7/29/2020: Amended FOIA Request
M.L.A.A.
July 29, 2020
VIA E-MAIL to “EFOIA@uscg.mil”
Commandant (CG-611)
Attn: FOIA Officer
U.S. Coast Guard Stop 7710
2703 Martin Luther King Jr. Ave. SE
Washington D.C. 20593-7710
Re: Freedom of Information Act Request
Dear FOIA Coordinator:
This letter constitutes a request under the Freedom of Information Act (“FOIA”) and is submitted on behalf of Maritime Legal Aid & Advocacy (“MLAA”) to the United States Coast Guard (“USCG”). MLAA is a non-profit legal advocacy organization working to change the culture of the U.S. maritime industry afloat by forcing the USCG to take seriously the issue of sexual harassment and sexual assault at sea aboard U.S. commercial vessels.
Pursuant to 46 U.S. Code § 10104, ship’s masters and other individuals in charge of documented vessels are required to report complaints of sexual offenses prohibited under 18 U.S. Code Chapter 109A to the Secretary of Homeland Security, or to the Secretary of the department in which the USCG is operating. MLAA seeks documents, information, and data regarding the reporting of these complaints of sexual offenses to the USCG.
Background
46 U.S. Code § 10104 “Requirement to report sexual offenses” reads as follows:
(a) A master or other individual in charge of a documented vessel shall report to the Secretary a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code.
(b) A master or other individual in charge of a documented vessel who knowingly fails to report in compliance with this section is liable to the United States Government for a civil penalty of not more than $5,000.
The threshold for sexual contact that must be reported to the USCG comes from Chapter 109A of title 18, also known as the “Sexual Abuse Act.” Per 18 U.S. Code § 2246, “sexual contact” is defined as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
The clear reading of these statutes is this: if a crewmember aboard a documented vessel reports that he or she was the victim of “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,” or if a crewmember is the victim of an even more serious sexual assault, the master or other individual in charge of a documented vessel must report the victim’s allegations to the USCG.
It is clear that 46 U.S. Code § 10104 does not allow the master or other individual in charge of a documented vessel to make his or her own judgment as to the validity of the complaint. If the master receives a complaint of sexual offenses, he or she is required by law to report the complaint to the USCG.
The reporting requirement of 46 U.S. Code § 10104 were implemented in response to the deeply troubling and horrifying findings of a Government Accountability Office (GAO) investigation into the prevalence of sexual assault against women in the U.S. merchant marine (GAO/RCED-89-59). The GAO discovered numerous rapes and other serious sexual assaults committed against female mariners aboard ships, and found that none of the rapes or sexual assaults were ever reported to the USCG, or to any law enforcement agency by the vessels’ captains or the shipping companies who owned the vessels.
The GAO Report concluded:
In order to (1) promote greater awareness and understanding of the Sexual Abuse Act within the U.S. maritime industry, (2) obtain more complete information on and understanding of the extent of sexual assaults and related offenses in the industry, and (3) foster a climate conducive both to deterring sexual offenses and reporting their occurrence to appropriate authorities, we recommend that the Secretary of Transportation direct the Commandant of the Coast Guard to require that masters of vessels or other responsible officials promptly report to the Coast Guard any complaint of a criminal sexual offense covered by the Sexual Abuse Act as soon as possible following its occurrence or report of its occurrence.
Following the publication of the GAO report on sexual assault in the U.S. Merchant Marine and subsequent lobbying by The Women’s Maritime Association, among others, Congress passed a law making ( 46 U.S. Code § 10104 ) the law of the sea. The law required the master or other individual in charge of a documented vessel to promptly report to the USCG any complaint of a criminal sexual offense covered by the Sexual Abuse Act. However, Congress made the penalty for not reporting a sexual assault only a $5,000 civil fine.
This law went into effect in 1989—approximately 31 years ago.
According to our research, it appears that Congress implemented 46 U.S. Code § 10104 in response to the highly critical GAO Report, but then made the penalty for not reporting minimal, and the USCG subsequently never publicized the new law, never adequately informed the public of the law, and never enforced the law.
Despite extensive research, MLAA has been unable to find a single example of a report of sexual offenses having been submitted to the USCG pursuant to 46 U.S. Code § 10104 since the law went into effect in 1989.
Despite extensive research, MLAA has been unable to find a single example of a master or other individual in charge of a documented vessel being punished by the USCG for knowingly failing to report in compliance with 46 U.S. Code § 10104 since the law went into effect in 1989.
According to the USCG’s own data, there are more than 200,000 USCG credentialed mariners working in the U.S. maritime industry. We find it difficult to believe that, in the 31 years since 46 U.S. Code § 10104 became the law of the sea, mariners aboard documented vessels have not reported a great number sexual offenses prohibited by the Sexual Abuse Act to the masters or other individuals in charge of documented vessels.
If the USCG is not receiving reports of sexual offenses, there is likely widespread lawbreaking and non-reporting of sexual assaults in the U.S. maritime industry. Therefore we are seeking more information from the USCG on this issue.
Consistent with our organization’s mission, and pursuant to the Freedom of Information Act, 5 U.S.C. § 552, MLAA respectfully requests the following information from the USCG:
Documents and Data Requested:
All reports of sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 since the law was added to the Code of Federal Regulations in 1989, with any personally identifiable information about the victim or the accused omitted from the report, only if required by law.
All Documents related to an investigation or punishment of any person or corporation for a failure to notify the USCG of a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code, pursuant to 46 U.S. Code § 10104 since the law was added to the Code of Federal Regulations in 1989. “All documents” includes, but is not limited to, reports, correspondence, agreements, minutes, memoranda, e-mails, databases, and notes. This request includes all documents that have ever been within USCG’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All Documents related to any investigation of sexual misconduct of any kind initiated against any USCG credentialed mariner, including investigation reports and related documents, by the USCG or the CGIS since 46 U.S. Code § 10104 was added to the Code of Federal Regulations in 1989, with any personally identifiable information about the victim or the accused omitted from the report, only if required by law. “All documents” includes, but is not limited to, reports, correspondence, agreements, minutes, memoranda, e-mails, databases, and notes. This request includes all documents that have ever been within USCG’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
Request for Expedited Processing
Expedited processing is justified because the request: 1) is made by an organization “primarily engaged in disseminating information,” which MLAA accomplishes through its large mailing list of newsletter subscribers and via its widely read blog located at https://www.maritimelegalaid.com/blog; and 2) covers information about which there is an “urgency to inform the public about an actual or alleged federal government activity.” MLAA is an organization “primarily engaged in disseminating information.”
There is an “urgency to inform the public” about whether or not masters or other individuals in charge of documented vessels are reporting complaints of sexual offenses prohibited under chapter 109A of title 18, United States Code to the USCG in accordance with federal law. If the USCG is not receiving these reports, USCG credentialed mariners at sea aboard U.S. documented vessels are at a greatly heightened risk of sexual assault aboard their vessels, as the GAO concluded in their report discussed in this request.
There is a “compelling need” for this information, because a failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or individuals. The information MLAA and our partner organizations are seeking has the potential to immediately prevent actual sexual assaults at sea from occurring. This is an incredibly urgent need. Any delay in processing this request could literally result in mariners being sexually assaulted at sea.
Request for “News Media” Fee Status and Fee Waiver
MLAA is a “representative of the news media” for fee waiver purposes. Based on our status as a “news media” requester, we are entitled to receive the requested records with only duplication fees assessed. Further, because disclosure of this information will “contribute significantly to public understanding of the operations or activities of government,” any duplication fees should be waived. Under FOIA, “Representative of the News Media” is defined as “[a]ny person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.”
Please visit the following hyperlink for an example of a news article which required MLAA to take raw materials from a GAO report and then use the raw materials to create a completely distinct work that we distributed to a niche audience of people in the U.S. maritime industry resulting in more than 6,000 unique readers in only 2 weeks, with an average visitor time of more than 7 minutes on the article:
There is no doubt that the information we are seeking will contribute significantly to public understanding of the USCG’s approach to sexual assault aboard documented vessels.
The FOIA’s fee waiver amendments were enacted to allow further disclosure to nonprofit, public interest organizations, since the FOIA as a whole is to be construed broadly in favor of disclosure. See, e.g., Dep't of Air Force v. Rose, 425 U.S. 352, 366 (1976). Further, the disclosure of this information is of no commercial interest to MLAA. Under the FOIA, a commercial interest is one that furthers a commercial, trade, or profit interest, as those terms are commonly understood. See, e.g., The Freedom of Information Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10012, 10017–18 (Mar. 27, 1987). None of those interests are present in this request, as MLAA works to achieve its goals through media outreach and public education.
Conclusion
Thank you for your consideration of this request. As provided for by federal regulation, I will anticipate your determination of our request for expedited processing within 10 business days. For questions regarding this request I can be contacted via email at maritimelegalaid@gmail.com.
Respectfully Submitted,
J. Ryan Melogy
MLAA Chief Legal Officer
Coordinator, MLAA Open Government Project