Is the FTC concealing information?
Our 鈥淏ureaucrat of the Day鈥� is Willard K. Tom. Tom has served as a government lawyer in many capacities, including the Federal Trade Commission鈥檚 Bureau of Competition and the Antitrust Division of the Department of Justice. Last year, he was appointed the FTC鈥檚 general counsel by Democratic Chairman Jon Leibowitz.
I feature Mr. Tom in this space today because of from him yesterday. For the past six months, I鈥檝e been trying to get a piece of data from the FTC. Rather then answer a simple request鈥搉o different then several such requests I鈥檝e made over the years鈥揟om and his minions have chosen to hide behind banal, quasi-legal technicalities that only make him, and his superiors, look like they鈥檙e trying to coverup something. Maybe that鈥檚 because they鈥檙e 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鈥檚 ongoing campaign to cleanse the Internet of non-government-approved information regarding medicinal herbs and 鈥渁lternative鈥� medicine. The addressed a lengthy decision by the FTC鈥檚 own administrative law judge, dismissing the Commission鈥檚 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 .) My addressed the FTC鈥檚 apparent retaliation against Isely when the agency鈥檚 secretary illegally posted a confidential document containing all of Isely鈥檚 personal financial information to the FTC website. Subsequently, I have done further reporting at about Isely鈥檚 ongoing efforts to receive compensation from the FTC鈥揾e spent over $130,000 defending himself鈥揳nd 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鈥檝e 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鈥檚 decided to crack down on non-professional journalists who think they have a right to how the FTC spends taxpayer funds.鈥ㄢ�ˋs 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鈥檛 unusual. I鈥檝e 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鈥檚 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鈥檚 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鈥檓 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鈥檓 still not paying for it. So now we鈥檙e at a standoff.
I appealed the first lawyer鈥檚 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鈥檚 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鈥檝e 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鈥檛 defeat a fee waiver request. Indeed, Tom鈥檚 letter actually cited a case to me that said as much!
The second argument鈥揑 failed to prove the public would benefit from disclosure of the information鈥搃s pretty remarkable. Tom insisted that 鈥渢he agency has only denied you access to the information you seek free of charge鈥� (italics his). So, if I understand his position, the FTC believes that information about the Commission鈥檚 spending should not be freely available to the public. Tom said the burden was on me to show disclosure of spending information would 鈥渃ontribute, significantly,鈥� to the public鈥檚 knowledge of FTC operations. I would think that would be self-evident. Apparently not.
The real thrust of Tom鈥檚 argument, it strikes me, is that he doesn鈥檛 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鈥檛 think there鈥檚 any doubt Tom鈥檚 office would have released the information, free of charge and without incident. Especially given FTC Chairman Leibowitz鈥檚 for the government to 鈥渟ave鈥� newspapers and traditional media, Tom鈥檚 actions smack of discrimination against the truly independent press.
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