Tag Archives: consensus

What’s Behind Some of the Redactions in my Boundary Waters FOIA Case?

I guess this is what winning looks like.

The b(5) FOIA redactions I contested back in November have all been released in full. I’ve added these unredacted documents to the collection of records from my Boundary Waters FOIA case on documentcloud.

There are no earthshaking revelations here. The emails sent from David Bernhardt’s iPhone turn out to have been sent from his official email account; I suspected the agency might have redacted them to cover his use of a personal account. The redacted paragraphs in the leasing renewal documents from 1987-2005 concern Forest Service consent (or “no objection”) to the lease renewals, with some stipulations about an unresolved reclamation issue. These were public records of past decisions that were treated as if they held closely-guarded secrets.

Then there is the unredacted version of the Twin Metals Talking Points put together by Gary Lawkowski, Counselor to Solicitor Daniel Jorjani and fellow Koch network alumnus. These Talking Points were to accompany the Jorjani M-Opinion, the legal memo that determined Chilean mining giant Antofagasta plc had a non-discretionary right to renewal of its leases near the Boundary Waters. I talked a little about this redaction in a 2020 FOIA webinar. If there is a showpiece among these unredacted documents, this is it:

It’s worth asking why any of this — the letters, the email address, the Talking Points — was redacted in the first place. In previous posts I characterized these assertions of privilege as heavy handed. Interior misused, or abused, Exemption 5 redactions. Some look like a hamfisted effort to protect political appointees, like the full redaction of Lawkowksi’s Talking Points.

Why were these redacted? The Talking Points position the Twin Metals project as a source of critical minerals, criticize the Obama administration, and argue that the Jorjani reversal is “a victory for the rule of law by affirming that the government means what it says when it enters into contracts.” That last claim may be hyperbolical, but hyperbole hardly merits a coverup, and the Talking Points were written for public consumption. Trump himself would repeat the criticism of the Obama administration when he spoke in Duluth. Arguments about regulatory certainty are common enough and would have gotten a friendly reception in the business press. And as we saw just last week, when President Biden issued an executive order and the Senate held a hearing on critical minerals, there is plenty of bipartisan support for onshoring critical minerals production.

So why the sensitivity around Lawkowski’s arguments? Maybe this is just a case of a FOIA reviewer applying Exemption 5 indiscriminately. But why not roll out these talking points, and try to build public consensus around them? I can only guess that it was some mixture of incompetence, or an inability to coordinate a coherent critical minerals strategy (remember infrastructure week?), and arrogance: a sense that they didn’t owe the public explanations.

There is a world in which this could have been a political win, had the administration taken the time to build public support and rally Congressional allies around mining for the energy transition, or a new energy mix, and — this is the kicker — had it found a more legitimate route forward for the lease renewals. Instead, at every turn, they schemed behind closed doors, and they failed.

Is Every Conversation Illegal? A Follow-Up on Shareholder Engagement

In a comment on Jackson and Gilshan’s “Call on U.S. Independent Directors to Develop Shareholder Engagement Strategies” — which I discussed in a previous post — Robert A.G. Monks sounds pessimistic.

If I read him correctly, he doesn’t think we’ll ever manage to create “an open and trusting format” of the kind Jackson and Gilshan recommend, where shareholders may “discuss the full range of company business with a director.” Monks says that what’s “missing” from the American scene is precisely a “framework for effective shareholder dialogue,” but he thinks that will remain “only aspirational on our side of the Atlantic.” Why? because there are legal obstacles that make companies skittish: “Indeed, counsel for the board of a NYSE listed company has explained to me – patiently – why it would be illegal for an individual board member to meet with me to discuss company business.”

A longtime shareholder activist who has written about a range of corporate governance issues, Monks wields a great deal of authority on these topics, so I defer to his experience and hope to benefit from his insights. I can appreciate, too, how frustrating it must be to be told that the law — and what he calls “orthodoxy” — prevent discussion. But I hope he’s not recommending we resign ourselves to the status quo.

Understanding, respecting and obeying the law is one thing, hiding behind it another. It doesn’t sound as if the counsel at the NYSE-listed company was hiding or trying to put Monks off, but you can also easily imagine that companies might take refuge in the assertion that the law and orthodoxy just won’t allow them to meet with or engage shareholders.

As I said in my reply to Monks’s comment, it might be illegal for an individual shareholder to sit down and whisper about company business with an individual director, but that isn’t the only possible scenario. There are still good faith efforts to be made, on both sides. A circuit of small gatherings, thoughtfully planned and dedicated to a particular theme, could offer one model. Shareholder proxy resolutions offer another opportunity for conversation — among directors, shareholders and stakeholders — before the resolutions are submitted or come to a vote.

In many cases, the shared experience of the conversation will be just as important as, if not more important than the content.

So the point here is not to multiply examples, but to suggest (as Monks himself suggests at the end of his comment) that there is good work to do on this front. The challenge, as I see it, is to create meaningful opportunities for face to face conversation and communication — for ongoing, purposeful “engagement”; the basic aim is to defuse antagonism, allow people to make connections, or simply ensure that everybody is in possession of relevant facts.

That there are legal obstacles here is no reason to give up. To my way of thinking, it’s all the more reason to develop a framework that U.S. owners and directors can use.