Whistleblower Requests for Public Documents

Whistleblower Requests for Public Documents

Real journalists use the Freedom of Information Act to obtain government documents that expose important stories.  For example, how FBI staff support Ex-Director Comey.  And how conservative Sinclair Broadcast Group has avoided regulation since Donald Trump’s election.  Real journalists seem to know how to use the FOIA to get information people deserve to see.

California’s Public Records Act of 2004 makes state and local records publicly available, mirroring the access FOIA provides for federal documents.  I sent my first PRA requests to Santa Clara (California) County in June 2014.  I asked for information concerning my whistleblower complaints about HomeFirst’s contract overbilling and food handler card violation.  The County attorney replied that everything was protected by attorney-client privilege.  I got nothing.

Also in June, I asked for copies of emails and reports from the City of San Jose relating to my bid collusion complaint.  Its attorney said all of that was protected except for the City’s short note to me saying there was no problem.  I filed a State records request about my complaint that HomeFirst had violated its EHAP loan requirements.  It answered that it could not find the complaint.   Clearly I did not have the technique perfected.

Then I narrowed my focus.  I would investigate HomeFirst’s repayment of the $1.2 million it had overbilled HUD and the $140,000 it overbilled the County.  Specifically, HUD’s and the County’s communications with the company about paying back the money it owed.  Involving specific people and departments in HUD and the County and with limited date ranges, lest there be any confusion.

After filing three complaints with HUD’s Office of the Inspector General on the overcharges, I made 9 FOIA demands over the past two years.  Two were lost or ignored.  The others yielded small bits of information, but they revealed no serious attempts to get the money back.  HUD is supposed to provide materials within about a month, but they dragged their feet for six months on the last one.  Even though suspected violations of law are involved, the HUD FOIA liaison now wants me to pay for some of the costs.  So I have to appeal that demand.

Recently HUD has taken another new tack.  It’s asking HomeFirst for permission to release communications to me.  HUD relies on the FOIA Exemption 4, which protects trade secrets and commercial/financial information.  Since we’re talking about repaying a lot of money, HomeFirst might well seek to keep the records secret.  Still, HUD previously sent me a copy of HomeFirst’s July 2016 “distress letter,” admitting that it could not repay the money[1].  Maybe I will get something interesting.  We just passed HUD’s 20-business-day deadline for responding to my most recent ask, and I have seen nothing yet.

Santa Clara County has been, by comparison, a pleasure to deal with.  The County website directs inquiries to the Environmental Services Department.  They tell me when they forward my emails to the right department.  They won’t tell me who I should have sent it to.  But we have our routine.  Every couple of months I ask for copies, and a month later I get something back or am told there is nothing available.  No demands that I pay for the material.  As with the HUD overbilling, there’s no sign that HomeFirst’s swindle of the County will be undone soon.

My three years of sending out 33 requests for public documents have produced little of any value.  Occasionally a government employee felt prodded to take a small step toward investigating my complaint.  Mostly the responses confirmed how little I have accomplished with my disclosures.

We read about whistleblowers who win big settlements[2].  And about those who are lionized for their sacrifices[3].  While not diminishing those real sacrifices which no sane person would welcome, it is worth noting that most whistleblowers fail silently.  Most weeks bring soon-forgotten stories of those who lost[4].  Most of whistleblower complaints to California’s Department of Industrial Relations, for example, are dismissed without consideration.  Of the others, 75% are decided against the complainant.  We hear nothing of them.

If we seem to accomplish little through our efforts, that is no reason to stop doing what we can.  Living and fighting seem to me the only viable choice we have.  Regular complaints and public record requests are part of the fight.

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[1] The letter went undisclosed in HomeFirst’s 2016 audit report, published in October 2016.

[2] As examples, Mary Bozzelli and Victor Bibby & Brian Donnelly

[3] Like Chelsea Manning.

[4] For instance, in 2012, Brian Donlon, a social studies teacher at Richard Montgomery High School (Rockville, MD), complained that the school was manipulating AP scores.  The school did not investigate but retaliated against him, he felt.  Five years later, the Maryland Court of Special Appeals decided that the state’s extensive oversight of the school didn’t count toward making him a state employee.  As a result, he deserved no whistleblower protection.

Following a 20+ year military career, in 2012 Steven Kalch was hired by Raytheon to work in Afghanistan on a military contract.  He soon noticed that Raytheon employees were not working the hours charged to the government.  He complained.  A lot, apparently.  Raytheon people called him rude and said he created a hostile environment.  He was fired in January 2014.  The U.S. District Court ruled this month that Kalch had not proven that Raytheon did not perform per its government contracts.  No protection.