For many years, FELTG would file FOIA requests with MSPB to get material to use in our training. Nothing brings home a point like seeing the original proposal letter that caused the agency to lose the removal appeal due to poor charge drafting. MSPB provided us those materials for several years. Then, MSPB started denying our requests, citing the privacy interest of the appellants. Interesting in that MSPB hearings, where these documents might be discussed, are public, and the documents are otherwise government documents. So, we moved on. Next, we FOIAed for the list of parentheticals and case citations that MSPB attorneys use when drafting decisions. Hit a couple of key strokes and the following will pop up in your word processing document: “Once the agency proves these elements, its action is not subject to further review by the Board. See 5 U.S.C. § 4303(a); Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed Cir. 1985) (if the agency meets its burden, the Board has no authority to mitigate a penalty effected under chapter 43).” We had obtained this list in the past and distributed it on CD to practitioners in our classes at no charge, knowing it would help them write better legal documents. Well, this year that FOIA request was denied: deliberative process exemption. But my favorite was the FOIA denial we got a couple of weeks ago. We asked for the MSPB phone book, the listing of government phone numbers in the Board’s government offices. Denied: unwarranted invasion of privacy. Who knew that an empty conference room with a phone had a privacy expectation? Look MSPB: You’re a government agency, one who rightly or wrongly has been accused of doing a poor job, so poor that Congress has taken steps to reduce your authority, and perhaps may be thinking about shutting you down altogether. Maybe you should spend some time helping those of us who are trying to help the civil service stay viable, and help you do a better job. Because denying us access to government documents is not helping the cause one bit. Honestly, if Skynet doesn’t take over soon, I don’t know what I’ll do.
