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Friday, March 27, 2009
Despite FOIA Victory, FBN Finds Government Holds Back
By Dunstan Prial
FOXBusiness
For a government that espouses greater transparency, the Obama Administration’s definition of the term can seem rather opaque.
The overwhelming majority of some 10,000 pages released to the FOX Business Network in the cable channel’s successful Freedom of Information Act lawsuit against the Department of the Treasury seeking documents related to the Troubled Asset Recovery Program were redacted.
That left thousands of blank documents, whited-out sentences and page after page of little more than lists of email recipients, senders and subject lines.
FOIA experts say FOX Business’s situation -- and frustration -- is hardly unusual.
“This is part of the inherent limitation of FOIA,” said Rick Blum, coordinator of the Sunshine in Government Initiative, a nonprofit coalition of media groups. “FOIA is a very powerful tool that allows the public to obtain documents it should get from the government. But there are a lot of problems with it.”
For instance, a tactic often employed by the government to stall release of a given document is to cite a deep backlog of requests and then delay until interest in that document wanes. Another tactic for withholding information is to cite one of several legal exemptions that allow for redactions, and then black out much of the information released.
Recent reforms to FOIA now require the government to explain why certain information has been redacted, and that’s an improvement, said Blum.
“They need to very clearly give you the statutory basis for the blackout, so if you want to fight it, at least you know what you’re fighting,” he said.
FOX Business sought information about the bailout of the U.S. financial system last fall from the Treasury Department and the Federal Reserve. Specifically, FOX was seeking information on compensation agreements between the government and, among others, American International Group (AIG) and Citigroup (C), two of the largest recipients of the taxpayer rescue.
Treasury and the Fed fought the FOIA requests so FOX sued. On Feb. 20, a federal judge ordered the release of some documents from Treasury. However, Treasury was still able to file what’s known as a Vaughan index, which allowed it to hold back some information.
Citing attorney-client privilege, the government held back a lot. Nevertheless, a lot of good stuff remained.
Judging from the senders and recipients on the emails, virtually all the details of the bailout were worked out among a handful of lawyers from the Treasury, the Federal Reserve Bank of New York, and the private law firms of Davis Polk & Wardwell and Sullivan & Cromwell in New York.
Because so many lawyers were involved, nearly all of the 10,096 pages of documents turned over by the Treasury have at least one piece of information redacted.
While the documents lack many specifics, the broad tone conveys a sense of urgency. For instance, though the details of what specifically held up an agreement with Citigroup at the end of last year are muddy, it’s clear from the documents it dealt with compensation. What’s also clear is that government officials were amazed that, even at the eleventh hour, Citi officials still didn’t seem to understand that they would have to make concessions.
“Unbelievable,” wrote Stephen Albrecht, the counselor to the general counsel at Treasury, summing up the situation.
There was also obvious tension between AIG and the government -- at least from Treasury’s standpoint. For example, an outside counsel, Marshall Huebner, an attorney at Davis Polk representing the government, was trying to clarify a meeting time for a conference call on Nov. 9. But AIG “rudely never replied to last night’s timing question,” the lawyer wrote. Another lawyer that same day said “I agree and I note that some of them do not have a sense of timeline.”
AIG’s tone appeared to be casual, even cavalier. Anastasia Kelly, executive vice president and general counsel at AIG, responding on behalf of herself and Paula Reynolds, AIG’s chief restructuring officer, told Huebner later that day: “Paula and I love you (in the most appropriate way).”
The volume of emails that cover compensation issues shows that from the very beginning, Treasury wanted to clamp down on executive pay and bonuses for workers at AIG and Citigroup. But in the end, Treasury bent (one email shows officials saying they are “trying to leave open as much flexibility as possible”), a decision that ultimately seems to have led to last week’s controversy over bonuses paid to AIG executives.
How far did Treasury bend? That’s unclear. Again, the details of the back and forth were redacted.
Some of the conversations not redacted provide a glimpse into the personal relationships within Treasury. The people who dealt with the press, for instance, were very concerned about Interim Assistant Secretary of the Treasury for Financial Stability Neel Kashkari’s testimony about the AIG bailout and TARP before Congress on Dec. 10, 2007.
Below is a back and forth between David Nason, who was then the assistant secretary for financial institutions and Jennifer Zuccarelli, then a public-affairs officer for Treasury.
Nason: How’s it going?
Zuccarelli: Bad. Serious questions, too, not “chump” type questions. They’re going to start to break Neel down soon, I’m getting worried he’s going to start snapping.
Nason: This AIG stuff is tough to watch.
Zuccarelli: They killed him on exec comp. He didn’t know answer.
There are also signs that, if nothing else, Treasury officials at least retained a sense of humor. On Nov. 9, 2007, Kashkari was asked by Albrecht to sign off on one final issue related to AIG. The first part of his response was -- naturally -- redacted. But he did note “i have no idea what inter alia means.”
Albrecht replied, “latin for ‘among other things.’ don’t you hate lawyers?”
Kashkari’s response? “prociutto magnolia.”
That part wasn’t redacted.






