Intrepid reporter Kathryn Watson at The Daily Caller News Foundation just wanted to get copies of administrative subpoenas issued by the Federal Trade Commission. The FTC replied to her Freedom of Information Act request with obstruction.
Nobody knows how many administrative subpoenas are issued by government agencies. Administrative subpoenas are warrants for records such as private “papers” and emails. They are issued unilaterally by government bureaucrats, and are impossible to reconcile with the Fourth Amendment’s requirements of “oath and affirmation” of “probable cause” before neutral judges.
Watson and The Daily Caller News Foundation have been doing the work that Congress has failed to do in its oversight functions, and have issued multiple FOIA requests to various government agencies to get a sense of how many of these subpoenas are issued.
Watson recently wrote about the FTC’s response to her FOIA request. The FTC, under President Obama’s mockable “most transparent” administration in American history, “claims in a Nov. 24 letter that at least some of those records are exempt ‘because disclosure of that material could reasonably be expected to interfere with the conduct of the commission’s law enforcement activities.’”
The FTC’s letter to Watson expressing refusal to obey FOIA corruptly relies on a 1978 case, NLRB v. Robbins Tire and Rubber Co., which held that FOIA exempts statements of witnesses who would testify in disputes between labor organizations and businesses. The basis for this exemption is fear that disclosure of witnesses would lead to their being intimidated against testifying.
It is hard to believe that any witness statements would be found in administrative subpoenas. Even if they were, they could be redacted. Reporting by the press, it appears, is really what the FTC believes as interfering with their law enforcement activities.
As I’ve written, administrative subpoenas are relics of the Star Chamber, the notoriously secretive and abusive King’s council that the English despised and eventually outlawed in 1641. And, unilaterally issued warrants were considered unlawful even before the Fourth Amendment was written.
Administrative subpoenas are frequently used as bureaucratic weapons to punish or intimidate businesses and others. As reported at National Law Journal, one company “put out of business under the weight of a Federal Trade Commission data-privacy investigation is now suing three agency attorneys for allegedly bringing a case based on ‘fictional’ evidence.”
The FTC has gone full “Star Chamber” in its secrecy and use of administrative subpoenas. It’s time for Congress to act and stop this soft police state among federal agencies. Bureaucrats need to comply with the Fourth Amendment. Warrants require probable cause and oath and affirmation before neutral judges.