Judge keeps lid on NOAA e-mails

An administrative law judge has shot down the Gloucester Seafood Display Auction's request to make public internal federal fisheries law enforcement documents that purportedly show government "misconduct" in building federal agents' case against the region's leading fish broker.

But following advice offered by Judge Walter J. Brudzinski in an earlier ruling, the auction has taken an alternative route to the disputed documents. Paul Muniz, the auction's attorney, has filed a Freedom of Information request for copies of the same documents the judge has refused to allow released to the public.

Muniz' motion, which Brudzinski rejected Aug. 31, argued that refusing to allow the documents to be made public amounted to a "classic example of prior restraint" or a "gag order."

To support his motion, Muniz cited the so-called Pentagon Papers case, in which the Nixon administration in 1971 attempted to block The New York Times and Washington Post from publishing leaked classified documents illuminating Vietnam War strategies. The Supreme Court barred the government from halting publication.

The documents Muniz seeks authority to release include "all correspondence, including e-mails" by and between Deirdre Casey, the government lawyer of record in the third and largest case against the auction that was settled without admission of liability, and the cadre of law enforcement agents in Gloucester and their representatives.

They formed the team that, until the March settlement of a three-case tangle, had worked — off and mostly on — for a decade trying unsuccessfully to prove the business owned by the Ciulla family was breaking the Magnuson-Stevens Act by operating something of a black market in cod and other groundfish from the Gulf of Maine.

The auction's decision to fight the government sparked a cause celebre that led the congressional delegation to pressure Jane Lubchenco, head of the National Oceanic and Atmospheric Administration, to ask the Commerce Department inspector general to undertake a national investigation of law enforcement.

IG's Todd Zinser's reports on NOAA enforcement tactics have described an agency without controls, the abuse of a fund containing tens of millions in fines, and dependence on that fund to finance nearly all non-salaried legal expenses.

Zinser's investigators are now completing a single-focus study of the government's effort to discredit and punish the auction, with the report expected within weeks.

According to redacted documents in the government's failed effort earlier this year to keep the material from the auction itself as it prepared its defense, making a case against the auction was the primary focus of the agents.

"Between late 2006 and 2008," two agents whose names were redacted "devoted approximately 75 percent of their time to this investigation," reads the auction's written opposition to the government's effort to withhold the hundreds, if not thousands, of e-mails and internal communiques.

The document was among those released to the Times by U.S. Coast Guard Administrative Law Court, which contracts to hear NOAA enforcement and prosecution cases.

A key figure in the group named in the FOIA request, along with Casey, is Andrew Cohen, the agent in charge of NOAA's Northeast enforcement until two weeks ago when he was reassigned to report from Gloucester to the acting director of law enforcement in Silver Spring, Md., and work on international illegal fishing.

Cohen and the team of eight agents named in the FOIA request mounted an alleged illegal entry to the auction in the fall of 2006 and weeks later an armed raid to confiscate documents, according to Gloucester police reports. These were used in building a 59-count Notice of Violation and Assessment, which was issued in February 2009 and settled on terms favorable to the auction in March.

The auction was not required to acknowledge any violations but agreed to pay an $85,000 fine.

Since Charles L. Green, the acting assistant general counsel for enforcement and litigation, received the FOIA request on Aug. 25, the 20 work days allowed the government to produce the documents or give reasons why not will be reached today.

Muniz said he had not been notified what the government intended to do.

Green did not respond to an e-mail or return calls.

The IG's initial report found a poorly managed law enforcement organization that allowed, if not encouraged, an abuse of authority by agents, which validated complaints from fishing communities for many years.

In Cohen and Casey's jurisdiction, the IG found levied fines as much as 5 times "or more" higher than those meted out in other parts of the country.

Zinser's testimony at congressional oversight hearings in March — including one at Gloucester City Hall — helped convince NOAA to put Dale J. Jones Jr., the longtime director of law enforcement on administrative leave.

In denying the auction motion to lift his July 8 gag order, Brudzinski simply restated his earlier reasoning that he doubted he had the authority to put into the public domain NOAA investigative documents.

He had ordered NOAA to produce "several hundred" documents for use at trial, but with the legal conflicts with the auction resolved, he suggested the auction use the F.O.I.A process to get what Muniz argued was owed to his client.

In the earlier order barring release of the internal e-mails and notes, Brudzinski noted the auction sought the documents to "repair harm caused to the (business') reputation by false statements made by the agency...."

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.

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