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FOIA Focus: Vern McKinley, Attorney, Consultant, Author & FOIA Requester

FOIA Focus (2015-16)Allan BlutsteinComment
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From 1985 to 1999, you worked at the Board of Governors of the Federal Reserve (Fed), the Federal Deposit Insurance Corporation (FDIC), the Resolution Trust Corporation (RTC), and the Office of Thrift Supervision (OTS).   What were your roles there?   Were you exposed to FOIA in any way?

I held a range of positions from examining banks at the FDIC; to acting as a research assistant to economists at the Fed; to overseeing a financial reporting group at the RTC; to acting as a legal advisor on capital regulations at the OTS.  I had some exposure to FOIA at the RTC. My section was responsible for drafting the RTC’s financial statements and responding to audit questions from the General Accounting Office (GAO, later renamed Government Accountability Office); and issuing a number of reports for the Congress, the GAO, the Office of Management and Budget and the Congressional Budget Office. So we received FOIA requests for data on the RTC’s operations from the agency’s FOIA office.  We were under a lot of scrutiny during that time, as we were spending tens of billions of dollars on resolving broke savings and loans and not many people understood why that was the case.  There were a number of scandals of the “waste, fraud and abuse” variety during those years at RTC.  I also got to know one of the people who responded to FOIAs for RTC and remember him complaining about people who were always trying to break the next big scandal.  I guess I filed all those memories away for later use.

 When did you make your first FOIA request and what were the results? 

Like everyone else as the fall of 2008 unfolded, I looked on in horror at the panic being displayed by the financial agencies. I had worked on issues for addressing troubled financial institutions and bailouts my entire career, so to me it seemed they had no clue what they were doing and their explanations for their actions did not making any sense.

So I started pulling together some of my thoughts to publish an analysis on the bailouts with a colleague of mine.  As part of that I submitted a few standard FOIA requests for information regarding why they did what they did.  The Federal Reserve in Washington ignored my request and the FDIC gave me documents, but they were so heavily redacted that they were incomprehensible.  I knew I was on to something when they were so opaque in answering some basic questions about why they did what they did.  The analysis was published before I got anything of substance from the Fed and FDIC, which required suing both of them in federal court as joint defendants.  Eventually I did get some useful documents after fighting the agencies in court for a few years and that led me to the conclusion that the underlying analysis for the bailouts was just seat-of –the-pants and ad hoc.

On the Fed component of the lawsuit, Judicial Watch (my attorneys) and I were fighting the breadth of the deliberative process exemption (discussed further below) and took this issue through the district and appeals court and ultimately petitioned the Supreme Court to limit this massive loophole for the agencies. But, as you probably know, the courts generally give deference to the agencies on these matters and the Supreme Court was no different and they denied cert.

On the FDIC component of the lawsuit, they eventually disclosed the documents to me after the Wall Street Journal editorialized on my efforts. The FDIC originally released a document that was mostly whited out. Ultimately I received the full document without redactions. In my book on the financial crisis, Financing Failure, I do a side-by-side comparison of the redacted and un-redacted documents.  If you compare the two documents, the before and the after, you can tell why they did not want to disclose the details. The underlying analysis was incredibly weak, embarrassingly so.

You brought a total of six FOIA lawsuits between 2009 and 2012 seeking various financial records, including those maintained by a few of your former employers.  Can you tell us what happened? 

About the time I initiated that first case, which was focused on just two of the bailouts, I had decided to do a book on all the bailouts.  So I filed further requests and started a full cycle of cases against the FDIC, the Fed and the Federal Housing Finance Agency (FHFA) to compel release of details on other bailouts, again with the help of Judicial Watch. 

Beyond the case mentioned previously, I also sought documents from the FDIC on bailouts of Citigroup, Bank of America and the Temporary Liquidity Guarantee Program.  That case was sent back to the agency to supplement its responses and the judge verbally spanked the FDIC, at one point calling their argument “baseless” and at another point saying he was “troubled” by aspects of their response. 

In a case against the FHFA, the agency was ordered to produce documents regarding the choice to place Fannie Mae and Freddie Mac into conservatorship for review.  Another case against the Board of Governors of the Federal Reserve requesting American International Group (AIG) and Lehman Brothers-related documents, resulted in the release of about 2,388 pages of redacted documents.  I had a few other cases in an additional cycle of litigation, but it did not seem that we were making much progress given the resources expended, so Judicial Watch dropped the cases on my behalf.

 In 2012, you authored Financing Failure:  A Century of Bailouts.  How much of the book incorporated records you obtained via FOIA?         

 The lawsuits formed the basis for much of the evidence on the bailouts during 2008 and 2009 that I presented in the book and those documents I got my hands on were what made the book unique.  In the case of the books written by Secretary Paulson, Secretary Geithner and FDIC Chairman Bair, they all were working with asymmetric information advantages in putting their books together.  In the books by Bair and Geithner, it appears as best I can tell based on the evidence that they both left their agencies with documents (one might call it ‘stolen’ if one were so inclined) containing “non-public information,” without running any approvals through the required FOIA processes.  I find that to be quite outrageous, as they basically unilaterally picked and chose the documents they wanted for their book, without regard to FOIA restrictions and with no one from the agency reviewing them for FOIA compliance that your average observer would be subject to.  Judicial Watch and I have requested those same documents from the FDIC and Treasury and they were not released to us under FOIA as the agencies cited various exemptions or did not respond at all.

My book could not directly compete with those information advantages and I was not going to abscond with government documents.  But because I was getting my documents through FOIA requests and put all the effort into that process and not too many researchers were going that route, a lot of the details I disclosed were just not available elsewhere.  Obviously Paulson, Geithner and Bair were not inclined to disclose all the embarrassing details or anything that would make Treasury, the Fed, FDIC or FHFA look disorganized.  I should add though that Bair in her book was critical of many of the interventions by the government and the overall lack of an analytical basis for many of the decisions.

 If you could change anything about the FOIA, what would it be and why?

The deliberative process exemption, which allows agencies to label their internal discussions as ‘deliberative’ in nation, and allows them to prevent disclosure without giving their underlying reasoning.  As I mentioned, Judicial Watch took that issue through the District Court, Appeals Court and submitted a cert petition before the Supreme Court to try to broaden the capacity of requesters to limit or otherwise undermine the breadth of the deliberative process exemption by making the agencies show some harm to the decision-making process.

I spoke about my book and FOIA experiences in front of one group made up largely of people in the defense and intelligence community.  They were appalled at the fact that these financial agencies could withhold this detail through such an open-ended exemption, as compared to more justifiable reasons that documents are traditionally withheld, for example due to national security reasons.

You ran for Congress in 2008.   What was that experience like and would you ever consider running again?

Good experience overall as the district had an interesting makeup, extending from the Washington, DC suburbs out to the West Virginia border.  Definitely would not do that again as it is not worth it to spend that much time and money again unless I have a real chance of winning and right now I don’t.  Given my political philosophy, unless I move away from the military-industrial and big government complex of the Northern Virginia suburbs and exurbs, I have absolutely no chance with another run.

You grew up in Chicago and attended the University of Illinois at Champaign-Urbana before moving to the D.C. area.  Who are you rooting for if the Cubs and Nationals play for the pennant?            

Definitely the Nationals.  My son has made me a Nats fan after a hiatus for me from watching baseball that lasted from about 1981 to 2011.  Plus I grew up on the Southside of Chicago, so I was a White Sox fan growing up and would not consider rooting for the Cubs, even if it has been 107 years since they won the World Series.  Now, a Nationals and White Sox World Series would be a tougher decision, but would probably still go with the Nats.

What was your first job ever?  What did you like or not like about it?

I worked in a grocery store in suburban Chicago during high school.  I chased down grocery carts in the parking lot, bagged groceries and cleaned the employee break room, including the toilets.  I will let you guess which of those tasks I did not like.

What do you like to do in your spare time?

We have two pre-teens, so when I am not working, or drafting a policy analysis or doing research for a book, we are usually attending their sports practices and games (soccer, softball, basketball).

What is your most memorable travel experience?

I have been lucky enough to have the opportunity to do a lot of traveling for my consulting and legal work to some countries that not many Americans have gone to, including Libya, Afghanistan, Sudan, Tajikistan, but the most memorable experience for me was Armenia which is where I met my wife.

What are some projects that you are working on now? 

There is a great ongoing effort for governments around the world to be more prepared for the next financial crisis. In that vein, I have advised in a number of countries that are developing their crisis preparedness and management capacity.  I am also starting the research for a second book, which may involve some further FOIA litigation.