Archives for June 2014

Dan Epstein on the Peter Schiff Show 6/25/2014

Cause of Action’s Dan Epstein talks with Peter Schiff about the IRS targeting scandal.


FOIA Follies: Here’s What Qualifies for a (b)(5) Redaction at the IRS

In October 2012, Cause of Action submitted a FOIA request to the Internal Revenue Service (IRS) seeking records related to any requests from the President for individual or business tax returns. In response to our request, the IRS released 790 pages of records but redacted a substantial amount of information pursuant to Exemption 5 of the FOIA.  Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Nate Jones of the National Security Archive recently called it the “withhold it because you want to” exemption. It is often triggered to protect the “deliberative process” among government employees, but DOJ guidance from 2009 notes that, “records covered by the deliberative process privilege in particular have significant release potential.”

Cause of Action decided to challenge the IRS’s application of Exemption 5. We filed and an appeal that the IRS denied, and then filed a lawsuit on June 19, 2013.  In its response to our lawsuit, the IRS “reconsidered some of the redactions made to the 790 pages.” The resulting changes show how broadly IRS applied Exemption 5 to redact parts of certain emails. Here’s a sample of what the IRS redacted pursuant to the exemption (see the documents here):

“Bernice and Gary, let’s make sure that, going forward, any FOIA requests that could even remotely be considered politically sensitive are elevated for discussion between us and that the response is given an extra layer of review. thanks”

Original Release

Redact 1


unredact 1

“They are concerned about whether the response could have been done better.”

Original Release

 redact 2


unredact 2

“Carmen’s email about what the IRS statement could be.”

Original Release

 redact 3


unredact 3

“I also coordinated with Carmen and Dave at DOJ so the IRS wouldn’t say anything to harm the IRS’ position in the law suit.”

Original Release

redact 4


unredact 4

“Media Relations is attempting to refute allegations we are improperly hiding behind privacy laws.”

Original Release

redact 5


unredact 5

“However, now that we’ve got the litigation threat, we have to determine if we were okay not to disclose the mere fact of WHETHER the president made any such requests at all, thereby disclosing the fact that either the documents did, or did not exist.”

Original Release

redact 6


unredact 6

President Obama’s 2009 memo on FOIA declared, “In the face of doubt, openness prevails.” Attorney General Holder wrote, “[A]n agency should not withhold information simply because it may do so legally.” Despite these pledges, agencies are still choosing to hide information from the public. As these emails show, the IRS is abusing Exemption 5 to “withhold it because they want to.” Promises of transparency have not created more openness in government. Significant reform is needed to limit the abuse of FOIA exemptions so that citizens, journalists, and watchdog groups can continue to fight for accountability in the government.

Cause of Action Signs Coalition Letters in Support of FOIA Reform

Senators Leahy and Cornyn recently introduced the FOIA Improvement Act of 2014.  This legislation makes several pro-requester improvements.

The legislation:

  • Codifies the presumption of openness
  • Puts limits on the use of Exemption 5
  • Improves OGIS’s ability to report to Congress and the President
  • Disallows agencies from using the unusual circumstances excuse to avoid waiving fees.  If the agency fails to comply within the extended 10 days, it may not assess search fees.
  • And other changes

Cause of Action signed two coalition letters with fifty organizations (organized by in support of FOIA Reform. OpenTheGovernment.Org’s press release can be found here.

FOIA Improvement Act Sign-On Letter 2014-06-19 by Cause of Action

Senate FOIA Bill Support Press Release by Cause of Action

Video: Dan Epstein Talks IRS Targeting on One America News Network

FOIA Request to IRS regarding IRS Targeting and Records Management

Yesterday Cause of Action, along with Tea Party Patriots, sent a Freedom of Information Act request to the IRS seeking to discover who was responsible for the targeting of conservative groups and to determine how the IRS maintains records in (or not in) accordance with federal law.

On January 26, 2009, in one of President Obama’s first acts in office, the President issued an executive order to allow both incumbent and former Presidents to claim executive privilege on certain records they sought to protect.  Three years later, on August 24, 2012, the White House issued a Directive that “require[d] that to the fullest extent possible, agencies eliminate paper and use electronic recordkeeping.  It is applicable to all executive agencies and to all records, without regard to security classification or any other restriction.”  It is entirely possible that the IRS followed this Directive in a manner that violated the Federal Records Act.

“Because the White House may consult the Archivist of the United States and dispose of certain records, the White House’s inability to locate any emails from Lois Lerner during the time frame of her ‘lost’ emails doesn’t prove that no emails existed at one time.  The IRS follows different records preservation laws than the President. That is why access to these records are critical to determining who was responsible for targeting conservative groups,” said Cause of Action’s Executive Director Dan Epstein. “Accountability is unfortunately an uphill climb with this agency, but it is necessary to determine who, both within and without the IRS, is responsible for the political targeting that occurred against certain nonprofit groups. That is why we are seeking information on what and how the IRS retains in terms of data, emails, investigations, and protocol.”

06-23-2014 IRS FOIA Request Re Missing Lerner Emails by Cause of Action

Computerworld: Congressman calls for halt to FTC breach probe amid claims of ‘corporate blackmail’

Read the full story: Computerworld

Government watchdog Cause of Action, (CoA) which has taken up LabMD’s defense, welcomed the House Oversight Committee investigation demand for an investigation into its relationship with Tiversa.


“The House Oversight Committee’s investigation should send a message to federal agencies, the President and the courts that the arbitrary abuse of administrative power will not go unchecked,” Cause of Action’s executive director Dan Epstein said. “This is why it has investigated and litigated for LabMD to stop the FTC from arbitrarily expanding and abusing its power by victimizing an entrepreneur who did nothing wrong.”


The CoA contends that there is no evidence that the FTC has taken steps to independently authenticate Tiversa’s claims.

Cause of Action Appeals SEC Failure to Adequately Search for Records related to White House Equities

Cause of Action previously sent 20 FOIA requests to federal agencies regarding the White House’s review of FOIA and other document requests. Produced documents were included in our report released for Sunshine Week 2014. We sent FOIA appealsto USDA and GSA regarding improper redactions under attorney-client communications. This appeal concerns the Securities and Exchange Commission’s response to our FOIA request stating the agency found no responsive records.

May 6, 2014 FOIA Request to SEC

June 12, 2014 SEC Response Stating No Responsive Records

June 18, 2014 SEC FOIA Appeal Re WH Equities by CauseOfAction