U.S. Sen. Scott Brown Monday formally asked the National Oceanic and Atmospheric Administration for all memoranda and documents used by Commerce Secretary Gary Locke to reach his decision not to discipline or punish the then- director of federal fisheries law enforcement or any of his agents and litigators involved in the mistreatment of fishermen documented by investigators.
In a letter to Eric Schwaab, administrator of the National Marine Fisheries Service, Brown specifically asked for "41 documents you located but did not release in response" to a private attorney, whom the Times has identified as Paul Muniz, of Burns & Levenson, Muniz represents the Gloucester Seafood Display Auction.
The auction was one of 11 businesses or individuals identified by Locke as having been victimized by overzealous law enforcement or miscarriages of justice and given apologies and reparations in May.
Brown also specifically asked for "all memoranda from the Commerce Department Office of Assistant General Counsel for Administration Barbara Frederick (or staff) regarding the possibility of discipline for current or former leadership at the NOAA Office of General Counsel for Enforcement Litigation."
In his letter, Brown expressed anger at what he perceived as NOAA's decision to flout previous requests for documents in preparation of a Senate subcommittee hearing into NOAA practices. And the senator asserted that the attitude is that of an agency that considers itself "above congressional oversight."
It was Brown's idea to bring a Senate subcommittee to Boston for a June hearing on NOAA spending and law enforcement abuses. The Faneuil Hall hearing came after findings by both the Commerce Department inspector general and a special judicial master assigned by Locke detailed cases of potentially reversible miscarriages of justice."
Brown's letter to Schwaab probed substantively for the answer to a question he asked that came to define the Faneuil Hall hearing: "What does it take to get fired at NOAA?" Brown asked.
Brown quoted from the decision memo released by Locke in May when he apologized to 11 businesses and distributed nearly $700,000 in reparations based on the report of Special Master Charles B. Swartwood III.
Locke found a "systemic failing," yet that finding warranted no punishment to any NOAA personnel although Dale J. Jones Jr., the director of law enforcement, and the entire Northeast Office of agents and ligitators, based in Gloucester. Jones has been reassigned, while the key Gloucester agents have been reassigned or allowed to retire.
"At bottom," Locke wrote, "these problems were not the product of individual bad acts, but rather the result of conduct enabled and even encouraged by the management and enforcement culture in place at the time."
"In order to better understand Secretary Locke's decision," Brown wrote, "I am requesting that you provide me with all documents related to that legal review," Brown wrote.
He also expressed frustration at NOAA's refusal to provide documents sought as early as May 27 in preparation of the subcommittee hearing.
"Today is July 29, and I have not received the missing documents or the answers necessary to complete the hearing record...," Brown wrote. "While NOAA's initial unwillingness to provide certain documents was an unfortunate situation with a number of plausible explanations, I must now consider the logical conclusion that your agency feels itself to be above congressional oversight."
Brown added that such "behavior is disrespectful to the American people, Congress and the Massachusetts fishermen who have suffered because of NOAA's mismanagement of the fisheries.
"It is clear that NOAA has thus far failed to honor President Obama's stated commitment to transparency," he added.
The Brown letter also contains a refutation of what apparently was NOAA's argument that congressional requests for information are covered by the U.S. Freedom of Information Act.
"Obviously," wrote Brown, an attorney, "in their private capacity, members of Congress have the same rights under FOIA to obtain government information enjoyed by 'any person.'... But as the legislative history of FOIA makes clear, 'the Congress has the additional rights of access to all government information which it deems necessary to carry out its functions."
Brown is the ranking Republican on the Senate Subcommittee of the Homeland Security and Governmental Affairs Committee that came to Boston's Faneuil Hall on June 20.
Sen. Tom Carper, a Delaware Democrat, and chairman of the subcommittee, who came to Boston for the hearing, did not respond to questions about Brown's letter, and Schwaab, through his spokeswoman Monica Allen, also declined to answer questions posed the Times regarding Brown's letter.
"Eric Schwaab will respond directly to the senator's letter," Allen said in an email.
Locke was confirmed last week by the Senate to be the new ambassador to China.
California utility executive John Bryson, has been nominated to succeed Locke at Commerce but has yet to be confirmed.
Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.
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