MARAD FOIA Request #2: MLAA Seeks All Documents Related to USMMA’s Referral Of Shipboard Sexual Assault Allegations to American President Lines for “Administrative Handling.”
16 April 2021
T. Mitchell Hudson, Jr.
FOIA Officer
U.S. Department of Transportation
Maritime Administration
Second Floor, West Building
1200 New Jersey Av., SE, MAR-221
Washington DC 20590
Re: Freedom of Information Act Request #2 (American President Lines)
Mr. Hudson:
This letter constitutes a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and is submitted to the U.S. Maritime Administration (“MARAD”) by Maritime Legal Aid & Advocacy, Ltd. (“MLAA”). MLAA is a non-profit legal advocacy organization working to end shipboard sexual misconduct in the U.S. maritime industry, including shipboard sexual misconduct directed at USMMA cadet-midshipmen participating in the United States Merchant Marine Academy’s “Sea Year” program.
Background
In the “2017-2018 USMMA SASH Report” published by the U.S. Merchant Marine Academy, MARAD listed a report of sexual assault made by a USMMA cadet-midshipmen at Table 6, Row 7 of the report. According to the Report, the “victim” was a midshipman, and the “subject” was a Crew Member. The Investigation and Result columns of the report of sexual assault state:
"Unrestricted – occurred at sea; referred to U.S. Coast Guard for investigation. No criminal prosecution; referred to shipping company for administrative handling."
On September 23, 2020 MLAA made an official request to the DOT Inspector General (Howard “Skip” Elliot) for an investigation into the handling of this sexual assault allegation by a USMMA student against a crew member of a commercial vessel during the Academy’s “Sea Year” program.
MLLA stated in its report to the DOT OIG that “criminal prosecution” was not the only option available to the United States Coast Guard (“USCG”) for investigating and punishing mariners accused of sexual harassment, sexual assault, and other kinds of sexual misconduct committed aboard U.S. flag ships at sea.
MLAA noted in its report to the DOT OIG that the USCG also has the “Suspension & Revocation” (“S&R”) process available to investigate and punish mariners—a process that is used by the USCG hundreds of times every year to investigate and punish a wide variety of misconduct by credentialed mariners.
Through the FOIA, MLAA has recently obtained a large number of documents related to the USCG’s enforcement (or non-enforcement) of our nation’s laws against shipboard sexual misconduct committed by USCG credentialed mariners. Through those documents, which included the U.S. Coast Guard Investigative Service investigative report related to these incidents, MLAA has determined that the incidents referred to in the 2017-2018 SASH report most likely occurred aboard the M/V APL Korea, operated by American President Lines.
MLAA has also determined through documents obtained from the USCG via the FOIA that the USCG never initiated a S&R investigation of this USCG credentialed mariner accused of sexual harassment and sexual assault by the USMMA student. The USCG office responsible for opening such S&R investigations is the Office of Investigations & Casualty Analysis (CG-INV), led by Captain Jason Neubauer, USCG.
Through this FOIA request, MLAA seeks to learn what steps were taken by the shipping company who employed the accused mariner in question after receiving a referral for “Administrative Handling” from the U.S. Merchant Marine Academy. MLAA also seeks to learn more about how these sexual harassment and sexual assault allegations were conveyed to the shipping company, and about the expectations and actions of the USMMA following its referral of the allegations to the shipping company.
What is most deeply troubling about this situation is that the mariner accused of sexually harassing and sexually assaulting this USMMA student may have evaded a proper investigation and may have gone completely unpunished for shipboard sexual misconduct directed at a USMMA cadet-midshipman. If this is the case, and this mariner is still working in the industry, it is inevitable that the USMMA will continue to send cadets out to vessels where this man or woman is working, thereby putting more students in danger of future sexual harassment and sexual assault.
Documents and Data Requested:
Consistent with our organization’s mission, and pursuant to 5 U.S.C. § 552, MLAA respectfully requests the following information from MARAD:
All records, documents, or communications exchanged between DOT, MARAD or USMMA employees with representatives of the “shipping company” referred to in Table 6, Row 7 of the 2017-2018 USMMA SASH Report regarding the victim’s allegations of shipboard sexual misconduct, including but not limited to the documents and communications that constitute the “Referral” made to the shipping company regarding these incidents by the USMMA. This includes any communications between employees of the USMMA Office of Shipboard Training and the shipping company regarding these incidents. “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 MARAD’s or the DOT’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All records, documents, or communications received by DOT, MARAD or USMMA employees regarding these incidents following the “Referral,” including but not limited to records, documents or communications that explain how the shipping company conducted its “Administrative Handling” of the referral from the USMMA, and records, documents or communications that detail any punishment or non-punishment received by the accused mariner. “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 MARAD’s or the DOT’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All records, documents, or communications exchanged between the USMMA’s Sexual Assault Response Coordinator (SARC) regarding these incidents and a) other employees of DOT, MARAD, or the USMMA, including but not limited to attorneys and employees of the Office of Shipboard Training, b) the USCG, including but not limited to the Coast Guard Investigative Service, c) any other person or entity. This includes the referral to the CGIS made by the SARC. “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 MARAD’s or the DOT’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All records, documents, or communications related to the incidents described in Table 6, Row 7 of the 2017-2018 USMMA SASH Report in the possession of the DOT, MARAD or USMMA. “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 MARAD’s or the DOT’s custody or control, whether they exist in “working,” investigative, retired, electronic mail, or other files currently or at any other time.
All records, documents, or communications that include the name of the shipping company and the name of the accused mariner, with the name of the shipping company and the name of the accused mariner un-redacted.
Request for Expedited Processing
Expedited processing is justified because the request:
Is made by an organization “primarily engaged in disseminating information,” which MLAA accomplishes through its large mailing list of newsletter subscribers, through its Instagram page located at instagram.com/maritimelegalaid, and through our widely read blog located at https://www.maritimelegalaid.com/blog (See 5 U.S.C. § 552(a)(6)(E)(v)(II) (2012); Al-Fayed v. CIA, 254 F. 3d 306 (D.C. Cir. 2001); and
Covers information about which there is an “urgency to inform the public about an actual or alleged federal government activity” (See American Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.C. Cir. 2004).
There is an “urgency to inform the public” about these matters, because the documents deal with the urgent issue of allegations or incidents of Sexual Assault and Sexual Harassment directed at U.S. Merchant Marine Academy cadet-midshipmen aboard commercial or military vessels during “Sea Year.” If the USCG is not properly investigating reports of sexual misconduct made by USMMA students, USMMA students are at a greatly heightened risk of sexual harassment and assault aboard the vessels they are assigned to during “Sea Year.” Additionally, if private shipping companies are not punishing mariners who sexually harass and sexually assault USMMA students aboard their vessels through their “Administrative Handling” processes, USMMA students are at a greatly heightened risk of sexual harassment and assault aboard the vessels they are assigned to during “Sea Year.”
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 USMMA students during Sea Year. If the allegations against the accused mariner listed in Table 6, Row 7 of the USMMA’s 2017-2018 SASH report are true, and if the mariner in question avoided all punishment for his or her actions, any delay in processing this request could literally result in other USMMA students being sexually harassed or sexually assaulted by this mariner during Sea Year. The information MLAA is seeking in this request has the potential to immediately prevent actual sexual assaults at sea from occurring. This is an incredibly urgent and compelling need.
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 our website at www.maritimelegalaid.com for dozens of examples of news articles we have created by taking raw materials from various public documents and converting those raw materials into completely distinct works that we distributed to our audience and to the broader public.
You may also visit the following hyperlink for a specific example of a news article which required our news organization to take raw materials from a Government Accountability Office report, which we then used 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 15,000 unique readers to date:
https://www.maritimelegalaid.com/blog/an-epic-sexual-assault-scandal-30-years-in-the-making-is-coming-for-the-us-coast-guard-and-this-foia-request-is-only-the-beginning
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, Open Government Project