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Archives for 2016

06/2/2016

#TBT – Prescient CoA Institute Report Anticipated Clinton Email Scandal

In July 2012, CoA Institute published “Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?” in the Federalist Society legal journal Engage.[1]  More than two years before Secretary Clinton’s decision to use a personal email address and private server to conduct official government business first came to light, CoA Institute warned:

“The practical reality is that … federal agency employees have and will continue to conduct agency business using personal e-mail accounts and personal communications devices.  Until Congress or the courts definitively clarify whether these work-related communications are subject to FOIA’s disclosure provisions, a dangerous loophole enabling unscrupulous agency employees to intentionally evade the light of public scrutiny may exist.”

CoA Institute noted the practical and technical problems associated with obtaining “agency-business-related communications that are never captured on government computers or servers,” which are nonetheless agency records subject to the Freedom of Information Act (FOIA)—a federal transparency statute.  But as CoA Institute said in 2012, “federal executive branch agency personnel should not be able to use personal communications devices, such as home computers and personal e-mail accounts, to intentionally circumvent the FOIA’s disclosure provisions and evade public scrutiny of their professional conduct.”

A May 2016 State Department Inspector General report examining Secretary Clinton’s use of a private email account and server to conduct government business has now confirmed CoA Institute’s suspicions, illustrating the need for action. The IG Report reveals email correspondence suggesting that the private Clinton server and Clintonemail.com were used, at least in part, to intentionally shield Clinton’s work-related communications from public disclosure under FOIA:

“In August 2011, … [t]he then-Executive Secretary informed staff of his intent to provide two devices for the Secretary to use: ‘one with an operating State Department email account (which would mask her identity, but which would also be subject to FOIA requests)….’ In another email exchange, the Director of S/ES-IRM noted that an email account and address had already been set up for the Secretary and also stated that ‘you should be aware that any email would go through the Department’s infrastructure and subject to FOIA searches.’ However, the Secretary’s Deputy Chief of Staff rejected the proposal to use two devices, stating that it ‘doesn’t make a whole lot of sense.’ OIG found no evidence that the Secretary obtained a Department address or device after this discussion.”

The IG report indicates that Clinton’s email practices were driven, at least in part, by a sophisticated understanding of FOIA and a deliberate effort to frustrate the public’s right to know what the government is up to, as CoA Institute warned in 2012.

[1] Cause of Action Institute, Gmail.gov: When Politics Gets Personal, Does the PublicHave a Right to Know?, Engage, Vol. 13, Issue 2 (July 2012), available at http://www.fed-soc.org/publications/detail/gmailgov-when-politics-gets-personal-does-the-public-have-a-right-to-know (last visited June 1, 2016).

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06/2/2016

Cause of Action Institute Petitions OMB to Update FOIA Fee Guide

Today, Cause of Action Institute filed a petition for rulemaking with the White House Office of Management and Budget (“OMB”), urging it to update its obsolete guidance document that federal agencies rely on when making FOIA fee determinations.  The petition seeks to implement Cause of Action Institute’s landmark legal win in Cause of Action v. Federal Trade Commission where the D.C. Circuit ruled OMB’s guidance conflicts with the FOIA statute.

Background

In 1986, Congress passed, and President Reagan signed into law, the Freedom of Information Reform Act of 1986.  Section 1803 of the Act directed OMB to provide a uniform schedule of fees for all federal agencies and guidelines for how to apply that schedule.  On March 28, 1987, OMB finalized those guidelines.  Although Congress has amended the FOIA several times since 1986, OMB has never updated the guidance.

The failure by OMB to update its guidelines has resulted in costly, time-consuming litigation between agencies and requestors.  For example, in 2011 and 2012, CoA Institute sent a series of FOIA requests to the Federal Trade Commission (“FTC”) requesting access to records, to be classified as a representative of the news media, and for a public interest fee waiver.  The FTC refused the CoA Institute requests for fee classification and waiver by relying on its outdated FOIA fee regulations, which in turn relied on the outdated OMB guidance.  After the district court refused to apply the statutory standard, CoA Institute appealed the case to the D.C. Circuit, which ruled that many of the regulatory and judicial standards that had built up over time were in conflict with the statute as amended by the Open Government Act of 2007.

Petition

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05/31/2016

Supreme Court Ruling Protects Property Rights

Today, the United States Supreme Court issued an 8-0 opinion in U.S. Army Corps of Engineers v. Hawkes Company protecting landowners’ right to meaningfully challenge government overreach and arbitrary deprivation of private property rights.  The Court rejected the Corps’ argument that a federal court was not allowed to weigh in on the agency’s assertion of jurisdiction to regulate the Hawkes Company’s use of its own land to mine peat unless the company first spent hundreds of thousands of dollars to complete a time-consuming, complicated government permitting process. Cause of Action (CoA) Institute filed an amicus brief in support of the Hawkes Company, which was represented by the Pacific Legal Foundation.   The Court held that an approved Jurisdictional Determination (approved JD)—a federal agency determination that private property contains “waters of the United States” subject to the Clean Water Act (CWA) and the Environmental Protection Agency (EPA) “Waters of the United States” (WOTUS) regulation— is judicially reviewable under the federal Administrative Procedure Act (APA).

In its amicus brief, CoA Institute argued that the Corps approved JD deprived Hawkes of a property interest protected by the Fifth Amendment to the federal Constitution because it reduced the value of its land by preventing Hawkes from mining peat on it without fear of an EPA enforcement action.  Coupled with substantial criminal and civil penalties for CWA violations, a due process violation would result if immediate APA review of the Corps-approved JD is unavailable.

Justices Kennedy, Thomas, and Alito appear to share CoA Institute’s due process concerns and agree that the Constitution requires immediate judicial review of the federal government’s assertion of jurisdiction to regulate private property under the CWA.  In a concurring opinion joined by Justices Thomas and Alito, Justice Kennedy said that “the Court is right to construe a JD as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.”  Justice Kennedy wrote that the CWA, “especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”  CoA Institute applauds this unanimous Supreme Court decision protecting landowner property and due process rights.

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05/27/2016

ICYMI: Judge Lechner interview on Clinton email deception (WSJ Opinion Journal)

In Case You Missed It…

 

WSJ

Opinion journal

OJ judge interview

 

Opinion Journal’s Mary Kissel and Cause of Action Institute President and CEO Alfred J. Lechner, Jr., a former federal judge,
discuss the State Department’ IG report on Hillary Clinton’s email deceptions.

CLICK HERE

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05/25/2016

IG Report on Clinton Email Consistent with CoA Complaint

Washington, DC – Cause of Action (CoA) Institute President and CEO and former Federal Judge Alfred J. Lechner, Jr. today released the following statement following the release of a State Department Office of Inspector General (IG) report that found Hillary Clinton failed to comply with the Federal Records Act during her tenure as Secretary of State. The report found that Mrs. Clinton has not provided all of her emails to the State Department, which contradicts previous statements before the courts.

CoA Institute President & CEO Alfred J. Lechner, Jr.: “News reports today that the Department of State Office of Inspector General has determined that former Secretary of State Hillary Clinton did not use the ‘appropriate method’ for preserving her emails support Cause of Action Institute’s work to hold the State Department accountable for its violations of the Federal Records Act. The Inspector General found that the emails Mrs. Clinton belatedly returned to the State Department are an ‘incomplete’ set. Cause of Action Institute will continue to seek to compel Secretary Kerry and the National Archives and Records Management Administration to perform their statutory duties to recover all of Mrs. Clinton’s email records.”

The report states:

“Secretary Clinton should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary. At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”

On July 8, 2015, Cause of Action Institute filed a complaint in federal court in Washington, DC to compel Secretary of State John Kerry and Archivist of the United States David Ferriero to initiate action through the Attorney General to recover all of the records Mrs. Clinton unlawfully alienated from the State Department.  The defendants in that suit argued the case was moot because the State Department received 55,000 pages of emails from Mrs. Clinton.  The district court agreed with defendants and dismissed the suit.  The case is currently on appeal in the U.S. Court of Appeals for the District of Columbia Circuit.

Today’s revelations support the position of Cause of Action Institute, as the State Department Office of Inspector General has concluded that not only did Mrs. Clinton fail to comply with the law, but that the State Department has not recovered all of the records.

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05/24/2016

Cause of Action Institute Files Complaint Against IRS for Destroying Records

Washington, DC – The Cause of Action Institute (CoA Institute) today filed a legal complaint against the Internal Revenue Service (IRS) and its commissioner, John Koskinen, for refusing to capture and preserve electronic communications of employees that deal with official business, as required by the law.

CoA Institute President & CEO Alfred J. Lechner, Jr.: “The IRS and Commissioner Koskinen have a legal obligation to preserve official work communications between employees. It appears that federal records are being deleted because the IRS, in a deal with its employee union, refuses to preserve certain types of electronic communications. This lawsuit seeks to ensure that IRS follows the law. No agreement with a union or any other party can supersede Americans right to know how the IRS makes decisions.”

Documents obtained by CoA Institute show that the IRS has a private agreement with its employee union stipulating that the agency will not save the instant message records of its employees. But the IRS cannot allow such an agreement to supersede its statutory obligations to preserve records.  In addition, the IRS is violating the law by regularly deleting all employee text messages as a matter of convenience.

CoA Institute filed its lawsuit with the U.S. District Court for the District of Columbia to force the IRS to comply with its obligations under the Federal Records Act (FRA) to capture and preserve all relevant records.  The complaint seeks an order from the court to require the IRS to establish appropriate guidelines for the preservation of federal employees’ instant message and text message records and to preserve all such records permanently until the establishment of those guidelines.

Background:

Failure to preserve instant messages:

On June 30, 2015, the Treasury Inspector General for Tax Administration issued a report on the hard drive failures within the IRS that resulted in the loss of numerous agency records, including the email communications of Lois Lerner, former head of the IRS tax-exempt organizations unit.  That report revealed that the IRS maintained an instant messaging system for employee communications. But as a result of a memorandum of understanding between the IRS and the National Treasury Employees Union, the IRS did not capture, preserve, or retain such instant message records.  When CoA Institute submitted a FOIA request seeking information regarding this policy, the IRS confirmed that it “does not capture or maintain” the instant message records of its employees.

Failure to preserve text messages:

As part of an investigation into how federal agencies process their text message records, CoA Institute submitted a FOIA request to the IRS in November, 2014, asking it to produce the text message records of five high-ranking agency officials.  In response to that request and in follow-up communications, the IRS revealed that, due to “routine system housekeeping” and “spacing constraints,” text messages are retained for only 14 days and are thereafter deleted.

To access Cause of Action Institute’s complaint, click here. The accompanying exhibits may be found here.

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05/20/2016

Press Call to Discuss Justice Department’s Mortgage Settlements

WASHINGTON – Cause of Action (CoA) Institute has led efforts to investigate the settlements between the Justice department and big banks over their allegedly faulty mortgage practices. Last year, CoA Institute issued multiple public records requests aimed at exploring whether DoJ has the legal authority to enter into these settlements in the first place.

Representative Sean Duffy (R-Wis), Chairman of the House Financial Services Subcommittee on Oversight, recently held a hearing to examine the Department of Justice’s settlements with big banks over these mortgage practices. CoA Institute is also probing whether DoJ has the legal right to encourage banks to steer settlement funds to preferred third-party groups that support various initiatives backed by the Obama administration. To date, the Justice Department has not answered any of these important questions.

Today, CoA Institute President and CEO Alfred J. Lechner, Jr. hosted a press call with Rep. Duffy to discuss the Justice Department’s mortgage settlements with banks. The administration should be held accountable to taxpayers who deserve to know why the money from these settlements is not being returned to the Treasury Department, as the law requires.

The audio file can be found HERE.

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