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Records Show How Former FBI Director James Comey Misled the DOJ Inspector General About His Personal Email Use

December 7, 2018 by

Cause of Action Institute (CoA Institute) has obtained a second batch of former FBI Director James Comey and former FBI Chief of Staff James Rybicki’s emails sent or received on their personal, non-official email accounts to conduct agency business. The FBI’s latest records production is the second of four rolling productions. The FBI reviewed 518 pages of emails and released 439 pages to CoA Institute. Once again, these emails undermine Director Comey’s statements concerning the types of matters he discussed while using his personal email to conduct official business.

Last month, CoA Institute published the first set of records received as part of our FOIA lawsuit. Contrary to Director Comey’s representations to the DOJ that he never used his personal email account for “sensitive work,” the first batch of emails we obtained revealed otherwise. Those records included emails withheld in full and others redacted in part under the FOIA’s law enforcement exemption, which exempts from public disclosure certain sensitive information created or compiled for law enforcement purposes.

This new second batch of emails tells much of the same story. For example, the redactions in the completely redacted email below cite 3 bases for the application of the law enforcement exemption (b7A, C, & E). These exemptions pertain to information that, if released, could (A) interfere with law enforcement proceedings, (C) constitute an invasion of personal privacy, or (E) disclose law enforcement techniques and thereby risk circumvention of the law. In other words, the FBI determined that the work Director Comey conducted on his personal account was so sensitive in nature that it justified redaction under Exemption 7 of the FOIA to prevent disclosure to the public.

As explained in the FBI’s cover letter accompanying the production to CoA Institute, the FBI is only providing emails that Director Comey and his Chief of Staff forwarded or copied to their official FBI email accounts: “The FBI conducted email searches for any communications to or from James Rybicki’s and James Comey’s personal email accounts, located within Rybicki’s and Comey’s FBI email accounts.”  This follows from Director Comey’s claims that all FBI-related work he conducted on Gmail was forwarded to an official FBI account. As Director Comey told the DOJ Inspector General:

“I was always making sure that the work got forwarded to the government account to either my own account or Rybicki, so I wasn’t worried from a record-keeping perspective was, because there will always be a copy of it in the FBI system.”

But if Director Comey misrepresented the nature of the work he conducted on his personal email account, a plausible concern arises as to whether Director Comey thoroughly searched and forwarded all work related emails from his personal account to his government account This is why using private email accounts for government business is so problematic: The agency—and ultimately the public—must rely on the very people who are violating the rules by using personal email accounts to forward their work-related emails to official government accounts. If they forget or choose not to copy an official account, there is little chance the agency will ever search for and recover the federal records created or received on those personal accounts. And that means those records cannot be produced to the public under the FOIA.  The use of non-official accounts to conduct agency business, whatever the reasoning, imperils transparency, accountability, and good government, and it undermines trust.

You can view and download the documents here:

Part 1 (411 pages)

Part 2 (30 pages)

FBI Cover Letter

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

Thomas Kimbrell is an Investigative Analyst at Cause of Action Institute.

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

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Democratic Senators Seek Records about “Sensitive Review” from VA, Ask Inspector General to Open Investigation into FOIA Politicization

August 1, 2018 by

Last week, a group of eight Democratic Senators, led by Ranking Member Jon Tester of the U.S. Senate Committee on Veterans’ Affairs, wrote to the Department of Veterans Affairs (“VA”) to express concern over the possible politicization of the agency’s Freedom of Information Act (“FOIA”) processes.  The senators requested various records concerning the involvement of political appointees in the FOIA decision-making process, as well as other “sensitive review”-type policies.  They also wrote to the VA’s Inspector General to request an investigation into these allegations.  Among other things, the legislators sought “an assessment of the role that political appointees play in the FOIA process, what types of oversight exist to ensure employees are providing all responsive material, and who makes determinations about what is or is not responsive to a request[.]”

Sensitive FOIA review has been increasingly in the news.  The most recent reports have focused on the Environmental Protection Agency (“EPA”).  According to EPA Chief of Staff Ryan Jackson, the Trump Administration has added an “extra layer of review” for “politically charged” or “complex requests.”  Other officials claim that “sensitive review,” and similar practices such as “White House equities” review, actually originated with the Obama White House.  This latter claim is better supported by the historical record, as I (here and here) and others (here) have repeatedly argued.  The Obama Administration was notorious for its efforts to delay and block the disclosure of politically damaging or otherwise newsworthy records.  This is not to say the Trump Administration is innocent—it has likewise contributed to obfuscation and an overall erosion of transparency.  My posts earlier this year on sensitive review at the National Oceanic and Atmospheric Administration and the Federal Aviation Administration demonstrate as much.

In the case of the VA, the agency’s watchdog previously argued, in 2010 and 2015, that there has not been regular inference by political appointees in the FOIA process.  But the public has long known of internal practices at the VA that likely contribute to politicization.  In August 2007, for example, the agency issued a directive concerning the processing of “high visibility” or “sensitive” FOIA requests that implicate potentially embarrassing or newsworthy records.

The potential for politicization only worsened during the Obama Administration.  An October 2013 memorandum instructed all Central Office components to clear FOIA responses and productions through Jim Horan, Director of the VA FOIA Service.  (Mr. Horan is still part of the leadership in the Office of Privacy and Records Management.)  This clearance process imposed a “temporary requirement” for front office review—although it is unknown whether the practice continues—and entailed a “sensitivity determination” leading to unnamed “specific procedures.”

Regardless of which party or president controls the government, sensitive review raises serious concerns.  Although alerting or involving political appointees in FOIA administration does not violate the law per se—and may, in rare cases, be appropriate—there is never any assurance that the practice will not lead to severe delays of months and even years.  At its worst, sensitive FOIA review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.  When politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will always have an incentive to err on the side of secrecy and non-disclosure.

Considering the new allegations of FOIA troubles at the VA, CoA Institute has submitted a FOIA request seeking further information about the agency’s sensitive review policy.  We will continue to report on the matter as information becomes available.

Ryan P. Mulvey is Counsel at Cause of Action Institute.




 

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Inspector General Admits to Flawed FOIA Rule and Intends to Request HUD Revisions

March 15, 2018 by

The Department of Housing and Urban Development (“HUD”) Office of Inspector General (“OIG”) has responded to Cause of Action Institute’s (“CoA Institute’) letter requesting that the watchdog recall and revise its direct final rule implementing changes to its Freedom of Information Act (“FOIA”) regulations.  CoA Institute criticized the OIG’s cross-referenced definition of a “representative of the news media,” which improperly retained the outdated “organized and operated” standard, rather than incorporating the statutory definition.  The OIG now admits that its flawed FOIA rule “does not track the current statutory language,” and agrees that the D.C. Circuit’s decision in Cause of Action v. Federal Trade Commission is controlling.

As we previously explained, the OIG, as an independent component of HUD, maintains its own rules regulating public access to its records.  Yet the OIG still relies on department-wide FOIA policy in certain respects, including HUD’s general provisions for charging fees to requesters.  With respect to the definition of a news media requester, HUD’s regulations do not comport with statutory and judicial authorities.

Although the HUD watchdog concedes it promulgated a flawed FOIA rule, it will not commit to revising its regulations due to the “difficulty” of doing so.  The OIG has instead forwarded CoA Institute’s letter to HUD with the request that the agency-wide regulations be amended.

Unfortunately, HUD issued its own final rule implementing revised FOIA regulations back in January 2017.  When it did so, the agency did not solicit public feedback.  CoA Institute nevertheless submitted a comment to explain the deficiency in HUD’s rule.  That comment went unanswered and, to date, HUD has not indicated any intention of revisiting its flawed rule.  It is promising that the OIG agrees there is a serious deficiency in its regulations.  Considering that acknowledgement, though, the agency should undertake efforts now to fix the obvious error.

Ryan Mulvey is Counsel at Cause of Action Institute

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Government Executive: Senators to Obama: Fill the Inspector General Vacancies

June 3, 2015 by

Read the full story: Government Executive

Nearly every recent scandal and lapse involving inspectors general was mentioned at a Wednesday Senate panel hearing as senators from both parties teamed with transparency advocates to push the White House to accelerate nominations to empty watchdog slots.  The White House, however, sent no one to punch back, despite efforts by the Senate Homeland Security and Governmental Affairs Committee to obtain testimony on delayed nominations from Valerie Green, director of the Office of Presidential Personnel, and her predecessor Jonathan McBride.  “When IG positions remain unfilled, their offices are run by acting IGs who, no matter how qualified or well-intentioned, are not granted the same protections afforded to Senate-confirmed IGs,” said Chairman Ron Johnson, R-Wis. “They are not truly independent, as they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”…

“The disadvantage of being acting IG is you have less credibility because there’s no vetting,” said Danielle Brian, executive director of POGO. “There’s an incentive to curry favor with the agency head to get appointed, and they’re often more lapdog than watchdog.”… Brian joined with Daniel Epstein, executive director of the legal group Cause of Action, in an opinion that the longtime acting State Department Inspector General Harold Geisel, a Foreign Service officer ineligible for the permanent job, might not have vetted Clinton’s unusual email arrangements as a permanent IG would have. “Obama’s decision not to appoint a permanent IG at State may have been political,” Epstein said, since “acting IG’s have the incentive not only to delay but to avoid investigations.”  Epstein said Obama should make use of the recess power of appointments as he has done to fill vacancies on the National Labor Relations Board. “He is able but not willing,” Epstein speculated.

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HHS Inspector General Finds Potential Misuse of Obamacare Federal Grant Dollars

April 29, 2015 by

By: Aram Gavoor

The Inspector General for Health and Human Services, Daniel R. Levinson (HHS IG), sent a letter this week to Centers for Medicare & Medicaid Services (CMS) expressing concern that Obamacare state exchanges (State-based marketplaces or SBMs) may be unlawfully spending federal grant dollars to fund operations.  The HHS IG identified the issue in the midst of audits of establishment or startup grant monies disbursed to SBMs.

The violation of the law is under Section 1311(a) of the Affordable Care Act (ACA), which requires that since January 1, 2015, SBMs must be self-sustaining.  According to the HHS IG: “We have concerns that, without more detailed guidance from CMS, SBMs might have used, and might continue to use, establishment grant funds for operating expenses after January 1, 2015, contrary to law.”

This is not, however, the first time that ACA grant funds have potentially been misused.

In September 2014, Cause of Action exposed the fraudulent misuse of Navigator grant funds by Southern United Neighborhoods (SUN) in light of allegations that United Labor Unions Local 100 (ULU), a federal subgrantee of SUN, directed an ACA navigator, paid with federal grant funds, to recruit members for ULU in Texas.

In a letter to the HHS IG requesting an investigation and audit of SUN, Cause of Action explained that a former employee of SUN filed a class action lawsuit in which he sought damages for unpaid overtime for himself and other putative class members under federal labor law.  He alleged that SUN and ULU shared control of the terms and conditions of his Navigator duties, and that he was directed by the labor union to recruit new ULU members by engaging cafeteria workers at schools in the course of his ACA work.  OMB Circular A-133 and relevant HHS regulations mandate that federal grand funds may only be used for approved programmatic purposes, which does not include such behavior.

Cause of Action is cautiously optimistic that SUN and ULU will be held accountable for their potential misuse of ACA grant money.  The HHS IG recently sent a letter to Cause of Action, confirming that there is an “open and ongoing investigation concerning this matter.”  Both of these instances evince the need for the HHS IG to conduct a robust investigation/audit into the misuse of Obamacare funds.

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Washington Examiner: Inspector general found lots of personal email use in Clinton’s State Department

March 5, 2015 by

Read the full story: Washington Examiner

The State Department’s inspector general has uncovered a dozen instances of illegal email usage since 2010, revealing a pattern of email abuse that emerged in the years when Hillary Clinton was Secretary of State.

 

“Not only did former Secretary Clinton violate record-retention policies, she failed to effectively manage her department, leading to a pattern of neglect for the law by State Department employees,” said Daniel Epstein, executive director of the Cause of Action government watchdog non-profit, which compiled the reports.

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Cause of Action Supports Congressional Efforts for an Inspector General over the Affordable Care Act

September 17, 2014 by

FOR IMMEDIATE RELEASE                                                                            CONTACT:      

September 17, 2014                                               Mary Beth Hutchins, 202-400-2721

Cause of Action Supports Congressional Efforts for an Inspector General over the Affordable Care Act

CoA Sends Letter of Support for Special Inspector General for Monitoring the Affordable Care Act of 2014, H.R. 4158

WASHINGTON – Cause of Action (CoA), a government oversight group, sent a letter today supporting legislation establishing an Inspector General who will monitor the implementation and administration of the Affordable Care Act. SIGMA, the Special Inspector General for Monitoring the Affordable Care Act of 2014, is sponsored by Rep. Peter Roskam and has been referred to the House Education and the Workforce’s Subcommittee on Health, Employment, Labor, and Pensions.

CoA’s letter states in part:

The Affordable Care Act (“ACA” or “Obamacare”) is a deceptively complex and non-transparent law that has created one of the largest government bureaucracies in decades.  The American public already has seen countless problems with the implementation of various aspects of this law, and little has been done to address the risks of waste, fraud and abuse of the hundreds of millions of taxpayer dollars that states are receiving to run their exchanges or marketplaces.  By authorizing a Special Inspector General to focus on monitoring ACA, the SIGMA Act of 2014 has the potential to curb waste, fraud, and abuse. If done properly – by utilizing a robust inspector general who acts independently from HHS and the officials in charge of implementing the ACA – this approach should, in turn, lower health care costs for taxpayers.

You can read the full letter here.

About Cause of Action:

Cause of Action is a non-profit, nonpartisan government accountability organization that fights to protect economic opportunity when federal regulations, spending and cronyism threaten it. For more information, visit www.causeofaction.org.

To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins, mary.beth.hutchins@causeofaction.org

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