Seeking communications between the White House and Department of Labor

Transparency Watch is an occasional series from IRE tracking the fight for open records. If you have a story about a quest for public records you'd like to share, email us at web@ire.org.

This past summer, I reported for The Oregonian on the issue of child labor on farms, specifically the health and safety risks of such work and the existing protections.

A big part of the story was the fact that the U.S. Department of Labor killed its own proposed regulations that sought for the first time in 40 years to offer tighter restrictions for young farm workers.

I requested records of communication from the Department of Labor and the White House Office of Information and Regulatory Affairs, where the rules sat for review before they were killed. My requests were delayed for months. When the responses came from the Department of Labor, the included no direct correspondence between agencies, which I'd explicitly requested and which I knew to exist from conversations on-background with the labor department. The labor department didn't address those missing records. I received the White House records four months after my request, and they were  heavily redacted and also missing communications I'd been told existed.

Farmers and industry groups such as the American Farm Bureau Federation had heavily criticized the proposal because they thought the rules overly restrictive and detrimental to small farms and lauded the decision to kill the proposal. But it riled many farmworker unions, workplace safety experts and child welfare and human rights advocates, who had expected the rules to pass without incident, much the way similar updates had for non-agriculture jobs only a few years prior. Suspicions began to circulate that the rules were killed for political purposes and that the decision came from the White House rather than the Department of Labor. Claims also circulated that industry lobbying swayed the decision.

I wanted to find out if there was any truth to that (which I ultimately found from lobbying reports and a source at the Department of Labor, not from FOIA requests), so I sent the following request to OMB (redacted portions are where I listed my cell phone number):

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OMB Emails 2 (PDF)

OMB Emails 2 (Text)

I then amended that request after talking with Celeste Monforton, an occupational health expert at George Washington University, who advised me on how better to direct my FOIA request.

I then ran into months of delays, which included several phone calls and the emails below with the OMB FOIA office:

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OMB Emails 3 (PDF)

OMB Emails 3 (Text)

I didn't have any better luck with the Department of Labor. I sent this request in June, and got back a link to the public repository of comments on the rule, which I'd already been through, and this collection of comments that were received after the deadline.

I also sent this request to the Department of Labor in July after getting so little back from OMB, explicitly ask the Department of Labor for communication between it and OMB:

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DOL Emails 2 (PDF)

DOL Emails 2 (Text)

What I got in return, from separate departments within DOL, was the same link to the repository of public comments. These responses came after I'd already heard from a source at the Department of Labor that the White House made the final decision on the child labor rules and had sent a press release to be issued under the labor department banner (There are no records of such correspondence, or any other direct correspondence such as email, between the two agencies at the links below):

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I sent an email reply to the Department of Labor about why these responses did not contain what I asked for, nor did they address why they did not contain what I asked for, but have not yet gotten an explanation. I've also spoken to the FOIA office over the phone and have not received an explanation for why correspondence I know to exist is neither provided or nor mentioned as exempt.

The day before the story was finally scheduled to run, I got a response from the White House with the documents below. The Office of Management and Budget said it had found 1,019 pages of documents relevant to the newspaper's request. Of those, 637 were being withheld in their entirety, and the remainder were released with redaction.

The White House said the documents were withheld or redacted "because their disclosure would inhibit the frank and candid exchange of views that is necessary for effective government decision-making."

Notations in the redacted documents refer frequently to (b)(5), an exemption in the Freedom of Information Act for "interagency or intra-agency predecisional, deliberative materials." 

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FinalFor12 139 (PDF)

FinalFor12 139 (Text)

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12 139responsive Documents Set 2 FOIA Re DOL Draft Child Labor Rule 52 Pages With Redactions (PDF)

12 139responsive Documents Set 2 FOIA Re DOL Draft Child Labor Rule 52 Pages With Redactions (Text)

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12 139responsive Documents Set 1 FOIA Re DOL Draft Child Labor Rule 390 Pages of Drafts Submitted and Concluded (PDF)

12 139responsive Documents Set 1 FOIA Re DOL Draft Child Labor Rule 390 Pages of Drafts Submitted and Concluded (Text)

The final story ran on Sunday, Sept. 30. I am appealing the FOIA responses and still hope to learn more about the reasons behind the decision to withdraw the regulations.

Questions and comments are welcome, as are insights about going through the FOIA appeal process. 

You can reach me via email tony@ire.org or on Twitter @tonyvschick