Archives for 2021

Litigation Update: Cause of Action Institute Forces Department of Commerce to Release 232 Uranium Report

On the eve of oral argument before the District Court for the District of Columbia, the Department of Commerce says it intends to publish its Section 232 report on the “Effect of Imports of Uranium on the National Security” tomorrow, July 29, 2021, in a just-filed motion:

On July 29, 2021, Commerce intends to publish the Uranium Report on its website and, on August 2, 2021, it intends to publish the report in the Federal Register. Undersigned counsel has been authorized to represent that the Office of the President has agreed with this course of action.

Cause of Action Institute originally filed FOIA requests for the report over two years ago on April 15, 2019, and filed suit on September 10, 2019.

Ryan Mulvey, counsel at CoA Institute:

We are pleased that the Department of Commerce finally decided to provide transparency on this report, but It should not have taken a FOIA lawsuit to force release when the 232 statute requires publishing reports in the Federal Register. 232 reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.

The remaining issues in the lawsuit include a “policy or practice” claim, which CoA Institute is using to seek judicial review of Commerce’s systematic approach of denying access to Section 232 reports, and the failure of agency to provide the response letter from the Department of Defense.

232 Uranium Report Documents:

More information about CoA Institute’s FOIA litigation for the 232 Auto-Tariff report:

Herring fishermen appeal district court decision upholding industry-killing at-sea monitoring regulations

Washington D.C. – Cause of Action Institute today filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of several family-owned fishing companies based in New Jersey, who hope to block a new regulation that would force them to pay for third-party “at-sea monitors.”  That regulation—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic Atmospheric Administration—requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at industry’s cost, all without congressional authorization.

Last month, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia granted the government’s motion for summary judgment, ruling federal regulators had statutory authorization to force fishermen to bear the cost of monitoring, regardless of the severe economic impacts and lack of scientific justification.  Judge Sullivan also discounted procedural deficiencies in the government’s rulemaking, including its prejudgment of the legality of industry funding.

Jeff Kaelin, Director of Sustainability and Government Relations at Lund’s Fisheries, Inc., and representative for the New Jersey plaintiffs:

The district court reached an unfortunate decision, providing deference to the government, which is enforcing the industry-funded monitoring program without the statutory authority to do so.  The commercial herring fleet has been over-regulated for years, but with little demonstrated biological benefit to the Atlantic herring resource itself.  Industry-funded monitoring, along with reduced quotas and other burdensome regulations, is forcing some herring fishermen out of business and increasing costs to those who still hope to hang on.  The district court’s decision is likely to perpetuate that trend.  We are grateful for the work Cause of Action Institute has undertaken, and we look forward to pursuing our appeal at the D.C. Circuit.  In the end, we hope the rule of law will prevail.

Ryan P. Mulvey, Counsel at Cause of Action Institute:

We aim to convince the D.C. Circuit that Judge Sullivan’s ruling is contrary to the law and facts.  The federal government has overextended its regulatory power far beyond what Congress authorized.  The Magnuson-Stevens Act simply does not give the government and fishery management councils a blank check to regulate according to their whim. The imposition of industry-funded at-sea monitoring is likely to weigh down an already beleaguered commercial fishing industry.

The herring fishermen filed their lawsuit in February 2020.  Further information is available here and here.

Media Contact: James Valvo, james.valvo@causeofaction.org | (571) 482-4182

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DC Circuit Rejects DOJ Attempt to Use “Non-Responsive” as a Tenth Exemption to FOIA

This week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Cause of Action Institute in its challenge to the Department of Justice’s (“DOJ”) attempt to segment records as “non-responsive” in order to avoid disclosure under the Freedom of Information Act (“FOIA”).

The records at issue were DOJ responses to questions from members of Congress known as Questions for the Record (“QFR”). The Circuit shot down DOJ’s argument that it could withhold individual questions and answers as non-responsive within a single QFR document:

DOJ’s position in this case is that each individual question and its corresponding answer within each of the self-contained QFR documents constitutes a separate “record” under FOIA. Resting on this claim, DOJ maintains that if it determined that a particular question-and-answer pairing within a QFR document was unresponsive to Appellant’s FOIA request, DOJ could decline to disclose the material even though none of the material in the QFR document was exempt from disclosure. Though our case law provides for a “range of possible ways in which an agency might conceive of a ‘record,’” we reject DOJ’s approach as an untenable application of FOIA, outside the range of reasonableness.

Unfortunately, the Circuit, while reversing the District Court on standing, dismissed Cause of Action Institute’s second claim challenging to DOJ Office of Information Policy’s guidance on defining a record under FOIA as unripe.

Read more about the decision at Yale Notice and Comment.

Background:

October 30, 2020: Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act

Feb. 8, 2017: Defining a “Record” under FOIA

Aug. 17, 2016: There is No Tenth Exemption

Federal Judge Rejects Export-Import Bank’s Arguments for Refusing to Disclose Public Records

Judge James Boasberg of the U.S District Court for the District of Columbia ruled this week that the Export-Import Bank (“EXIM Bank”) must produce a variety of records it initially withheld in response to two FOIA requests from Cause of Action Institute (“CoA Institute”). CoA Institute’s September 20, 2018 FOIA request sought all communications to or from EXIM leadership regarding key EXIM stakeholders and beneficiaries. The May 2019 FOIA request sought information after a Government Accountability Office (“GAO”) report found EXIM potentially provided billions in financing to companies with delinquent federal debt by failing to use a readily available federal database.

EXIM attempted to shield the records from disclosure under FOIA Exemption 5 and the deliberative-process privilege (a.k.a., the “withhold it because you want to” exemption). After reviewing the withholdings and unredacted versions of the records in camera, the Court issued a forceful opinion that describes numerous instances where the agency either inappropriately withheld public records or failed to adequately defend its refusal to disclose them.

Page 13 regarding cybersecurity documents:

“[T]he agency’s Vaughn Index omits all mention of one of the two withheld memoranda.  The Court only because privy to its existence by way of in camera review, finding it tucked within a different record marked for other purposes. It need scarcely be said that the Court cannot affirm Defendant’s withhold of a record it never even acknowledges. . . . [I]t is painful enough for the Court to laboriously pore over all of these in camera records even without errors.”

Pages 17–18 regarding media outreach and marketing documents, events and conference documents, and high-level statistics:

“Instead of discussing (or even alluding to) these parts of the senior staff reports, Defendant simply approaches the documents from a generic, 30,000-foot view while ever so briefly narrowing in on a few unrepresentative portions . . . . [M]uch material in the reports hardly qualifies as ‘advisory opinions, recommendations and deliberations,’ nondisclosure of which is necessary to “protect[] the decision making processes of government agencies. . . . [T]he agency bears the burden of establishing that the withheld information is both predecisional and deliberative, such that it comes within the privilege. It has not discharged that obligation with respect to the excerpts examined here.”

Pages 19–20 regarding meeting documents:

“[R]eprising its earlier oversight, Defendant neglects to include in its Vaughn Index one of the three sets of meeting minutes, as well as one of the two meeting agendas.  The Court, once again, only discovered their existence during its in camera review.  Such repeated carelessness only undermines the Court’s confidence in the attention the Government has devoted to its responsibilities here.  The second problem is perhaps worse: notwithstanding its near-complete withholdings, Defendant in its submissions completely ignores all six records, declining even to mention them in its declaration and briefing.  That lapse is all the more glaring where [CoA Institute] explicitly flagged the deficiency in its Cross-Motion.”

Page 23 regarding an e-mail from EXIM’s Assistant General Counsel:

“The Court could go on — for instance, Defendant never establishes . . . that the underlying information was kept confidential. . . . This record must see the light of day.”

Pages 30–31 regarding EXIM communications with the GAO:

“Even the briefest in camera review reveals that this description is plainly overbroad and — at least with respect to some of the withheld documents — seemingly inaccurate, as their content has nothing to do with ‘fraud[] that had been committed against the agency.’”

Page 33 regarding a single EXIM e-mail to the GAO:

“In addition to thus appearing to flunk Exemption 5’s threshold requirement . . . in no fashion may the document be deemed deliberative. . . . Defendant has pointed to no foreseeable harm from its disclosure, the agency must release it to Plaintiff.”

Page 41 regarding efforts to segregate and release non-exempt portions of records:

“[CoA Institute] has highlighted several red flags undermining the ‘presumption’ that Defendant has disclosed all reasonably segregable material, including the basic reality that a number of the records the Government claims were only redacted in part appear to have been redacted in full.  The Court’s own in camera review, moreover, causes it further [to] question whether the Bank has adequately complied with FOIA’s segregability mandate.”

Read more of CoA Institute’s work on EXIM: