The memo by Peggy Gustafson was posted to the Office of the Inspector General’s website in what marks a rare public airing in a dispute between an agency inspector general and a Cabinet secretary. The focus of the impasse, Gustafson writes, is the department’s assertion of a broad claim of privilege that would exclude publication of certain material in the report, which began 10 months ago.
The secretary’s office, the letter from Gustafson states, is asserting “amorphous and generalized privileges” over the contents of the final report, thereby preventing the OIG from releasing it. The main conclusions of the report are already publicly known as Gustafson, an appointee of President Barack Obama, posted a summary of the findings, dated June 26, late Monday night.
The summary said the full report was expected to be released on Monday but was still under wraps as of Thursday.
That summary document includes redactions it says the Commerce Department requested, “while the Department and its stakeholders complete a pending privilege review” of the full report.
The summary faults the department’s handling of an unsigned Sept. 6, 2019, statement from NOAA backing President Trump’s erroneous statements that Hurricane Dorian posed a major threat to Alabama — including his infamous modification of a hurricane forecast map, an incident dubbed “Sharpiegate.” Then the NOAA statement criticized its own National Weather Service office in Birmingham for issuing a tweet to calm public concern after a tweet from the president on Sept 1.
The summary concluded that the Commerce Department ran a “flawed process” that did not sufficiently engage NOAA and went against the interests of the agency and the National Weather Service, which it oversees. By issuing the Sept. 6 statement, “the Department failed to account for the public safety intent of the NWS Birmingham tweet,” the summary said. The statement’s release provoked an uproar among NOAA’s scientists and its constituents, who said backing the president’s flawed claim rather than its own scientists harmed the agency’s credibility.
Separately, an independent NOAA report found that the agency’s issuance of the statement violated its scientific integrity policy.
The agency’s credibility is especially important now at the heart of what forecasters expect to be an unusually active hurricane season. This hurricane season will pose unprecedented challenges for storm preparations and response, given the intensifying coronavirus outbreak in storm-prone states such as Florida and Texas.
The Comment Department’s official response to the OIG memo, which alleged obstruction, said it “is not preventing the Office of the Inspector General from releasing the report in whatever form the Office Inspector General deems appropriate.”
The response, obtained by the Post on Thursday, is signed by Sean Brebbia, the Commerce Department’s acting deputy general counsel, and John Luce, NOAA’s general counsel. It states the OIG memo “contains overly broad assertion of IG independence and authority” which the department disagrees with.
The response claims Secretary Ross and deputy secretary Karen Dunn Kelley are “naturally recused” from involvement in the department’s response.
U.S. senators Jeanne Shaheen (D-N.H.) and Jerry Moran (R-Kans.), the vice chair and chairman of the Senate Appropriations Subcommittee for Commerce, Justice, Science and Related Agencies, sent a letter to Secretary Ross Thursday, expressing bipartisan concern about the alleged obstruction.
“[W]e expect you ... to immediately rectify the issues outlined by the DOC OIG that are preventing the completion of the Evaluation of NOAA’s September 6, 2019, Statement About Hurricane Dorian Forecasts," the letter states.
Eddie Bernice Johnson (D-Tex.), chairwoman of the House Science Committee, which is also investigating ‘Sharpiegate,’ called the OIG’s obstruction allegations “disturbing.”
Sen. Maria Cantwell (Wash.), the ranking Democrat on the Senate Commerce, Science and Transportation Committee, said: “This situation has gone from bad to worse. Secretary Ross must immediately cease this campaign to keep the public in the dark. The Inspector General is doing their job and the public deserves to see the report. Release the report now, Mr. Secretary.”
The OIG memo released Wednesday makes clear the office’s responsibility is to conduct “independent and objective” investigations of the department. It asserts that the department must “fully cooperate” and “make every effort to assist” the OIG, according to the Inspector General Act of 1978.
But, for this investigation, it claims that “full cooperation and assistance is absent."
The memo alleges that the Commerce Department was given the opportunity to identify privileged information in the report, which could potentially be redacted before release to the public. But it states that the department is trying to block the report’s release on account of privileged information that it never identified, for reasons that have not been made clear.
“The final publication of our evaluation has been delayed, thwarted, and effectively [stopped] by the Department’s refusal to identify specific areas of privilege,” the memo states.
According to correspondence obtained by the Post between the NOAA general counsel, John Luce, and the top lawyer for the OIG, Wade Green, there were ongoing discussions over the identification of material to redact due to privilege claims. Such privilege claims included presidential privilege, indicating White House involvement in some of the communications contained in the report.
On June 29, the day the report was supposed to be released, the OIG's office asked for a complete accounting of the redactions the department was requesting, to be followed by a discussion if there were any disagreements.
According to Rebecca Jones, a policy counsel at the nonprofit government watchdog group Project on Government Oversight, the inspector general cannot at this point issue an un-redacted version since she could run afoul of privilege claims, nor is it the OIG’s job to identify the specific privilege claims and determine redactions on its own.
The OIG memo further details concern that the department is trying to prevent the report from coming out to “shield” certain high-level officials from blame over the NOAA statement. It notes that the department was at first “consistently collegial” in discussions regarding redactions to the report, but that there was a “tone shift” once the report was ready to be released.
“I am concerned that the substance of our report and findings has resulted in this retaliatory posturing,” the memo states.
The memo suggests that the department is now attempting to stall or block the report altogether through its protests over privilege.
“To allow the Department’s all-encompassing and opaque assertion of privilege to stand is to effectively grant the Department a pocket veto over the completion and issuance of final OIG work, which is clearly contrary to the IG Act, OIG independence, and good government,” the memo states.
The memo requests that the department provide detailed privilege markings “that are precise and unambiguous,” along with rationale for them, by 3 p.m. on July 9.
Separately, Wednesday brought the last in records releases related to “Sharpiegate” that were spurred by Freedom of Information Act requests from The Washington Post and other media outlets. The trove of emails and text messages surrounding the issuance of the NOAA statement on Hurricane Dorian show that senior Commerce Department officials were involved in working on the NOAA statement and establishing a timeline of key events surrounding the agency’s forecast communications during the storm, including comparing NOAA’s forecasts to what Trump had said about the storm and when.
Gustafson’s public memo comes at a time when inspectors general across the federal government, who are supposed to serve as independent watchdogs at their agencies, are under pressure from the Trump administration. Trump has moved to dismiss inspectors general who have issued reports unfavorable to the administration or for unspecified reasons, including most recently the inspector general for the State Department as well as the Health and Human Services Department.
If the Commerce Department’s recent actions are “an attempt at executive roadblocking, as the IG seems to insinuate, it could cause further damage to the IG independence we’ve come to rely on if more agencies start to employ this tactic,” Jones said. "Congress needs to get involved and stay involved until this situation is ironed out.”
Gretchen Goldman, the research director for the Center for Science and Democracy at the Union of Concerned Scientists, called the alleged Commerce Department’s obstruction “entirely unacceptable.”
“This is yet another indication that the behavior of political leadership at NOAA and Commerce leadership has been inappropriate since the day the President picked up that Sharpie,” she said.
“If he wants to show leadership, NOAA Acting Administrator Neil Jacobs should call for release of the report.”
Trump has nominated Jacobs to a Senate-confirmed position to lead the government’s primary oceans and atmospheric science agency, and his nomination has cleared the Senate Commerce Committee.