FOIA

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Pending/Appealed FOIA Requests

MSPB

OSC

  • OSC FOIA No. FO-12-1078 (received Dec. 15, 2011) (Interim Response | Final Response | Appeal): all legal opinions, memoranda, interpretive rules, substantive rules, general or specific statements of policy, administrative staff manuals and instructions to staff that affect a member of the public, rules of agency organization, procedure, or practice, final opinions, or any other records related to any interpretation of 5 U.S.C. § 1214(e) (and/or its predecessor statute prior to P.L. 101-12, the Whistleblower Protection Act of 1989) reporting requirements for: prohibited personnel practices, prohibited personnel practices which require corrective action, 5 U.S.C. § 1216(a)(1) violations, 5 U.S.C. § 1216(a)(2) violations, 5 U.S.C. § 1216(a)(3) violations, 5 U.S.C. § 1216(a)(4) violations, all non-criminal violations outside OSC enforcement jurisdiction regarding whether OSC has discretion to determine whether a violation occurred, and all other non-criminal violations.
  • OSC FOIA No. FO-12-1228 (received Dec. 23, 2011): all documents related to OSC’s records retention policy, the length of time records are maintained before destruction, delineation by type of record, and current and past disposition schedules pursuant to National Archives and Records Administration guidelines. In addition, all documents received by OSC since January 1, 2011 within the control of OSC, relating to suggestions, recommendations, advice, or requests, the implementation of which would affect or modify OSC processes or policies.
  • OSC FOIA No. FO-12-1473 (received Jan. 25, 2012): the current OSC prosecution manual used by the Complaints Examining Unit and/or the Investigation and Prosecution Division in conjunction with investigations for prohibited personnel practices and other prohibited activities. In addition, I respectfully request the current OSC manual used by the Disclosure Unit to process whistleblower disclosures.
  • OSC FOIA No. FO-12-2879 (received May 3, 2012): OSC’s No FEAR Act Annual Reports to Congress, from 2002 to the present, as required under section 203 of Pub. L. 101-474.
  • OSC FOIA No. (received May 30, 2012): A copy of the following manual, which was created by former Special Counsel Alex Kozinski in the early 1980′s: “How to Avoid Committing Prohibited Personnel Practices in the Reagan Era.”
  • OSC FOIA No. (received June 16, 2012): 1) Any documents related to the development of the definition of “substantial likelihood” as defined in the attached document: “SUBSTANTIAL LIKELIHOOD IS DEFINED AS THE DETERMINATION THAT THE AGENCY IS MORE LIKELY THAN NOT TO FIND THE ALLEGATION SUBSTANTIATED AT THE CONCLUSION OF ITS INVESTIGATION.” 2) Any documents related to the development of the factors reviewed in making the substantial likelihood determination, as listed in the attached document: “IS THE WHISTLEBLOWER RELIABLE?; IS THE WHISTLEBLOWER IN A POSITION TO KNOW THE FACTS?; IS THE DISCLOSURE PLAUSIBLE?; DOES THE WHISTLEBLOWER HAVE FIRST HAND KNOWLEDGE OF FACTS ALLEGED?; HAS THE WHISTLEBLOWER PROVIDED RELIABLE INOFRMATION TO OSC IN THE PAST?”
  • OSC FOIA No. FO-12-3569 (received July 27, 2012): 1. Any documents relating to any plans for the Special Counsel or her senior staff to hold public meetings anywhere in the country. 2. Any documents relating to any plans to designate an OSC official as an “ombudsman.” 3. Any documents relating to any plans to grant an aggrieved or concerned employee or former employee the opportunity to seek an audience with the Special Counsel. 4. Any documents relating to any plans to grant employees the right to see their investigative files. 5. Any documents relating to any plans to abide by the requirement under H.R. 2970 (1994) to provide all material facts and conclusions of law in a tentative or final closeout letter. 6. Any documents relating to any plans to disclose findings of prohibted personnel practice and associated recommendations for corrective action when OSC decides not to litigate. 7. Any documents relating to any plans to reduce FOIA litigation and/or to abide by or implement the President’s January 20, 2009 open government policy. 8. Any documents relating to any plans to restore the “customer satisfaction” unit that Scott Bloch create. 9. Any documents relating to any plans for the Complaints Examining Unit to inform complainants of the estimated wait time to start review or make initial case recommendations. 10. Any documents relating to any plans for OSC to insist on corrective action for responsible managers as part of settlements or other corrective action for complainants. 11. Any documents relating to any plans or policies to open sua sponte investigations. 12. Any documents relating to any plans to seek salary cutoffs under 5 U.S.C. 1204. 13. Any documents relating to any plans to evaluate the compliance of agency chiefs with their merit system leadership responsibilities under 5 U.S.C. 2302(c). 14. Any documents relating to any plans to use 5 U.S.C. 1216(a)(3) to investigate and recommend against arbitrary and capricious FOIA denials. 15. Any documents relating to any plans to institute an internal merit system rights for OSC employees.
  • OSC FOIA No. (received Sept. 21, 2012):  All emails received by the officers and employees comprising the Immediate Office of Special Counsel that were sent by Tom Devine or Shanna Devine of the Government Accountability Project, whether in his/her personal or professional capacity, and any emails from the aforementioned IOSC officers and employees sent to Tom Devine or Shanna Devine, for the time period of April 2011 to the present. Please include any of the aforementioned IOSC officials’ personal email accounts that may have been used to conduct official business.
  • OSC FOIA No.: any documents demonstrating the standards by which OSC does or will decide whether to pursue disciplinary action in PPP cases, and the standards or factors used to decide the severity of the recommended discipline.
  • OSC FOIA No.: any documents demonstrating requests, appeals, or solicitations for appropriated amounts of any size, made to any Congressional or Executive Branch office for FY 2012, FY 2013, and FY 2014, if applicable.
  • OSC FOIA No. FO-13-1721 (received Jan. 28, 2013): OSC’s FOIA logs for FY 2008 through the present.
  • OSC FOIA No. FO-13-1721 (received Jan. 28, 2013): any documents relating to proposals, requests, or recommendations by OSC, relating to the Whistleblower Protection Enhancement Act, that were sent to Congressional, Executive Branch, or non-governmental entities (including media, private sector attorneys, unions, etc.), for Jan. 1, 2009 to Nov. 27, 2012.
  • OSC FOIA No. FO-13-2174 (received Mar. 11, 2013): documents that demonstrate any formal or informal policy, custom, or habit regarding press access and preference between journalists and members of the media and the communications division and senior members of OSC. Specifically, I documents that shed light on how OSC determines which journalists and media outfits merit access to the Special Counsel and others, and which do not, and what factors are used to make this determination. Please limit the timeline solely to the tenure of Carolyn Lerner.

Completed FOIA Requests

FAA

  • FAA FOIA No. 2012-1859: any records related to the FAA’s compliance with 5 U.S.C. § 2302(c), by which the head of FAA is required to prevent prohibited personnel practices (PPP’s) in FAA, to include records documenting the delegation of this authority within FAA and evaluations of FAA’s performance of this duty, whether by self-assessment or the assessment of others, including the Merit Systems Protection Board per 5 U.S.C. § 1204(a)(3) and the U.S. Office of Special Counsel per 5 U.S.C. § 1214(e).
  • FAA FOIA: FAA’s No FEAR Act Annual Reports to Congress, for 2009 to present, as required under section 203 of Pub. L. 101-474.

MSPB

  • MSPB-OCB-2014-000010: I request the FY 2002-2008 end-of-year reports, to the Board Chairman or her designee, summarizing the MSPB IG Hotline and investigative activity for the year. A description of this report is available in Section 17.B. of MSPB Order 1095 (issued on July 12, 2005). I also request the FY 2002-2008 reports to Congress required under Section 8G(h)(2) of the Inspector General Act of 1978, as amended.
  • MSPB-OCB-2013-000252: I request the FY 2012, 2011, 2010, and 2009 end-of-year reports, to the Board Chairman or her designee, summarizing the MSPB IG Hotline and investigative activity for the year. A description of this report is available in Section 17.B. of MSPB Order 1095 (issued on July 12, 2005). I also request the FY 2012, 2011, 2010, and 2009 reports to Congress required under Section 8G(h)(2) of the Inspector General Act of 1978, as amended.
  • MSPB-OCB-2013-000245: I seek a copy of any and all copies of code(s) of ethics that apply to the Board’s administrative judges, administrative law judges (whether hired by the Board or contracted out), and the Board’s members, aside from the standard ethics provisions available at 5 C.F.R. 2635 et. seq. Specifically, but without limiting my general request, I am looking for any judicial or adjudicative codes of ethics that might apply here.
  • MSPB-OCB-2013-000201:  I request all documents, including manuals, policy statements, orders, directives, etc. concerning MSPB’s Inspector General functions and how it conducts audits, evaluations, and/or investigations. Additionally, I request all documents concerning MSPB’s treatment of deficient or unsatisfactory performance by its employees. I do not seek the performance standards themselves, but documents showing how MSPB treats conduct that fails to meet performance standards. Finally, I seek all documents showing how MSPB processes complaints against administrative judges.
  • MSPB-OCB-2013-000193: A template of, or an actual, “Order on IRA Appeal” that reflects the amendments effectuated by the Whistleblower Protection Enhancement Act of 2012.”
  • MSPB-OCB-2013-000133: the stay request filed by the Office of Special Counsel, with all applicable exhibits and attachments, in Special Counsel ex rel. John Does, 1-4 v. Dep’t of Commerce, Docket No. CB-1208-13-0011-U-l (filed Nov. 26, 2012).
  • MSPB-OCB-2013-000112: all determinations, findings, and/or recommendations submitted by the Office of Special Counsel under 5 U.S.C. 1214(b)(2)(B) and/or (b)(2)(D) since June 2011.
  • MSPB-OCB-2013-000102: (Initial Determination | Appeal | Interim Response):  All referrals under 5 USC 1221(f)(3) to the Office of Special Counsel, from Jan. 1, 2011 to the present, and all responses from OSC pertaining to the same provision.
  • MSPB-OCB-2013-000093: (Initial Determination | Attachments | Appeal | Denial): Any documents showing any arrangement, contract, terms, conditions, or coordination between the MSPB and Thomson Reuters (which owns Westlaw) and/or MSPB and Reed Elsevier (which owns Lexis-Nexis) whereby initial decisions and Board opinions are submitted to, or collected by, Westlaw and/or Lexis-Nexis.
  • MSPB-OCB-2013-000085: MSPB’s FOIA logs for FY 2006 through the present.
  • MSPB-OCB-2013-000067: On January 8, 2013, the Board, through William D. Spencer, Clerk of the Board, issued a response to my Petition for Rulemaking regarding promulgating regulations governing the Board’s special studies function under 5 U.S.C. 1204(a)(3) (see attached). The Board declined my Petition, an act constituting final agency action under 5 U.S.C. 551 (defining “agency action” as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”); see also 5 U.S.C. 555(b) (“With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.”); 5 U.S.C. 704 (listing situations that are not final agency actions); 5 C.F.R. 1200.4(b) (providing two options under a petition for rulemaking: initiation of rulemaking proceeding or disposition of petition). Pursuant to 5 U.S.C. 552(a)(5), “[e]ach agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.” Under 5 U.S.C. 551, “agency proceeding” is defined as “an agency process as defined by paragraph[] . . . (5),” which relates to “rule making” – the “agency process for formulating, amending, or repealing a rule.” Accordingly, under 5 U.S.C. 552(a)(5), each multi-member agency must make available for public inspection a record of the final votes of each member in “agency process for formulating . . . a rule.” 5 U.S.C. 551(5). The act of formulating a rule implies the decision whether to formulate the rule. Accordingly, I respectfully seek a record of the final votes of each member for or against the denial of my Petition.
  • MSPB-OCB-2013-000066 (Initial Determination | Appeal | Grant): In the case Dzinh Ton Nguyen v. Dep’t of the Army, 2013 MSPB LEXIS 31, DOCKET NUMBER DC-0752-13-0153-I-1, the administrative judge stated that “the Board has directed its administrative judges to dismiss without prejudice all pending appeals which may be potentially affected by the retroactivity provision of the [Whistleblower Protection Enhancement Act] until after the issue has been decided.” I respectfully seek this directive to the judge corps.
  • MSPB-OCB-2013-000052: statistical data from MSPB showing the number of stay requests made by individual appellants as well as the Office of Special Counsel and the resolution of such requests for fiscal year 2012.
  • MSPB-OCB-2013-000051 (Excel Chart): the database used to create raw case processing statistics used in the MSPB’s annual report for fiscal year 2012, cross-tabulated and referenced by administrative judge and docket number. Electronic format is requested.
  • MSPB-OCB-2013-000007: All emails received by any employee, officer, or member of the offices of the Chairman, Vice Chairman, Member, Executive Director, Appeals Counsel, Clerk of the Board, General Counsel, and/or Policy and Evaluation, that were sent by Tom Devine of the Government Accountability Project, whether in his personal or professional capacity, and all emails from any employee, officer, or member in the aforementioned MSPB offices, that were sent to Tom Devine for the time period of September 2010 to the present.
  • MSPB FOIA No. 2012-09-004 (Denial of Appeal): The last ten advisory opinions, issued by the Office of the General Counsel, which are not exempt under FOIA.
  • MSPB FOIA No. 2012-06-017 (Appeal Determination | Attachments): 1. The names, grades, and dates of hire of all Administrative Judges (AJs) and Administrative Law Judges (ALJs) currently employed by the MSPB. 2. The names, grades (if applicable), and dates of first time services have been provided for all AJs and ALJs currently on a contract, agreement, or detail with the MSPB. If such judges are employed by other federal agencies, please provide the names of those agencies. 3. Documents identifying the criteria for appointment, hire, contracting, or detailing with the MSPB for AJ and ALJ positions. 4. The types of cases adjudicated by ALJs for the MSPB for 2002 to the present. 5. The performance standards used to evaluate AJs and ALJs that provide services for the MSPB, whether through direct employment, contract, agreement, or detail. 6. Any documents evidencing discipline of AJs and ALJs who failed to meet MSPB performance standards for 2002 to the present. 7. The number and types of complaints filed against AJs and ALJs and a listing of those judges for 2002 to the present.
  • MSPB FOIA No. 2012-04-019: MSPB’s No FEAR Act Annual Reports to Congress, for 2009 to present, as required under section 203 of Pub. L. 101-474.
  • MSPB FOIA No. 2012-02-017: any documents related to the implementation or withdrawal of any proposal related to the following quote, derived from MSPB’s First Annual Report: “In the first formative months, MSRS also sought a method for developing indicators of possible merit systems abuse. One approach has been to establish scientifically selected, term appointed, voluntary panels of Federal employees. The panels, queried on a regular basis on salient issues, would actively involve representatives from all the Federal work force in special study activities. Such panels would give MSRS the tools with which to address many subjects quickly and at relatively little expense. MSRS expects to begin using this approach in Fiscal Year 1980.”
  • MSPB FOIA No. 2012-01-034:  any documents related to 5 U.S.C. 1204(a)(3) regarding any studies, and/or inquiries, discussions, or communications as to whether to conduct such studies, related to the tenure and administration of Scott Bloch at the U.S. Office of Special Counsel for the time period of 2003-2008, as well as the period following his ouster (2008-2011).
  • MSPB FOIA No. 2012-01-029: all comments received by the MSPB in response to 54 FR 28654, Interim rule with request for comments, to add a new part (5 C.F.R. Part 1209) to implement the Whistleblower Protection Act of 1989, dated June 29, 1989. In the Final Rule to this Interim rule, 55 FR 28591, dated July 12, 1990, MSPB states that it received comments from two individuals and two agencies, but no organizations, in response to 54 FR 28654. This request seeks those comments.
  • MSPB FOIA No. 2011-12-002 (Appeal | Outcome): all legal opinions, memoranda, interpretive rules, statements of policy, administrative staff manuals and instructions to staff that affect a member of the public, rules of agency organization, procedure, or practice, or any other documents related to any interpretation of 5 U.S.C. § 1204(a)(3) regarding whether the public interest in a civil service free of prohibited personnel practices is being adequately protected. This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.
  • MSPB FOIA No. 2011-11-016: any records governed by 5 U.S.C. § 1204(l), related to MSPB’s duty to submit “any legislative recommendations of the Board relating to any of its functions” to the President and/or the Congress since 1979.
  • MSPB FOIA No. 2011-11-011: annual reports to Congress submitted by the Office of Special Counsel for Fiscal Years 1979 through 1988.
  • MSPB FOIA No. 2011-11-003 (Part 1 | Part 2 | Part 3): MSPB Annual Report for Fiscal Year 1988.
  • MSPB FOIA No. 2011-11-001: 1. A compilation of the past five years (FY 2006-FY 2010) of all IRA whistleblower cases in which a stay request was denied but in which the appellant later received relief – by settlement, by mitigation, or by reversal. 2. A compilation of the past five years (FY 2006 – FY 2010) of all IRA whistleblower cases in which a stay request was granted in which the appellant did not receive relief because the case was later dismissed on jurisdictional grounds or because the agency action was sustained. 3. Statistical information on stay requests and interlocutory appeals in IRA whistleblower cases for the years FY 2006 – 2010 showing stay requests received, granted, and denied.
  • MSPB FOIA No. 2011-10-023 (Excel Chart): database used to create raw case processing statistics to be presented in the MSPB’s annual report for fiscal year 2011, cross-tabulated and referenced by administrative judge and docket number.
  • MSPB FOIA No. 2011-10-022: statistical data showing the number of stay requests made by the Office of Special Counsel for Fiscal Years 2008, 2009, 2010, and 2011, and the number of stays granted by MSPB for those years, respectively.
  • MSPB FOIA: statistical data for stay requests for FY 1994-1998 and FY 1994-2000.

OSC

  • OSC FOIA No. FO-13-3596: index or list of OSC’s directives.
  • OSC FOIA No. FO-13-2515: performance standards for OSC attorneys and investigators.
  • OSC FOIA No. FO-13-0034 (received Sept. 21, 2012): All OSC reports to Congress required under 5 U.S.C. 552(a)(4)(F)(iii).
  • OSC FOIA No. FO-12-1717 (received Feb. 14, 2012): 1) The number of disclosures received by OSC since 1979, per 5 U.S.C. § 1213(a), from employees, former employees, or applicants for employment from agencies exempt from OSC’s PPP jurisdiction per 5 U.S.C. § 2302(a)(2)(C) (e.g., CIA, NSA, etc.) for: a) Disclosures not prohibited by law or Executive Order, per § 1213(a)(1); i) Within par. (1)(a) above, the number of disclosures transmitted to the agency head per § 1213(c). b) Disclosures prohibited by law or Executive Order which OSC is authorized to receive, per § 1213(a)(2); i) Within par. (1)(b) above, the number of disclosures transmitted to the agency head per § 1213(c); and ii) Within par. (1)(b) above, the number of disclosures transmitted to the National Security Advisor and/or the relevant intelligence congressional committees per § 1213(j). 2) The number of disclosures received by OSC since 1979, per § 1213(a), from employees, former employees, or applicants for employment from agencies that are within OSC’s PPP jurisdiction for: a) Disclosures prohibited by law or Executive Order which OSC is authorized to receive, per § 1213(a)(2); i) Within par. (2)(a) above, the number of disclosures transmitted to the agency head per § 1213(c); and ii) Within par. (2)(a) above, the number of disclosures transmitted to the National Security Advisor and/or the relevant intelligence congressional committees per § 1213(j). 3) Any records of any disclosure that OSC did not receive because: a) It was filed by an employee of an agency exempt from OSC’s PPP jurisdiction; and/or b) It was highly classified and OSC did not have a properly cleared employee and/or the special equipment necessary to receive it.
  • OSC FOIA No. FO-11-1717: any records related to any complaints OSC has filed with MSPB, per 5 U.S.C. § 1204(f)(1)(C) and 5 U.S.C. § 1212(a)(4) about OPM rules or regulations that could create PPPs.
  • OSC FOIA No. FO-11-1121: records or information from OSC files reflecting any petitions in federal court for enforcement of OSC subpoenas, pursuant to 5 U.S.C. § 1212(b)(3).
  • OSC FOIA No. FO-10-3596: “publicly available information” from OSC related to 5 U.S.C. § 1219(a)(3) or 5 U.S.C. § 1219(a)(4).
  • OSC FOIA No. FO-06-2732: Court referrals under 5 U.S.C. 552(a)(4)(F) and investigations of all such referrals.

Other

  • EPA-HQ-2013-009959: I seek any and all copies of code(s) of ethics that apply to the agency’s administrative judges, hearing examiners, or administrative law judges, aside from the standard ethics provisions available at 5 C.F.R. 2635 et. seq. Specifically, but without limiting my general request, I am looking for any judicial or adjudicative codes of ethics that might apply here.
  • DOJ OIP/13-01782 (F): all reports submitted to Congress under the following mandate in the FOIA: 5 U.S.C. § 552(a)(4)(F)(ii)(II).
  • DOT FOIA No. 2012-061 (Fee Issue): any records related to the DOT’s compliance with 5 U.S.C. § 2302(c), by which the head of DOT is required to prevent prohibited personnel practices (PPP’s) in DOT, to include records documenting the delegation of this authority within DOT and evaluations of DOT’s performance of this duty, whether by self-assessment or the assessment of others, including the Merit Systems Protection Board per 5 U.S.C. § 1204(a)(3) and the U.S. Office of Special Counsel per 5 U.S.C. § 1214(e).

FOIA Logs

MSPB

OSC

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