by Greg Piper
A Department of Transportation component slammed the brakes following semi-furious opposition to its proposal for “on demand” law enforcement surveillance of commercial vehicles a year and a half ago.
It took another six months to turn over the records after a FOIA lawsuit to compel their release, a day before they were due in court Thursday, with no indication yet from FMCSA when it would release a final rule.
The Federal Motor Carrier Safety Administration had internal conversations about those public comments over several months, including via personal email, at the same time it was stalling a Freedom of Information Act request for its communications about the “constitutional implications” of the electronic-tracking advance notice of proposed rulemaking (ANPRM).
What can the public learn from the nearly 500 pages? Almost nothing.
FMCSA blanked out all but 30 pages under the FOIA exemption for “deliberative process privilege,” a redaction notation that appears more than 500 times in the production to the Bader Family Foundation, more than 30 of those paired with the notation “attorney-client privileged.”
The FBI went even further with Whitey Bulger this past week, refusing to turn over further records from the notorious mobster’s case file in response to Boston Herald FOIA requests, the newspaper reported.
The feds cited a “pending or prospective law enforcement proceeding relevant to these responsive records” that prevents their release, without further explanation.
Bulger was murdered in prison in 2018 and his convicted FBI handler is on “compassionate release,” the Herald reported. The mobster “took to his grave the dirty dealings he had with the Boston branch of the FBI when he was killing with impunity.”
Prompted by a petition by the Commercial Vehicle Safety Alliance, the ANPRM on “electronic identification” drew more than 2,000 comments including from the public interest law firm Institute for Justice, which warned FMCSA it would get sued if the ideas went into a final rule.
“Demanding that 12 million commercial vehicles install an electronic monitoring device that can track the vehicles’ whereabouts is both an unconstitutional search and an unconstitutional taking of private property” that violate the Fourth and Fifth Amendments, bypassing the required “warrant based on probable cause to believe a crime is being committed,” IJ said.
“Truck drivers are already operating under an almost Orwellian degree of government monitoring and scrutiny,”and the proposal is vague on what data the devices would transmit, senior attorney Rob Johnson wrote in a November 2022 blog post.
IJ quoted a New York Times essay months before the ANPRM that called long-haul truckers “some of the most closely monitored workers in the world” and the Canadian COVID-19 vaccine mandates for cross-border hauls “the straw that broke the camel’s back,” erupting in trucker protests in February 2022.
“The Department of Transportation offers no reason to believe the warrantless collection of identifying information will make anyone safer,” just that it “might make some inspectors’ jobs easier,” IJ attorney Jared McClain wrote in Reason that month.
FMCSA already requires interstate motor carriers to use “electronic logging devices” for “record of duty status,” and several states have intrastrate requirements, most recently California, CDLLife reported. (The FOIA production notes the agency nearly wrote “ELD” instead of “e-ID” in the ANPRM.)
Former Trump administration Department of Education lawyer Hans Bader, a trustee of his family foundation and frequent FOIA filer, posted the production and his analysis Thursday.
Despite the requirement that agencies issue determinations in response to FOIA requests within 20 working days, FMCSA told Bader it would take “up to 5 months” but had given “no documents and no further response” by seven months, prompting the lawsuit, he wrote.
Bader told Just the News he was surprised the final rule hadn’t been released yet, given the relatively small number of comments, but “maybe it proved a bit more controversial than they thought, or they are slow in reviewing and responding to all of the comments.”
His administration’s Title IX regulatory proceeding took nearly two years, and the Biden administration’s Title IX rollback is approaching the two-year mark, but they prompted “50,000 or 100,000” comments each, Bader said.
He was also surprised to see the agency redact the name of a person who filed a critical comment long after the deadline, since “names of people seeking government action are not supposed to be redacted” under legal precedent.
Most of the 461 blanks in the FOIA production are from drafts of the “Final Public Comment Analysis Summary Report” and “Final Excerpt-by-Issue Report of Substantive Comments,” both dated Jan. 13, 2023, about two months after public comments were due.
Another four sections of blanks appear in the final 70 pages, two each 16 and 12 pages, which may be duplicates. Only eight pages are fully unredacted while another 22 have partial redactions citing the deliberative and attorney exemptions, many apparent duplicates.
One intriguing disclosure: Attorney-Advisory Anna Nassif Winkle emailed FMCSA’s longtime Deputy Chief Counsel Charles Fromm at his personal address Jan. 27, 2023, to share redacted discussions from the “Electronic IDs team,” where she “pushed for a robust discussion.”
Winkle attached a missing document, apparently a recommendation, asking Fromm for “any questions or concerns” ahead of a requested briefing with the attorney-advisers.
Fromm forwarded the email to his government address late that night and responded from there to Winkle, then-Chief Counsel Earl Adams and Arija Flowers, another AA, early the next morning, noting it had gone to his redacted personal address.
He shared his own redacted thoughts and asked Winkle to forward the automated comment summary made with vendor ICF’s software.
Even if Winkle emailed Fromm’s personal address by accident, the exchange shows she had it in her system and may have contacted him there previously in potential violation of FOIA obligations.
Partial blanks include missing email attachments from June 12, 2023, on “Level VIII” legal questions and notes from “Steering Committee” meetings related to cybersecurity and data privacy and with counsel. Level III refers to “Operational Test of In-Motion [Commercial Moter Vehicle] Inspections.”
Days earlier, Technology Division Program Manager Thomas Kelly told Attorney-Advisor Jean Wulff, “We didn’t get into our questions document in more detail” at a morning meeting and asked for responses to those questions to be “ready by end of next week” because of an “IT requirements deadline of July 15,” 2023.
Wulff had shared August 2022 Steering Committee notes with counsel with another official in March 2023.
FMCSA did not respond to queries Friday to explain why the production took so long, why so much is blacked out, the status of the proceeding and Fromm’s possible use of a personal email for agency business.
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Greg Piper is a reporter at Just the News.
Photo “Semi Truck Checkpoint” by Patsy Lynch.
