Archives for 2016
07/13/2016
Cause of Action Institute Sues HUD to Disclose its Role in Controversial Mortgage Settlements
Banks required to provide “donations” to government-approved third parties
Washington D.C. – Cause of Action Institute (CoA Institute) today filed a complaint in the U.S. District Court for the District of Columbia against the United States Department of Housing and Urban Development (HUD) for failing to produce records about its role in the federal government’s multi-million dollar agreements with big banks over their allegedly faulty residential mortgage securities practices. HUD has failed to produce relevant documents for more than a year after CoA Institute filed a Freedom of Information Act (FOIA) request for information.
Cause of Action Institute President & CEO, and former federal judge, Alfred J. Lechner, Jr.: “Taxpayers deserve to know why the money from these agreements is going to third parties and not being returned to the Treasury Department. The Obama administration should be held accountable when agencies like HUD make decisions behind closed doors and fail to produce timely relevant documents in accordance with the law.”
Starting in 2013, the Department of Justice (DOJ) in collaboration with HUD and other agencies entered into a series of agreements with three large banks to resolve potential federal and state legal claims that these institutions knowingly sold billions of dollars in faulty residential mortgage-backed securities to investors prior to and during the 2008 financial crisis. These agreements contain so-called consumer relief provisions requiring or permitting that banks provide “donations” to government-approved third parties in lieu of paying funds to settle the federal claims into the U.S. Treasury.
CoA Institute, a nonprofit legal watchdog organization, has led efforts to investigate these controversial agreements. Last year, CoA Institute issued multiple public records requests aimed at exploring whether the federal government was authorized to encourage or force banks to steer funds to these third-party groups that support various initiatives backed by the Obama administration. One of these requests was submitted to HUD on July 8, 2015.
HUD has failed to respond or produce any documents in response to CoA Institute’s request. Recent evidence uncovered by the House Financial Services Oversight & Investigations Subcommittee, chaired by Congressman Sean Duffy, indicates that these agreements were structured, in a DOJ-HUD collaboration, with, in Chairman Duffy’s words, a “keen eye to make sure conservative groups could not access any money through these settlements.”
CoA institute is suing to force HUD to respond to its request and to get to the bottom of these issues.
- Cause of Action Institute’s full complaint with exhibits is available HERE.
07/7/2016
Did Federal Government Push Controversial Hawaii Gun Law?
Washington, DC – Cause of Action Institute (CoA Institute) today filed a Freedom of Information Act (FOIA) request to examine any potential involvement by the Department of Justice (DOJ) in preparing or advocating for Hawaii’s recently-passed law to restrict the exercise of constitutionally-protected gun rights.
CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “While touted as an important public safety measure designed to encourage responsible gun ownership and assist law enforcement, in reality this legislation will place law-abiding American citizens into a database maintained by the federal government to monitor criminals. This measure has the potential to severely chill gun ownership in Hawaii and limit individuals from exercising their Second Amendment rights.”
On June 23, 2016, Hawaii Governor David Ige signed into law SB 2954, thereby authorizing “county police departments in Hawaii to enroll firearms applicants and individuals registering their firearms” into a federal database known as “Rap Back,” which is a centralized “criminal record monitoring service” maintained by the FBI.
The Hawaiian gun law is unprecedented. It makes Hawaii the first state to submit information about its gun-owning citizens to the federal government. In light of current efforts by the Obama administration to create a national gun registry—which would be prohibited under current law —there is significant interest in examining the role, if any, played by the federal government in the development of this new law.
The full FOIA request is available HERE
07/7/2016
More needs to be done to fix FOIA (Judge Lechner Opinion–The Hill)
More needs to be done to fix FOIA
By Alfred J. Lechner, Jr. | July 06, 2016
Having just celebrated its “golden” 50th anniversary this Independence Day, the Freedom of Information Act (FOIA) is in desperate need of reform. President Obama issued a memorandum a day after his inauguration directing that the FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.” Instead, Obama administration agencies have sought to delay FOIA document production and taken advantage of FOIA loopholes to keep the public in the dark when disclosure of government information is most beneficial. As described in the 2016 House Committee on Oversight and Government Reform report, “FOIA Is Broken,” agencies routinely “overuse and misapply exemptions,” create policies “designed to deter requesters from pursuing requests and create barriers to accessing records.”
Bipartisan efforts in Congress to amend FOIA, which the president supports, reaffirm the importance of this essential tool for democratic governance and accountability. In June, the FOIA Improvement Act of 2015 (S. 337) passed both the House and the Senate and the president signed the bill into law last week.
The FOIA Improvement Act ultimately aims to codify a “presumption of openness” by amending the FOIA to state that unless the agency “reasonably foresees” that disclosure would cause identifiable harm to an interest protected by an exemption, or if the disclosure is prohibited by law, the material should be released. Under the bill, agencies will be required to make records available in an electronic format and there will be an expanded and codified role for a more independent Office of Government Information Services. These are commonsense ideals for a more open government. The primary principle underlying FOIA when it was signed into law a half century ago was to “hold the governors accountable to the governed.”
Unfortunately, the broad language in the FOIA Improvement Act does not address powerful agency disincentives to comply with and promote the goals of FOIA. The well-intentioned, yet undefined “reasonably foresee” standard may result in years of litigation until its transparency goal is achieved. Courts will rule upon the application of this standard after viewing documents behind closed doors. Such in camera review, in which the court reviews the documents in secret without disclosure to the opposing party, is antithetical to our adversarial system of justice; it places the judge in the awkward position of serving as both judge and advocate.
Fundamental problems with the FOIA will remain. A recent study by the Associated Press (AP) found that the government, across agencies, was taking “longer to turn over files,” increasingly claiming that it could not locate records, and had “refused a record number of times to turn over files quickly that might be especially newsworthy.” The AP also found that the government “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.”
My organization, the Cause of Action Institute, spent three years litigating two Federal Trade Commission misinterpretations of FOIA fee provisions that were superseded by the OPEN Government Act of 2007, a law that anticipated the increased scalability of the news industry. Justice was finally achieved following appeal to the D.C. Circuit and an opinion authored by Chief Judge Merrick Garland. Agency delay, misapplication of exemptions, and reliance upon outdated guidance contribute to the problems of a broken FOIA and result in unnecessary agency costs.
Congress periodically updates the FOIA, yet federal agencies continue to find new ways to delay or avoid compliance. For example, although text messages and instant messages involving official government business are records subject to the FOIA, some agencies simply make no effort to store, locate, or search for these records, depriving the public of appropriate information. Others, such as the IRS, acknowledge that such messages are records subject to the FOIA, and yet do not preserve them long enough for a requestor to seek access to them. Cause of Action Institute has sued the IRS over an agreement it signed with its employee union to destroy instant messages sent between IRS employees. This is a violation of the Federal Records Act and makes FOIA requests for these communications impossible.
Agencies and their employees need to be incentivized to provide greater disclosure and penalized for non-compliance. Agencies should recognize and reward employees who timely produce public records. Congress should also enact penalties for agency non-compliance by making attorneys’ fees and costs mandatory if a FOIA requester has to sue to obtain records.
Since it was first enacted in 1966, Congress has passed major FOIA reform legislation in 1976, 1986, 1996 and 2007. The current decennial effort to amend the FOIA, while a welcome demonstration of congressional bipartisanship to promote Executive Branch transparency, is a missed opportunity to fix many longstanding, fundamental problems. Hopefully, the political will to solve these problems will manifest in time for the “FOIA Improvement Act of 2026.”
Alfred J. Lechner, Jr. is a former U.S. District Judge for the District of New Jersey, and President and CEO of the Cause of Action Institute, a District of Columbia non-profit oversight and transparency law firm.
http://thehill.com/blogs/congress-blog/judicial/286632-more-needs-to-be-done-to-fix-foia
07/5/2016
Cause of Action Institute Investigates Private Meeting Between Bill Clinton, Attorney General
Washington, DC – Cause of Action Institute (CoA Institute) filed a Freedom of Information Act (FOIA) request for information surrounding the recent private meeting between Attorney General Loretta Lynch and President Bill Clinton that occurred on June 27, 2016 at the Phoenix airport, just days before the FBI announced it would not recommend charges against former Secretary of State Hillary Clinton. The Department of Justice (DOJ) apparently attempted to keep the meeting secret, as reporters on the ground were told: “no photos, no pictures, no cell phones.”
CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “A private meeting between President Bill Clinton and Attorney General Loretta Lynch raises serious concerns about impartiality at the Department of Justice. Today’s announcement that the FBI will not recommend pursuing charges against Hillary Clinton does not remove the public interest in knowing what was discussed.”
To understand the purpose of this meeting, Cause of Action Institute has requested all records, transcripts, or recordings of the meeting as well as the Attorney General’s schedule for June 26 – 28, 2016, including but not limited to pre- and post-meeting email which concern the meeting in any way.
The full FOIA request is available HERE
06/29/2016
Cause of Action Institute Calls for Investigation into Massive Disclosure of IRS Taxpayer Information to DOJ, FBI
Washington D.C. – Cause of Action Institute (CoA Institute) today called upon Treasury Inspector General for Tax Administration (TIGTA) J. Russell George to investigate whether IRS employees violated the law by disclosing more than a million pages of confidential information on tax-exempt groups to the FBI and DOJ’s Public Integrity Section. CoA Institute also demanded DOJ Inspector General Michael Horowitz examine whether FBI and DOJ employees violated taxpayer confidentiality laws by inspecting that data.
CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “The intentional disclosure of taxpayer information, especially information about groups that may have been targeted for their political viewpoints, not only violates the law but represents a breach of public trust. Americans deserve to know how Washington handles their most private information. Vigilant oversight is necessary to determine whether federal officials improperly accessed IRS records. This incident may be the largest and most significant breach of taxpayer confidentiality laws by the federal government in U.S. history.”
The call for investigation comes more than three years after CoA Institute first submitted a request for records seeking information relating to the disclosures. The IRS finally responded to the request on March 9, 2016, showing that, between 2009 and 2012, neither the FBI nor the DOJ submitted the statutorily-required requests for disclosure of sensitive tax return information. CoA Institute investigators also obtained reports submitted by the U.S. Treasury, which oversees the IRS, to the Joint Committee on Taxation of Congress, which reported only around 2,000 routine tax disclosures from IRS to the DOJ, mainly through U.S. Attorneys’ Offices. However, the IRS actually disclosed more than 1.1 million pages of tax return information to the FBI in October 2010, and the DOJ Public Integrity Section appears to have inspected that information.
To read the full letter, click HERE.
Section 6103 of the Internal Revenue Code provides a strict rule of confidentiality for tax returns and return information. Unless a statutory exception applies, government agencies and their employees may not disclose or inspect such information. Violations can include fines, termination from employment, and imprisonment.
The information in today’s letter will be incorporated into a comprehensive investigative report to be released in the coming weeks by CoA Institute. The report will outline a pattern of abuse by the Obama administration relating to the safeguarding of confidential taxpayer information.
CoA Institute Executive Director Daniel Epstein: “Our staff’s detailed review of thousands of documents over more than fifty months has confirmed the lack of compliance by this administration with statutory requirements designed to safeguard Americans’ most private information. As our forthcoming report will reveal, the administration’s revealed indifference to compliance has serious implications not only for the politicization of the bureaucracy but for the freedoms of any individual targeted by that bureaucracy’s menacing crosshairs.”
BACKGROUND
In October 2010, the IRS Exempt Organizations segment of the Tax Exempt and Government Entities Division disclosed more than 1.1 million pages of return information on 21 disks to the FBI and DOJ Public Integrity. DOJ Public Integrity and the FBI sought this information to investigate potential prohibited political activity allegedly undertaken by these groups. As part of a Freedom of Information Act lawsuit against the IRS and DOJ, CoA Institute obtained records demonstrating that neither the Public Integrity Section nor the FBI ever submitted a request for disclosure of tax return information to the IRS between 2009 and 2012, as required by federal statute.
CoA Institute alerted TIGTA about the possible violation of Section 6103 with respect to the October 2010 disclosure by letter dated July 23, 2015. But that notice went unanswered. Similar concerns raised in June 2014 by the U.S. House Committee on Oversight and Government Reform also were ignored. Now, newly-disclosed IRS records confirm these earlier concerns that the IRS, DOJ, and FBI likely broke laws prohibiting the unauthorized disclosure and inspection of taxpayer information.
As described in today’s letter, both the FBI and DOJ Public Integrity failed to file requests for disclosure under the relevant provisions of Section 6103, and the IRS lacked authorization to disclose the 1.1 million pages of tax-exempt entity return information. Given the pattern of abuse in the current Administration with respect to tax-exempt organizations, independent inquiry into what actually happened is not only appropriate, but necessary.
To access CoA Institute’s June 29, 2016 Letter to TIGTA and the DOJ IG, click here.
A full list of exhibits can be accessed here.
To access CoA Institute’s July 23, 2015 letter to TIGTA, click here.
06/24/2016
Cause of Action Institute Investigates Federal Censorship of Islamic Terrorism Terminology
Washington, DC – Cause of Action Institute (CoA Institute) today sent three Freedom of Information Act (FOIA) requests for documents surrounding recent instances where federal agencies have decided to censor language dealing with Islamic terrorism in order to keep full information from the public.
CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Political censorship not only chills public access to information, but also undermines public safety. The proposed DHS policy on censorship is counterintuitive and dangerous. The American public has the right to know who is engineering this censorship.”
Orlando shooter 911 transcript redactions:
CoA Institute sent a letter to the U.S. Department of Justice (DOJ) and the FBI seeking information on the redaction of the transcripts of a 911 telephone call made by Omar Mateen, the Orlando shooter, during his horrific rampage. The FBI has not explained when, if ever, it will release the entirety of the transcripts.
U.S. Attorney General Loretta Lynch indicated that the Obama administration withheld portions of the transcript linking the killings in Orlando to the Islamic State “to avoid re-victimizing those people that went through this horror,” but failed to provide any explanation as to how releasing information already public knowledge would “re-victimize” survivors.
After broad criticism, the DOJ reversed course and released a partial transcript without redactions. Yet the DOJ is still attempting to obscure the record by withholding critical information. The full transcript has not been released and, while the White House states that the DOJ ordered the redactions, the agency has refused to identify the individuals responsible. The FOIA request by CoA Institute seeks to better understand agency decision-making on this this matter, as well as the release of the full, un-redacted transcript.
Islamic terrorism terminology:
CoA Institute also is investigating a decision by the Obama administration to redact and purge the use of certain terms relating to Islamic terrorism in law enforcement and counterterrorism training materials and in presentations to the public and the media.
Following the June 12, 2016 mass murder of American citizens in Orlando, CIA Director John Brennan testified in an open session of the Senate Select Committee on Intelligence on the status of the United States fight against the Islamic State (ISIL), explaining that “despite all our progress against ISIL on the battlefield and in the financial realm, our efforts have not reduced the group’s terrorism capability and global reach.”
Unfortunately, Director Brennan left unaddressed the significant handicap that he and others in the Obama administration have placed on law enforcement and counterterrorism personnel by censoring and eliminating references to the underlying religious motivations of Islamic terrorists. Starting in 2011, Brennan led an aggressive campaign to purge any critical references to, or even mention of, Islamic ideology, beliefs, and cultural terms from intelligence and law enforcement training materials. In addition, a recent report from the Homeland Security Advisory Council recommends that law enforcement involved in fighting violent extremism “[r]eject religiously-charged terminology and problematic positioning by using plain meaning American English.” The report specifically calls for eliminating the use of terms such as ‘jihad,’ ‘sharia,’ ‘takfir’ and ‘umma.’
The use of specific, accurate, and even technical terminology in law enforcement is integral to effective counter-terrorism operations and training. CoA Institute accordingly has sent FOIA requests to both the CIA and the Department of Homeland Security seeking information on the Administration’s policies relating to Islamic terrorism terminology.
The full FOIA request for details of the Orlando killer’s 911 call is available HERE
The full FOIA request to CIA is available HERE
The full FOIA request to DHS is available HERE