Is the FTC concealing information?

Our “Bureaucrat of the Day” is Willard K. Tom. Tom has served as a government lawyer in many capacities, including the Federal Trade Commission’s Bureau of Competition and the Antitrust Division of the Department of Justice. Last year, he was appointed the FTC’s general counsel by Democratic Chairman Jon Leibowitz.

I feature Mr. Tom in this space today because of a letter I received from him yesterday. For the past six months, I’ve been trying to get a piece of data from the FTC. Rather then answer a simple request–no different then several such requests I’ve made over the years–Tom and his minions have chosen to hide behind banal, quasi-legal technicalities that only make him, and his superiors, look like they’re trying to coverup something. Maybe that’s because they’re trying to coverup something.

Last year, I posted two items on this blog about William Isely, an 84-year-old retiree who got caught up in the FTC’s ongoing campaign to cleanse the Internet of non-government-approved information regarding medicinal herbs and “alternative” medicine. The first post addressed a lengthy decision by the FTC’s own administrative law judge, dismissing the Commission’s complaint due to the fact the FTC had prosecuted Isely for owning and operating a website that, in fact, he neither owned nor operated. (The Mises Institute later reprinted this post in The Free Market.) My second item addressed the FTC’s apparent retaliation against Isely when the agency’s secretary illegally posted a confidential document containing all of Isely’s personal financial information to the FTC website. Subsequently, I have done further reporting at my personal blog about Isely’s ongoing efforts to receive compensation from the FTC–he spent over $130,000 defending himself–and how Commission lawyers have dragged their feet in negotiations.

As part of my reporting, I filed a Freedom of Information Act request with the FTC simply asking how much the Commission spent falsely prosecuting Isely. This was not an unusual request. In nine years of writing about the FTC, I’ve asked for case-specific spending data before, and the agency has always replied without issue. Indeed, in some cases the Commission has volunteered a greater amount of detail then I would have accepted.

But that was before Tom was general counsel. Apparently, he’s decided to crack down on non-professional journalists who think they have a right to how the FTC spends taxpayer funds.

As part of my FOIA letter, I also asked the FTC to waive any fees associated with the search for, and reproduction of, documents responsive to my request. Again, this isn’t unusual. I’ve always asked for and received such waivers in the past. The FOIA itself contains a fee-waiver rule that the courts have constructed quite liberally to maximize public access to information. And let’s keep in mind, the only thing I asked for here were two numbers: How much the FTC spent on the Isely case, and specifically how much was spent to procure an expert witness report. (That report, incidentally, was worthless, since it addressed the merits of the FTC complaint, which the judge never reached.) It’s not like I was asking them to pull files from the 1940s out.

The FTC lawyer who reviewed my FOIA request denied my waiver request, without any explanation or citation of legal authority. Because she denied the waiver, she refused to answer my request unless and until I agreed to pay an unspecified amount of fees. My position on this is absolute: I’m not paying for information about how a government agency spends its money. I never paid for it in the past, and just because the Democrats are running the FTC now, I’m still not paying for it. So now we’re at a standoff.

I appealed the first lawyer’s decision to Mr. Tom, who as general counsel makes a final ruling. He also denied my request, but he sent an explanation. Well, it was a half-assed attempt at an explanation.

The thrust of Tom’s argument is that I failed to provide enough information to justify my fee-waiver request. He said I did not persuade him that (1) I would actually disseminate the requested information to the public and (2) the public would actually benefit from the information. The first charge is curious. As I explained in my filings, I’ve already written widely-disseminated articles at Mises.org about the Isely case. It should have been obvious that I would have also disseminated the spending information here and through other media. The fact that I did not specify the exact methods of dissemination can’t defeat a fee waiver request. Indeed, Tom’s letter actually cited a case to me that said as much!

The second argument–I failed to prove the public would benefit from disclosure of the information–is pretty remarkable. Tom insisted that “the agency has only denied you access to the information you seek free of charge” (italics his). So, if I understand his position, the FTC believes that information about the Commission’s spending should not be freely available to the public. Tom said the burden was on me to show disclosure of spending information would “contribute, significantly,” to the public’s knowledge of FTC operations. I would think that would be self-evident. Apparently not.

The real thrust of Tom’s argument, it strikes me, is that he doesn’t consider websites like Mises.org a legitimate source of public information. If I were a reporter at the Washington Post and filed a FOIA request asking for spending data, without further explanation, I don’t think there’s any doubt Tom’s office would have released the information, free of charge and without incident. Especially given FTC Chairman Leibowitz’s recent calls for the government to “save” newspapers and traditional media, Tom’s actions smack of discrimination against the truly independent press.

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