A Federal Agency Spent Years Fighting to Uphold These Ridiculous Redactions

“11:45 is fine, will be at my desk”

“With the retirement of EXIM Bank’s former Chief Information Security Officer (CISO), EXIM Bank hired a new CISO.”

These are just two lines of innocuous text the Export-Import Bank (“EXIM”) fought to keep redacted in Cause of Action Institute’s (“CoA Institute”) Freedom of Information Act (“FOIA”) lawsuit that began in July 2019. In a final decision released in January 2022, Judge James Boasberg of the U.S District Court for the District of Columbia  ruled that EXIM would finally have to disclose this information after years of stonewalling.

CoA Institute submitted its first FOIA request to EXIM on September 20, 2018 seeking communications with its largest stakeholders and beneficiaries.  It followed-up with a second request in May 2019 seeking information about a Government Accountability Office report that found EXIM failed to use a readily available federal database to ensure it was not financing companies with delinquent federal debt.

We previously covered Judge Boasberg’s first ruling that EXIM would have to disclose records in February 2021. Discussing records regarding EXIM communications with the GAO, Judge Boasberg expressed marked displeasure with the agency: “Even the briefest in camera review reveals that [the agency’s] description [for why it withheld records] is plainly overbroad and — at least with respect to some of the withheld documents — seemingly inaccurate.”

As we celebrate Sunshine Week 2022, it’s important to remember how FOIA remains an imperfect tool that often requires litigation to get federal agencies to act in a transparent manner. Any FOIA reform must address this problem, particularly as it concerns the use of Exemption 5 and the deliberative-process privilege.

Here are the rest of the overbroad and plainly unjustified redactions EXIM was finally forced to disclose after almost two and a half years of litigation:

Before

 

 

After

 

 

Before

 

 

 

 

 

 

 

 

 

After

 

 

 

 

 

 

 

 

 

 

Before

 

 

 

 

After

 

 

 

 

Read more of CoA Institute’s work on EXIM:

 

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

# # #

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:

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

For decades, the Freedom of Information Act (“FOIA”) has provided the public with access to records of the Executive Branch.  Yet the definition of a “record” has never been definitively established.  To be sure, there has been a great deal of litigation over the meaning of an “agency record” (as opposed to a congressional record or a personal record). But the antecedent question of what exactly a “record” is has only recently started working its way up through the courts.  Cause of Action Institute (“CoA Institute”) filed its opening brief today in the U.S. Court of Appeals for the D.C. Circuit as part of its efforts to get some resolution to this important question.

The current debate of the definition of a “record” can be traced back to the D.C. Circuit’s 2016 decision in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).  The AILA court held that agencies may not use “non-responsive” as a pseudo-exemption to withhold information within an otherwise responsive record.  Unfortunately, the court left the door open to agencies treating that same information as discrete “records.”  Because the court did not provide clarity on the actual definition of a “record,” and merely opined to the possible limits of what a “record” could be, the Department of Justice’s Office of Information Policy (“OIP”) issued guidance purporting to fill that gap.  The legality of that guidance, and its consistency with FOIA, is at the heart of CoA Institute’s appeal.

In its guidance, OIP directs agencies to apply part of the Privacy Act’s definition of a “record” when processing FOIA requests.  That definition, in relevant part, treats any “item, collection, or grouping of information” as a potential record.  Yet OIP goes further and also instructs agencies to define records on a case-by-case basis depending on the subject-matter of an individual FOIA request, as interpreted by the agency.  That sort of subjective understanding of a “record,” which could lead to divergent treatment of the same informational material across the government, or even between components of a single agency, is fatally flawed.

As CoA Institute argues in its opening brief, OIP’s definition is problematic—along with the district court’s failure to invalidate the policy—precisely because the FOIA does define a “record.”  The statutory text, as clarified by Supreme Court precedent, sets out a four-part definition that encompasses (1) any information material, (2) created or obtained by an agency, (3) within an agency’s control when a FOIA request is submitted, and (4) in the format maintained by an agency at the time of a request.  Again, this definition logically follows from the statutory text.

Even if the FOIA were ambiguous, the plain meaning of a “record,” as evidenced by common usage, clearly refers to materials that exist objectively and independent of any given FOIA request.  OIP’s guidance violates this common-sense understanding, just as it violates the well-established legal principle that a requester can only seek disclosure of existing records.  An agency cannot define a “record”—that is, bring it into existence—as part of its efforts to process a FOIA request.  Not only does this confuse a responsiveness review with efforts to search for and identify potential responsive records, but it invites abuse.  Indeed, agencies have already shown their eagerness to treat information formerly withheld as “non-responsive” as discrete records.  That makes a mockery of AILA.  Finally, the Privacy Act, which OIP’s guidance refers to as controlling in the FOIA context, is simply inapt.

Given the confusion in the district court over the correct definition of “record,” it is vital that the D.C. Circuit provide clarity to agencies and requesters alike.  CoA Institute’s argument comports with the statutory text, plain meaning, and existing FOIA caselaw.  OIP’s guidance, if it is allowed to stand, would be a huge blow to transparency and create an incentive for agencies to get even more creative in their efforts to block transparency.

Ryan P. Mulvey is Counsel at Cause of Action Institute.  He is lead counsel in Cause of Action Institute v. Department of Justice, No. 20-5182 (D.C. Cir.), the appeal discussed in this blogpost.  He may be contacted at ryan.mulvey@causeofaction.org.

Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule

Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat

Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate job-killing fisheries regulations called the “Omnibus Amendment.” CoA Institute filed suit in February to challenge the industry-killing rule, which requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” at their own cost.

Learn More