The Department of Justice (DOJ) has a FOIA problem. It’s been a two year struggle for the Revolving Door Project to uncover the complete picture of Susan Davies and her employment with the DOJ, and we’ve hit yet another road block because apparently the Office of Legal Policy (OLP) does not maintain personnel records of its own employees. At least, not for Susan Davies. And apparently the Office of Information Policy’s FOIA office wasn’t aware of that.
To recap, in October 2021, our Andrea Beaty and Eleanor Eagan outlined in The American Prospect a months-long effort, full of obfuscation and outright ignoring of inquiries, to get the DOJ to admit that Davies worked there. We eventually learned that Davies was the Deputy Assistant Attorney General in the Office of Legal Policy, and had been since May 5, 2021, although the DOJ initially claimed she began working under that title on September 3, 2021.
Needless to say, we still sought more information to fully understand the nature of her employment. Had she held other positions prior to May 5 2021, and if so what are they and when did they begin? Does Davies still hold that position? To that end, we submitted a FOIA request on August 13, 2021 asking for all of her Standard Form-50s (SF-50), which contains an employee’s job title, dates of employment, and tracks any changes in job titles. On October 26, 2022, over a year later due to the purported complexity of finding a single form, the Office of Information Policy’s FOIA office responded: “A search has been conducted in the Office of Legal Policy, and no records responsive to your request have been located.”
We were very confused at this response. First of all, our request was sent to the Office of Information Policy, not the Office of Legal Policy, and the response gave no indication of whether a search was conducted at other DOJ offices other than the OLP. Furthermore, the OLP themselves had already confirmed Davies’ employment, and all federal employees receive a SF-50 at the start of their employment.
So, we appealed. In the appeal, we gave them the benefit of the doubt. Clearly, the request had been internally transferred to the Office of Legal Policy. Maybe the request should have been transferred to a different office within the DOJ that maintains employment records, as required by law. Perhaps it was simply a mistake in the search at OLP and they needed to take a second look. Whatever the case, surely the DOJ would provide documents for this standard request.
Surprisingly, our appeal was denied. OIP reasoned, “Because it was possible that the Office of Legal Policy might have had responsive records, your request was not misdirected.” They then recommended that, based on the type of records we requested, we should direct our request to the DOJ’s Management Division. It’s worth mentioning that the “FOIA” link on the DOJ’s homepage only leads to the Office of Information Policy, rather than all FOIA offices within the department.
According to the Management Division’s FOIA website, they keep the DOJ’s personnel records. This, of course, begs the question — why didn’t the Office of Information Policy redirect our initial request to them back in August 2021? Clearly OIP knows that the Management Division handles personnel records because they pointed us in that direction. It also calls into question OIP’s claim that the Office of Legal Policy “might have had responsive records.” If the DOJ’s Management Division maintains all DOJ personnel records, then there is no reason to think that OLP would have Davies’ SF-50. Unless, by some odd coincidence, OLP maintains some records of their own employees, just not for the one employee whose employment there was hidden from public view for (at least) 6 months.
It’s truly mind boggling that it has been so difficult to get routine information about a high profile federal employee. Susan Davies was once Attorney General Merrick Garland’s top choice to head the DOJ’s Antitrust Division, but now it takes nearly two years to find out the exact nature of her employment. What protects Davies from being subject to simple FOIA requests? The public deserves to know what role a lawyer who represented Facebook, a company that has repeatedly violated the law, is playing in the Department of Justice. Regardless, we’ve since filed a request with the Management Division and eagerly await the SF-50s that we first requested 17 months ago. Let’s hope the road blocks have finally cleared.
Image Credit: “U.S. Department of Justice headquarters, August 12, 2006,” by Coolcaesar is licensed under CC BY-SA 3.0