did in the 1984 case, especially considering an overwhelming public interest in the question of whether the government acts with integrity, particularly when it runs agency programs that are alternatives to the judicial system. The accomplished corporate attorneys considered for corporate monitorships are not job applicants in the traditional sense of the term, the brief explains. Rather, they are members of law firms working on a number of cases at one time.

In fact, being nominated for multiple high-profile monitorships is likely to advance their careers and reputations, even when they are not ultimately selected for a position, Reporters Committee attorneys argued in the motion for summary judgment. Revealing their names simply does not implicate the same issues presented by the disclosure of information about unsuccessful job applicants who may have an interest in preventing their current employers from learning that they wanted to leave their jobs and had sought employment elsewhere.

The D.C. District Court ruled in March 2018 that the Justice Department was not allowed to redact the information it withheld on the basis of its Postal Service privacy argument, and that the agency was also wrong to have produced a bare-bones chart when it should have turned over the documents that Tokar requested.

Another round of filings followed in 2019. That year, on behalf of Tokar, Reporters Committee attorneys contested many of the remaining privacy-related redactions the Justice Department kept in the documents, despite the courts opinion in 2018. At the Courts urging, the organization negotiated the remaining redaction issues outside of the courtroom.

Faced with the relentless pace of the news cycle, it can feel like an exercise in futility to pursue a FOIA for information you might not obtain for years to come, Tokar said. I cant thank the RCFP enough for their willingness to take up that cause on behalf of reporters at news organizations that arent able to do it themselves.

The Reporters Committee has received the settlement fee and moved to dismiss the case.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by Tony Webster

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wraps up 5-year FOIA battle with Justice Department - Reporters Committee for Freedom of the Press