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BPA Delays Public Records Releases Again,
Keeping the Lid on Hiring Scandal Details

Ted Sickinger
The Oregonian, April 9, 2014

Bill Drummond was sworn in  on February 7, 2013 as BPA administrator by Deputy Secretary of Energy Daniel B. Poneman only to be escorted from his BPA's office six months later.

The Bonneville Power Administration has once again delayed the release of public records related to its recent hiring scandal, keeping a lid on e-mails and internal communications that has been in place since the federal power marketing agency's top two executives were suspended last July.

Public agencies are required to respond to records requests under the Freedom of Information Act within 20 working days, though they can request extensions if the requests are too voluminous to meet in the prescribed timeframes.

Audits and subsequent investigations of BPA released last fall described a massively dysfunctional human resources operation that was routinely violating federal hiring practices and disadvantaging qualified veterans who should have had preference rights to open positions at the agency. The investigation called out the agency's leaders for involvement in and awareness of some of the incidents, and said managers tolerated a culture of mistrust and intimidation and routinely deflected oversight from the Department of Energy.

BPA's hiring imbroglio triggered a number of voluminous records requests, many seeking emails from former and current managers and inter-agency communications about the hiring problems and subsequent investigations. The requests also seek various audits, hiring records and ethics complaints related to hiring.

The agency has yet to offer a substantive response to many of those requests. Since last fall, it has systematically missed its own release deadlines, failed to notify requestors of repeated delays, and then missed the slipped deadlines it has established.

The agency did rush out a response to two requests Tuesday in response to several calls from The Oregonian seeking comment for this story. The responses included a handful of emails and memos to and from former BPA Administrator Steve Wright regarding the agency's human resources issues. The original request for Wright's emails was made last August, and the agency subsequently asked The Oregonian to modify its request because the potentially responsive documents were too numerous to process. The full response was 26 pages long.

Delays on remaining requests come despite repeated assurances by BPA's new administrator, Elliot Mainzer, that he was pushing for prompt action on the records requests and looking to build a culture of transparency at the agency.

BPA initially claimed that its internal FOIA office lacked the necessary personnel to respond to the raft of requests, and it did eventually hire three outside contractors to help expedite processing.

But in letters sent last week to The Oregonian, it said some of the requests were now under legal review.

In other instances, it said it was consulting with other federal agencies, including the U.S. Department of Energy and Office of Personnel Management, on the records releases. Those agencies, it said, "may be better able to determine whether the information is exempt from disclosure."

BPA has also declined to make partial releases of responsive documents - a fairly standard practice for public agencies struggling to respond to large requests.

Kim Winn, BPA's internal FOIA liaison, said Monday that her office was frustrated by the delays as well. She said her staff had completed processing all The Oregonian's overdue records requests -- some in November -- only to see them languish in the agency's legal department without action or returned for corrections.

"The rules change every five minutes" she said. "It's driving us crazy."

Winn said the practice of allowing another agency to make the call on whether a record should be released or withheld is unprecedented.

"We have never in the past sent OPM or any other agency emails to review. We can make that determination ourselves," she said.

Winn wouldn't comment on whether the holdup was in the legal department at BPA or DOE, but notations on the agency's public FOIA log suggest that the requests have been making regular round trips between Portland and Washington, D.C. The Oregonian's request for emails from former BPA administrator Bill Drummond included the following notation: "To DOE 10/2013 and retnd 1/14. rtrnd 2d time 2/25 corrx and rtrnd to hq 2/26."

The agency now estimates that particular request, filed July 17, 2013, will be ready July 28, 2014.

The BPA attorney who oversees FOIA requests, Paul Mautner, did not return call for comment. His office has declined to release some records and heavily redacted others, erasing names and identifying titles because of privacy concerns, attorney-client privilege and the agency's decision that there was a lack of any public interest in requested disclosures.

Peter Cogswell, manager of regional relations at BPA, insisted that transparency was important to Mainzer, who had made that expectation clear within BPA. But he said the process was bigger than just BPA, and there was a lot of back and forth with DOE headquarters.

Niketa Kumar, a spokeswoman for U.S. DOE, said additional "collaboration" was necessary between the two agencies because of the complexity and number of the requests.

Neither provided specific details of that collaboration.

"The new BPA had an opportunity to show it was committed to transparency," said Dan Seligman, a Seattle attorney who writes a blog covering the agency - BPA Watch - and has several records requests pending. "The new obstacles to the release of information suggest that the new BPA is the same as the old BPA."

Seligman said he was told that at least one of his records requests was ready to be sent out, but that release was "sandbagged by lawyers, either in Portland or D.C."

He wrote to U.S. Deputy Energy Secretary Daniel Poneman last week explaining that BPA's deadline on one of his records requests "is always a moving target. First, it slips to November, then January, then February, then March. Each time the deadline changes and a new date is set for documents to be released but nothing happens."

He asked Poneman to step in and expedite the process.

"Both you and Secretary Moniz have correctly said you value transparency and you expect agencies like BPA to do the same. I concur with your assessment and hope you will take the appropriate action."

Ted Sickinger
BPA Delays Public Records Releases Again, Keeping the Lid on Hiring Scandal Details
The Oregonian, April 9, 2014

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