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Archives for October 2018

10/23/2018

CoA Institute Files Brief in Support of Effort to Make Georgia Legislature Comply with Open Records Act

Files 50-state survey with Georgia Appeals Court

Cause of Action Institute (CoA Institute) filed an amicus brief today in support of a lawsuit requiring Georgia’s legislature to comply with the state’s open records act. The brief includes a 50-state survey on whether other state legislatures are subject to open records laws. The results of the survey show that 38 states provide the public with access to legislative records, while only a small minority, 11 states, exclude their legislatures from public-disclosure laws. Of those that exclude their legislature, eight states do so in express statutory terms.

The brief is in support of a lawsuit brought by the Institute for Justice (IJ) after they sent a series of public records requests to offices of the Georgia legislature seeking access to information about the state’s licensure requirement for music therapists. Yes, you read that correctly, licensure requirements for music therapists. The legislature claimed it was categorically exempt from Georgia’s open records law, and the superior court agreed. The case is now before the Georgia Court of Appeals.

CoA Institute’s survey reveals three important trends that should inform the Court’s decision:

  • When a state’s open records law does not cover the legislature, it’s usually explicitly statutorily exempt. Georgia law does not explicitly exempt the legislature;
  • In the absence of an express exclusion, broad terms are commonly interpreted to include the legislature, either in whole or in part; and
  • When there is any remaining ambiguity, the presence of statutory exemptions concerning specific legislative offices or records implies that the legislature must be covered; Georgia has these exemptions.

When IJ filed its requests, and the court below issued its order, the Georgia Open Records Act included two exemptions for legislative records. The first of these provisions exempted records from a series of legislative offices: the Legislative and Congressional Reapportionment Office, the Senate Research Office, and the House Budget and Research Office. The second provision, which is still in force, exempts certain records from the Office of Legislative Counsel. These offices are all contained within the legislative branch. Neither exemption would make any sense if the General Assembly were not, by default, covered by the Open Records Act.

To accept Georgia’s position, as adopted by the court, would render the Act’s explicit, narrow exemptions mere surplusage, violating a core canon of statutory construction. Therefore, the Court of Appeals should recognize that the presence of the exemptions for certain legislative offices as means that the broader legislature must be covered. This interpretation would conform Georgia’s approach to the broad trends that Cause of Action Institute identified in the 50-state survey.

The full amicus brief is available here.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

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10/18/2018

Cause of Action Institute Files Lawsuit Against Commerce Department for Failing to Release Tariff Exemption Material & Information

Washington, D.C. (Oct. 18, 2018) – Cause of Action Institute (CoA Institute), a government watchdog organization, today filed a lawsuit against the U.S. Department of Commerce for failing to turn over public documents related to trade tariffs and tariff exemptions. CoA Institute first launched the investigation into the tariff exemption process after it was reported that some of the largest steel and aluminum manufacturers in the country had successfully blocked every tariff exemption filed by smaller U.S manufacturing companies.

John Vecchione, president and CEO of CoA Institute, issued the following statement:

“Tariffs manipulate the free market by creating government-controlled barriers that harm hardworking Americans and putting the economic health of our country at risk. We now have a system where the Executive Branch has the power to pick winners and losers. Our investigation seeks to uncover the process by which tariff exemptions are approved and denied, ensure the tariff-exemption exclusion process is free of political and corporate influence, and seek to uncover any communication between government officials and the companies successfully blocking tariff exemptions.”

Background and timeline:

Attachments:

  • Complaint – Cause of Action Institute v. U.S. Department of Commerce, No. 18-2397. Tariff Exemptions
  • FOIA #1 – Request for work calendars of staff and leadership at the U.S. Department of Commerce that may create or influence tariff and tariff exemption policy
  • FOIA #2 – Employee records relating to tariff exemption process, guidance and employees involved in the decision-making process
  • FOIA #3 – Any and all communication between staff and leadership at the U.S. Department of Commerce and companies benefiting from tariffs and those filing tariff exemptions

See also:

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

Media Contact:
Matt Frendewey
matt.frendewey@causeofaction.org
202-699-2018

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10/15/2018

CoA Institute Calls on Inspectors General Council to Revise Proposed FOIA Regulations

Cause of Action Institute (CoA Institute) submitted a comment last week to the Council of Inspectors General on Integrity and Efficiency (CIGIE) concerning the agency’s interim final rule implementing revised Freedom of Information Act (FOIA) regulations. CoA Institute explained that the agency’s new rule could cause confusion by directing staff to interpret the FOIA statute and CIGIE’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (OMB).

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987. Although FOIA requires an agency to promulgate its fee schedule in conformity with the OMB Guidelines, they are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities.  Indeed, over the past thirty years, OMB has made no effort to revise its fee guidelines.  The OMB Guidelines therefore should not be used as a reference point for proper administration of the FOIA.

One problematic aspect of the OMB Guidelines is the definition of a “representative of the news media.”  The current statutory definition of this fee category, which was introduced by the OPEN Government Act of 2007, differs significantly from the definition provided by OMB in 1987.  OMB’s definition, which incorporates an “organized and operated” standard, has long been one of the more contentious aspects of the OMB Guidelines.  In 2015, however, the D.C. Circuit issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.

The OMB Guidelines also have been rendered obsolete by other jurisprudential developments.  For this reason, in 2016, the FOIA Advisory Committee and Archivist of the United States called on OMB to update its fee guidance.  CoA Institute filed a petition for rulemaking on the issue, too.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  The lawsuit is still pending with respect to the fee guidelines, although the agency has agreed to update its own implementing regulations (and to abandon the “organized and operated” standard).  Until the OMB Guidelines have been revised to reflect modern circumstances and the actual text of the FOIA, however, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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10/15/2018

Cause of Action Institute Lawsuit Seeks to Overturn DOJ’s restrictive FOIA guidance

CoA seeks to correct the definition of a “record” to prevent federal agencies from unnecessarily redacting public information

Washington, D.C. (Oct. 15, 2018) – Cause of Action Institute (CoA Institute), a government watchdog organization, today filed a lawsuit against the U.S. Department of Justice (DOJ), challenging the Department’s definition of a “record” under the Freedom of Information Act (FOIA). DOJ’s guidance document classifies “records” only as the material requested in a FOIA request. This allows agencies to break a single record into multiple smaller records, redacting information that would otherwise be public and not meet allowable exemptions under the FOIA statute (e.g. releasing a single paragraph while redacting the rest of an email as a “nonresponsive record”). DOJ’s policy unnecessarily restricts public information that should not be redacted.

James Valvo, counsel and senior policy advisor at CoA Institute, issued the following statement:

“DOJ’s FOIA policy and misreading of the definition of a record under FOIA actively seeks to restrict access to public information beyond the scope of federal law. This is poor public policy, and an attempt to undermine laws that require the government remain transparent and accountable.”

Background:

  • The U.S. Department of Justice FOIA guidance document allows the agency, and others that rely on its guidance, to segment unified records into multiple smaller records to avoid disclosure.
  • This case seeks to establish, for the first time, a binding definition of a “record” under the FOIA.
  • Courts have held numerous times that FOIA contains only nine exemptions and agencies may not use “nonresponsive” as a tenth. (for example, personal identifying information, records that pertain to national security, etc.)
  • For more background on the legal issue, click here.

Attachments:

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

Media Contact:
Matt Frendewey
matt.frendewey@causeofaction.org
202-699-2018

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10/12/2018

How a small 242-year-old Spanish fort is part of an ongoing effort to make the government more transparent and accountable

Presidio Trust Adopts CoA Institute’s Recommendations with Final FOIA Regulations

In 1776, more than 2,800 miles away from the battles of the American Revolution, a Spanish military fort was established on the tip of the San Francisco Peninsula. Today, this small slice of land is a federal park managed by an obscure federal agency called the Presidio Trust. Two hundred and forty-two years later, this former Spanish military fort is part of Cause of Action Institute’s ongoing effort to make all levels of the federal government more transparent and modernize the federal government’s FOIA process.

Earlier this week, the Presidio Trust finalized a rule implementing new Freedom of Information Act regulations and incorporating important revisions proposed by Cause of Action Institute in March 2018.

CoA Institute made several recommendations in response to the Presidio Trust’s proposed rulemaking. Most importantly, we urged the agency to remove outdated “organized and operated” language from the definition of a “representative of the news media.” Such language has been used by government agencies in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.

For example, CoA Institute sued the Federal Trade Commission, and took its case all the way to the D.C. Circuit, to get the agency to acknowledge that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction. In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases. CoA Institute cited this case to the Presidio Trust, and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.

The statutorily superseded “organized and operated” standard originates with FOIA fee guidelines published by the White House Office of Management and Budget (OMB) in 1987.  Portions of the OMB guidance are no longer authoritative because they conflict with the statutory text, and judicial authorities, including Cause of Action v. Federal Trade Commission.

In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines. CoA Institute filed a petition for rulemaking on the issue and is litigating the matter in federal court. Earlier this summer, OMB finally agreed to update its agency regulations, and amend its definition of a news media request, but the agency continues to refuse to update the 30-year-old fee guidelines.

Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on 24 separate rulemakings.  Of the 13 that have been finalized, CoA Institute has succeeded in convincing nine agencies, including the Presidio Trust, to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media.”

The remaining agencies that have accepted CoA Institute’s recommendations include the following:

Some agencies, including the National Credit Union Administration and the Federal Reserve, have deferred their consideration of CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding FOIA fee issues.

CoA Institute’s successful comment to the Presidio Trust is another small step in our efforts to provide effective and transparent oversight of the administrative state and ensure agency compliance with the FOIA.

See also:

Cause of Action Institute’s March 2018 public comment submitted to the Presidio Trust

Ryan P. Mulvey is Counsel at Cause of Action Institute

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10/8/2018

DOJ Releases First Set of Documents Showing High-Level Employee Using Private Email

“[L]ack of transparency is a huge political advantage. And basically, call it the ‘stupidity of the American voter’ or whatever, but basically that was really, really critical to getting the thing to pass.” – Jonathan Gruber, architect of Obamacare.

A fundamental pillar of an open and free society is a transparent and accountable government and the reason why Cause of Action Institute (“CoA Institute”) is investigating the use of non-governmental email for official government business by current and former high-level employees at the Department of Justice.

On March 1, 2017, Politico’s Edward-Isaac Dovere tweeted Sarah Isgur Flores, the new spokesperson at the U.S. Department of Justice, used her personal Gmail account to send out an official statement.

While public officials, by accident or necesity, use personal devices from time-to-time, the Obama Administration was notorious for using personal email and secretive government email accounts to avoid disclosure.

CoA Institute filed a Freedom of Information Act (“FOIA”) request the next day seeking the statement allegedly sent from Flores’ Gmail account along with all emails sent or received by Flores from a non-governmental email account since January 20, 2017, when the Trump Administration took office.

After a year and a half of waiting for a response, we filed suit on August 1, 2018 to obtain the documents. On September 27, 2018, the DOJ Office of Information Policy (“OIP”) provided a final response on the Flores request and claimed that the records were located in an official DOJ email account:

As is evident from the enclosed records, Ms. Flores forwarded emails sent to her personal account to her official Department of Justice email account, including through an automatic forward. As such, all of these emails were located pursuant to our search of Ms. Flores’ official Department of Justice email account.

OIP’s production included 112 pages of emails showing Flores either forwarding or carbon copying her official DOJ email in late February through the end of March 2017. Yet despite the assurance from OIP that they have provided all the emails sent from a non-governmental account, OIP failed to include the original March 1, 2017 press statement that prompted CoA Institute’s FOIA request. It’s unclear whether  Flores failed to forward it to her official account, or if OIP failed to identify and include it in its document production.

The Flores records are only the first production owed to CoA Institute from DOJ in this litigation. The other records at issue concern the use of non-governmental email accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki. In a September 20, 2018 Joint Status Report, the FBI’s search for records uncovered more then “1,200 potentially responsive records”:

The FBI has completed its search and has located approximately 1,200 potentially responsive records, some of which may require consulting subject matter experts or referrals to other agencies. It anticipates a four-month processing timeline with the first release on October 31, 2018, and additional releases following on a monthly basis.

The 1,200 potentially responsive records is significant because the June 2018 Department of Justice Office of Inspector General (“IG”) report found “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business,” but only cited five examples. Further, Rybicki claimed that the use of non-governmental accounts was “rare”, and Comey stated that it was only used for documents that would be “disseminated broadly.”  From the DOJ IG report:

Comey stated that he did not use his personal email or laptop for classified or sensitive information, such as grand jury information. Comey told us that he only used his personal email and laptop “when I needed to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.”

 

We also asked Rybicki about Comey’s use of a personal email account. In response to the OIG’s questions and in consultation with Comey, Rybicki sent the OIG an email on April 20, 2017, that stated: In rare circumstances during his tenure, Director Comey sends unclassified emails from his official FBI.gov email account address to [his Gmail account]. (emphasis added)

The information we have thus far casts doubt on Comey and Rybicki’s statements to the IG about the frequency and nature of their use of non-governmental email accounts. As James Comey recently wrote, “little lies point to bigger lies.”  Stay tuned.

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8



Final Response (9 27 18) (Text)

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10/1/2018

Cause of Action Institute Clips – 10/1/2018

Good morning,

Welcome to Cause of Action Institute’s morning clips and updates – you can also read and share the clips by clicking here. The  U.S. Supreme Court kicks off its October 2018 term today. I’ve included a quick summary on two cases before the Court this week that Cause of Action Institute is following closely.

Have a great Monday and enjoy!

_____________________________

Matt Frendewey
Cause of Action Institute
O (202) 499-4231

 

Weyerhaeuser Company v. U.S. Fish and Wildlife Service

Today, the Court will hear oral arguments in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. This case involves the federal government designating 1,500 acres of private land as “critical habitat” for the endangered dusky gopher frog.  The question that we discuss in our amicus brief is whether the agency’s refusal to consider the economic impact of its decision is subject to judicial review. We argue that the court of appeals below ignored the strong presumption of judicial review and the Supreme Court should reverse.
You can read more about the case in our Aug. 22 blog, as well as our amicus curiae brief.

 

Gundy v. United States

Another case we’re following closely is Gundy v. United States. This case is scheduled to be heard tomorrow and raises a question of whether the Executive Branch can exercise legislative authority by defining the scope of federal criminal liability even though neither the Constitution nor Congress has given the Executive Branch the power. We joined the Cato Institute and filed an amicus brief arguing that the founders specifically intended for the powers of making laws and enforcing laws to be separated, quoting John Adams, “[t]he executive shall never exercise the legislative and judicial powers . . . to the end it may be a government of laws and not of men.” This is especially true in the area of criminal laws, where we must ensure that Congress and not the Executive determines liability.
You can read the full amicus curiae brie here.

 

npr – Supreme Court Term Begins In The Shadow Of Kavanaugh Confirmation Battle – By Bobby Allyn

As the Senate remains in a pitched battle over the nomination of Brett Kavanaugh, the Supreme Court on Monday will begin its new term with far less fanfare. … The very first case the Court will take up concerns a frog species that is threatened with extinction: the dusky gopher frog. Weyerhaeuser., a large timber company, is challenging the federal government’s classification of Louisiana timberland as a “critical habitat” for the dusky gophers. There are only 75 dusky gopher frogs left in the wild and they are protected by the Endangered Species Act.

 

New York Times – A Quiet Docket May Be Just the Right Medicine for the Supreme Court – By Adam Liptak

In the shadow of a titanic confirmation fight, the Supreme Court will return to the bench on Monday with a docket that offers an opportunity to lower the temperature.

 

The Hill — Tariff-exemption process raises serious cronyism concerns – By John Vecchione

The tit-for-tat trade war involving tariffs continues to grow between the U.S. and other countries, and as night follows day, where there are tariffs, there is the corrupt prize of tariff exemptions. A new, domestic trade war has emerged within the Commerce Department in an effort to secure and block tariff exemptions.

 

Politico –Liberals Don’t Know Much About Conservative History – By GEOFFREY KABASERVICE

The growing tendency of late for liberals and conservatives to regard each other as not just opponents, but enemies, has been one of the most alarming in an alarming era. At the root of this fear and loathing is mutual incomprehension: Liberals simply don’t understand conservatives, and vice versa. In years past, the historical profession has done little to improve matters. Liberal historians typically treated conservatives and their ideas with disdain, when they deigned to notice them at all.

 

arstechnica –  FBI: We can’t listen to Facebook Messenger voice calls. Judge: Tough luck – By Cyrus Farivar

A federal judge in Fresno, California recently denied prosecutors’ request to force Facebook to wiretap voice calls by suspected gang members conducted over Messenger. According to a Friday report by Reuters, despite already having substantive traditional wiretaps and intercepting Messenger texts between alleged MS-13 gangsters, the government wanted further access. “Currently, there is no practical method available by which law enforcement can monitor these calls,” FBI Special Agent Ryan Yetter wrote in a nearly-100-page-long affidavit submitted to the court on August 30, 2018. The three participants in those calls are now in jail, according to Reuters.

 

ftc.gov – Student Debt Relief Operators Agree to Settle FTC Charges

The operators of a student loan debt relief scam have agreed to settle Federal Trade Commission charges that they bilked millions from consumers by falsely claiming to enroll consumers in loan forgiveness programs, for which they charged up to $1,000 in illegal upfront fees. The five settlements are part of a coordinated federal-state law enforcement initiative targeting deceptive student loan debt relief scams announced by the FTC in October 2017, called Operation Game of Loans. The settlements are with the following individual defendants and their associated companies:

 

Politico – U.S. reaches trade deal with Canada and Mexico, providing Trump a crucial win – By ADAM BEHSUDI, ALEXANDER PANETTA and DOUG PALMER

Trade ministers from the U.S., Mexico and Canada have reached a deal to revamp the North American Free Trade Agreement, the Trump administration announced late Sunday night. The new pact, which is being called the U.S.-Mexico-Canada Agreement, is a major step toward completing one of Trump’s signature campaign promises and gives the president a concrete policy win to tout on the campaign trail this fall. It also sets the stage for what is sure to be a high-stakes fight to get the agreement passed by Congress before it can become law.

 

thehill – Supreme Court starts new term shorthanded – BY LYDIA WHEELER

The Supreme Court starts its new term on Monday and it will be short-handed on the bench — one of several challenges the justices are facing along with cases dealing with limits on the death penalty, the separation of church and state and employment discrimination. Sexual assault allegations against Brett Kavanaugh, President Trump’s nominee to succeed former Justice Anthony Kennedy, have already delayed his Senate confirmation and could ultimately sink his nomination. But with or without him the court will be back in session.

 

foxnews – California’s Jerry Brown signs tough net-neutrality bill, prompting Justice Department lawsuit  

California Gov. Jerry Brown signed the nation’s toughest net neutrality measure Sunday, requiring internet providers to maintain a level playing field online. The move prompted an immediate lawsuit by the Trump administration. Advocates of net neutrality hope the new law in the home of the global technology industry will have national implications by pushing Congress to enact national net neutrality rules or encouraging other states to follow suit.

 

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