by Greg Piper
How many anti-white discrimination complaints have been leveled by employees against the federal watchdog for workplace discrimination? Who is shaping federal policy on “indigenous knowledge” and its implications for scientific research?
The public apparently won’t get those answers unless a judge says so.
The Equal Employment Opportunity Commission and National Science Foundation invoked Freedom of Information Act exemptions on personal privacy to withhold select information from separate FOIA requests by Hans Bader, a former Education Department lawyer under President Trump.
Bader, through his family foundation, has gone on a FOIA tear against various agencies, which sometimes respond with largely unreadable productions.
The State Department blacked out the vast majority of emails deliberating on how it should respond to reporters asking about its funding of the Global Disinformation Index. A December 2022 report by the entity found the 10-riskiest online news outlets were all conservative leaning, sparking arguments that it is attempted to starve predominantly conservative publishers of advertising revenue.
Bader’s former federal employer took the same tack when he sought details on how it developed a proposal that would allegedly “gut” a charter-school program.
EEOC gave Bader a lump of coal for Christmas, waiting eight months after he sued under FOIA this spring to turn over already-public lawsuits filed in 2022.
One alleges the agency discriminated against a Miami office employee because he’s male and represented other males alleging sex discrimination. The court docket shows its most recent action was a canceled Dec. 7 discovery hearing.
The other suit alleged the EEOC discriminated against a New Orleans office employee because she’s white. The parties settled in September after a judge allowed the claim to proceed.
The EEOC has a “much worse record of labor and civil-rights violations than most corporations and agencies with a similar-size workforce,” Bader wrote in an essay Friday.
He pointed to an arbitrator’s ruling in 2009 that it violated the Fair Labor Standards Act through “forced volunteering” and a 1982 court ruling that deemed the agency a “cow stepping into the bucket” by discriminating against white males.
The agency declined to produce any possible administrative complaints alleging anti-white or anti-male discrimination that were filed internally, citing two FOIA exemptions on “unwarranted invasion of privacy” known as (b)(6) and (b)(7)(c) in a Dec. 21 production letter to Bader.
EEOC Assistant Legal Counsel Michael Heise said the Supreme Court only authorizes the release of an individual’s information, which is ordinarily protected, when it reveals something substantial about “an agency’s own conduct.” He didn’t cite any ruling specifically pertaining to internal complaints, but rather those involving information such as employee evaluations and job applications from failed candidates.
Specifically referring to the “law enforcement purposes” protected by the second exemption, Heise implied that release to Bader could lead to “witness intimidation.” Any complainant has a “substantial privacy interest” in keeping the fact and details of their complaint “as confidential as possible,” in part to avoid “embarrassment.”
The EEOC referred Just the News to the Justice Department when asked to elaborate on how the two exemptions aren’t a cover to protect the agency itself from scrutiny, saying “these may be subject to arguments in court.”
While administrative complaints can be covered by the law enforcement exemption, the feds have yet to explain “what foreseeable harm would result from disclosure” as required and why they can’t just “redact anything sensitive,” Bader told Just the News.Â
Bader has gotten more out of his FOIA suit against NSF and the White House Office of Science and Technology Policy concerning how the feds use indigenous cultures, beliefs, and practices to inform scientific research as well as restrict it, such as by giving veto power to tribes over research about their cultures.
Their previous production to Bader revealed how seriously the NSF took a grant reviewer’s exhortation to crack down on “helicopter science” by “settler scientists,” such as research on the Maori’s environmental impact on New Zealand, and OSTP’s guidance that says even consensual release of indigenous knowledge “can cause irreparable harm.”
NSF’s new 212-page production, however, repeatedly scrubs not only the policy deliberations on indigenous knowledge from emails but also the names of those involved, Bader groused in an essay Monday.
This is an inappropriate use of the (b)(6) exemption, which is not meant to shield “lobbyists or people petitioning the government” and even less so government officials, “even when they are powerless people not involved in setting government policy, like paralegals,” he wrote.
Even under the deliberative-process FOIA exemption, the feds are supposed to release names and affiliations of all senders and recipients in a so-called Vaughn index, Bader said.
Two email threads dated June 16, 2022, which may be related, include NSF Arctic Social Sciences program officer Erica Hill.
The morning thread starts with a non-NSF person named “Kelly,” whose name appears to have been accidentally left in twice, proposing “TK [traditional knowledge] language” from an “interagency workgroup” in a memorandum of understanding on tribal treaty rights.
The recipients are Hill, human resources official Lura “Jody” Chase and multiple redacted names, who apparently suggest edits or additions to Kelly’s proposal, all redacted under the deliberative-process exemption.
Eight hours later, in a new email thread with the subject line “ITEK [indigenous traditional ecological knowledge] edits,” Hill tells a redacted non-NSF person “I got all of your changes entered.” (The subject line is marked “external,” meaning a non-NSF person received it.)
Another external person involved in “ITEK Subgroup 3” emailed Chase the month before to explain their understanding of how “controlled unclassified information” and FOIA “interact relative to NPS archival collections,” apparently referring to restrictions on public access to National Park Service materials.
Chase added Hill to the thread, who changed the subject line to “ITEK3 text edits,” made her own changes, then told the redacted name “Hand off to you.” The unknown person made further changes, including “proposed appendices,” and asked Chase to review. Their discussion is otherwise redacted as a deliberative process.
When Chase asked “everyone,” apparently referring to the ITEK subgroup, for further suggestions on the “Draft report w/appendices for OSTP call,” a non-NSF redacted name provided “minor edits” that were also redacted.
The redaction choices and justifications flabbergasted Bader, who said the deliberative-process exemption doesn’t apply to communications “from outside the federal government,” as may have happened here.
NSF declined to explain its redaction choices or justifications or respond to Bader’s claims to Just the News, saying it can’t comment while the “case is under litigation.”
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Greg Piper has covered law and policy for nearly two decades, with a focus on tech companies, civil liberties and higher education.
