Monday May 27, 2019

Commission Votes Down Baiocco Move to Bring in Outsider on 6(b) Matter

CPSC members May 21 voted 2-3 against a motion by Commissioner Dana Baiocco to bring in a detailee from FBI, DOJ or similar agency to investigate the large disclosure of information outside 6(b) procedures. Commissioner Peter Feldman joined her in voting for the idea. Her move – during the decisional meeting on the midyear update – led to sometimes testy back-and-forth, especially between her and Acting Chairman Ann Marie Buerkle.

Other PSL stories related to this matter:

Discipline Not Out of the Question in 6(b) Situation; CR Got Info on at least 10% of Affected Firms

Disciplinary action is not off the table in CPSC's internal investigation of information released outside 6(b) procedures, but that possibility is tempered with the phrase, "if warranted."

CPSC Details In-Progress Mitigation of Disclosures; 11K Firms Affected

CPSC changed its information-release procedures in early April in reaction to its problematic disclosures to 29 recipients since 2017 and affecting approximately 11,000 companies.

Disclosures Outside 6(b) Occurred for Year-Plus; CR Rebuffs Return Requests

CPSC's recurring disclosures of companies' information outside 6(b) procedures happened for over a year, and at least one recipient has rejected the agency's request to return or certify destruction of the materials.

CR Gives Insight into Link between 6(b) and Sleeper Developments

Consumer Reports (CR) April 18 told PSL it saw a "duty" to consumers to publicize incidents CPSC provided outside the 6(b) process, and it confirmed the connection to the Fisher-Price Rock 'n' Play matter.

Clearinghouse Not Meant to Stay under FoIA Office Control

CPSC Acting Chairman Ann Marie Buerkle May 21 clarified the intended temporary nature of placing review of Information Clearinghouse releases under the FoIA system.

CPSC Starts Redacting Outsiders' Contact Information

CPSC is redacting contact details of non-agency people from at least meeting logs.

Anti-6(b) Side Shows It Sees Disclosure Situation Differently

The argument over the meaning of CPSC's disclosure of information outside the 6(b) process is shaping up.

Respond Now to Notices of Unauthorized Disclosures, CPSC Urges Companies

Companies need to confirm to CPSC immediately that they received letters about unauthorized release of their information.

The move also caused a recess lasting almost an hour and a half as commissioners looked at the matter out of public view. The proposal would have brought in a commission-approved person to investigate the releases, including the ongoing responses and possible future actions.

Commissioners would have gotten regular updates, and Baiocco allowed for potential public sessions. She wanted the investigator to let the commission know of any relevant legal interpretations by the general counsel (GC) office and to ensure that the panel had final say on such matters.

The person would have had "full cooperation" of agency staff. A report would have addressed not just internal handling of the situation but also dealing with affected parties.

As for why, Baiocco voiced frustration with her ability to stay informed about the situation, even suggesting that her access to staff has been controlled. She also was critical of the GC, including asserting that she got wrong information.

On the other hand, to suggestions that she was repudiating CPSC's inspector general (IG) office, she clarified her trust and confidence. It is conducting an investigation (PSL, 5/20/19).

Existence of that review prompted some of the pushback with concern raised by Commissioner Robert Adler about interfering with the IG work. Buerkle echoed his worry.

Adler offered compromise amendments, but they were voted down 2-3. Commissioner Elliot Kaye joined Baiocco and Feldman in rejecting them. Adler's four changes would have delayed the outsider investigation until the IG's was done as well as required the person to submit a work plan, to certify understanding of 6(b), and to get permission to task agency staff with work lasting longer than two hours.

Some of the tenser exchanges included Baiocco suggesting that there was more to the situation than what Buerkle directed the IG to review. At another point, Buerkle said that she would welcome an outside investigation, clarifying that her hesitancy involved interfering with the IG's work.

Adler rejected the idea of a scandal, calling the matter an "innocent mistake" by staffers who "owned up to" it.

Despite voting against the idea, Kaye seemed open to the idea as a general matter, including suggesting the person could have looked at the decision to put the Information Clearinghouse under FoIA control (see related story).