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03/12/2019

Shining a Light on Agency FOIA Policies that Contradict the Law

Some agencies have regulations that conflict with the Freedom of Information Act (FOIA), which can lead to confusion for officials and the public, as well as the improper withholding of public information.  For instance, a few agencies still base their definition of a “representative of the news media” on language that is outdated and contradicted by both the FOIA statute and judicial authorities.  The old “organized and operated” standard that certain agencies have left in their regulations can be used to deny preferential fee treatment to nascent or non-traditional news media groups, as well as government watchdog organizations like Cause of Action Institute (CoA Institute).  The current statutory definition, by contrast, is meant to broaden the universe of requesters qualifying for the news media fee category.

In Cause of Action v. Federal Trade Commission,  a monumental decision in 2015 that resulted with an appellate court victory for Cause of Action Institute, the U.S Court of Appeals for the D.C. Circuit struck down the Federal Trade Commission’s outdated and narrow definition of a “representative of the news media” and confirmed the current statutory standard.  The FTC had tried to deny CoA Institute its proper fee categorization and a public interest fee waiver.

In March 2018, CoA Institute submitted a comment to the Millennium Challenge Corporation (MCC), a small agency tasked with delivering foreign aid to combat global poverty, on the agency’s proposed rule revising its FOIA regulations.  Among other things, CoA Institute suggested that the MCC correct its definition of a “representative of the news media.” In July of that year, MCC finalized a rule implementing the recommended revisions and taking a step towards effective and transparent oversight.  CoA Institute has had similar success with FOIA reform at other agencies, including the Consumer Product Safety Commission, Office of the Special Counsel, U.S. Department of Defense, U.S. Agency for International Development, and the U.S. Department of Homeland Security.

This is but one example of the work CoA Institute performs to advance government transparency and protect the rights of the American public, taxpayers and our collective ability to hold our government accountable for its actions.

Matt Frendewey is Director of Communications at Cause of Action Institute.

 

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03/11/2019

Cause of Sunshine – Day One of Sunshine Week

Today marks the beginning of Sunshine Week, a nationwide celebration of government transparency and accountability.

Since our founding, Cause of Action Institute has been at the forefront of government transparency, using the Freedom of Information Act (FOIA) to shed “sunshine” on the inner workings of our local, state and federal government. As fundamental as our right to vote, an open and transparent government is necessary to ensure the health of our democracy.

The hard work of our investigators and lawyers has resulted in public officials caught violating the law, government policies and procedures, and our litigation and public reports have improved the public’s right to understand and see how their government operates.

This week, we’ll highlight some of Cause of Action’s most important FOIA and open government cases, recommended reforms to the existing law, and highlight some of our ongoing investigations as we demonstrate our commitment to ensuring the economic and individual rights of tax payers remain protected from the administrative state.

Matt Frendewey is Director of Communications at Cause of Action Institute.

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03/7/2019

Records Show Former FBI Chief of Staff Sent White House National Security Council Documents to Personal E-mail Account

Former FBI Chief of Staff James Rybicki forwarded a White House-originated e-mail with a draft speech for then-President Obama to a personal e-mail account in December of 2015. The FBI withheld in full the content of the draft speech after consulting with the White House National Security Council about its release. The e-mail was part of the last production of FBI documents in Cause of Action Institute’s FOIA litigation against the FBI regarding the work-related use of personal e-mail accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki.

The final FBI production also includes e-mails from former Drug Enforcement Agency (DEA) Administrator and FBI Chief of Staff Chuck Rosenberg, who repeatedly used a private e-mail account for official business in conversations with former FBI Director James Comey.
It’s concerning to see high ranking officials violating government policies – setting a poor example to those they’re responsible for supervising and undermining the public trust that all public business can be properly archived and disclosed. When public officials conceal their work – the economic and individual rights of taxpayers is at risk, which is why Cause of Action remains vigilant and committed to holding all government officials accountable.

You can view and download the documents from this production here:

The first document production can be viewed here, the second here, and the third here.

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



Final Release Fourth Production 2 28 2019 (Text)

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03/5/2019

Federal Court Rules Agency Actions within Congressional Review Act Subject to Judicial Review

In a positive decision that will be felt throughout the federal government, the United States District Court for the District of Idaho recently ruled that agency compliance with the Congressional Review Act (CRA) is subject to judicial review. First signed into law in 1996, the CRA requires that agencies submit new and amended rules to Congress for review, creating an essential check on the increasingly powerful administrative state. The CRA was used effectively in the first year of the Trump Administration to overturn numerous Obama Administration rules. But language in the CRA raises a question about whether courts can review agency compliance.

In this case, a cattle-ranching operation based in Oakley, Idaho was adversely affected by the Bureau of Land Management (BLM), the Department of Agriculture, and the Forest Service’s controversial amended rules regarding land use in 11 western states, including Idaho. The ranchers alleged that because the agencies never properly submitted the land use amendments to Congress, the agencies violated the CRA. In an attempt to evade oversight that could potentially limit agency power, the government argued that the ranchers’ motion should be dismissed, claiming that an agency’s violations of the CRA are not subject to judicial review and thus, the Court lacks jurisdiction. The district court rejected the government’s argument, stating that “such un-checked authority does not make sense, defeats the general purpose of the act, is contradicted by the legislative history, and ultimately leaves third parties without any remedy at law against violations of the act itself.”[1] If the Court had ruled that agency compliance with the CRA is not subject to judicial review, it would have opened the door for agencies throughout the federal government to ignore the law’s constraint on their authority.

This case is not the only instance where government agencies have avoided complying with the CRA. In 2017, Cause of Action Institute released a list of 835 economically significant rules and regulations that appeared in the Federal Register but were not submitted to Congress, as required by the CRA. As Congress continues to delegate more and more authority to agencies, it is crucial that the CRA is used to ensure that agencies aren’t abusing their power and risking Americans’ economic freedom and prosperity. By recognizing that judicial review exists, this decision will require agencies to be accountable for their actions and will hopefully encourage them to submit all proposed rules to Congress for review.

 

Libby Rudolf is a litigation support analyst at Cause of Action Institute.

 

[1] Tugaw Ranches, LLC v. United States Department of Interior, et al., 2019 WL 938865 (D. Idaho 2019)

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03/1/2019

D.C. Court of Appeals Puts Free Speech, Media at Risk

Court refuses to rehear anti-SLAPP decision, exposing media outlets and nonprofits to defamation lawsuits

After a lengthy two-year delay, today the D.C. Court of Appeals denied the Competitive Enterprise Institute’s (“CEI”) motion for rehearing en banc asking the full court to review a decision that will expose media and nonprofit organizations throughout D.C. to lawsuits claiming their stories and commentary are defamatory.

The original decision arose from a lawsuit filed by Michael Mann, a climate scientist embroiled in the scandal to “hide the decline” in the Earth’s temperature record, against CEI and others who criticized his work.  CEI moved to dismiss the case under D.C.’s Anti-SLAPP statute, a law designed to prevent frivolous lawsuits that are used to harass people exercising their free-speech rights; in this case, their First Amendment right to debate important issues of public policy.  The D.C. trial court refused to dismiss the lawsuit, and CEI appealed.  The appellate court upheld the initial ruling and refused to dismiss the case.

CEI then moved for rehearing en banc and dozens of amici from across the ideological spectrum urged the D.C. Court of Appeals to rehear the case because of the significant impact on First Amendment rights and the huge amount of public policy debate that occurs in the District.  Cause of Action Institute filed one of those amicus briefs on behalf of Dr. Judith Curry, a climate scientist who Michael Mann has consistently harassed using methods similar to those he complains CEI used against him.  Today, the court refused to rehear the case, without a single judge asking for rehearing.  The court’s decision in effect declares open season on media and nonprofit organizations located in the District of Columbia.

It would appear the two options available to CEI now are either to ask the U.S. Supreme Court to hear the case or to go back to the trial court and fight the case on the merits.

James Valvo is counsel and senior policy advisor at Cause of Action Institute.

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02/19/2019

Cause of Action Institute Sues VA for Failing to Release Documents Concerning Tomah Medical Center

2017 Pharmacy Malfunction Could Have Put Veterans Lives At-Risk

Washington, D.C. (Feb. 19, 2019) – Cause of Action Institute (CoA Institute) today filed a lawsuit against the U.S. Department Veteran Affairs for failing to properly respond to a Freedom of Information Act (FOIA) request relating to the scandal-ridden Tomah VA Medical Center. The FOIA request, filed more than a year ago, concerned pharmacy operations that could have put countless veterans’ lives at risk.

John Vecchione, president and CEO of Cause of Action Institute:

“Our nation’s veterans deserve the utmost care and respect, and news reports of the Tomah VA Medical Center’s pharmacy center distributing potentially spoiled medicines are deeply concerning. Our veterans and taxpayers demand full transparency about existing and previous challenges concerning this facility and the services the Tomah VA provides to our veterans. Cause of Action Institute is dedicated to exposing corruption and holding government officials accountable, and ensuring our veterans receive the care, concern, and respect they deserve.”

Background:

In 2018, Cause of Action Institute submitted a FOIA request to the Tomah VA Medical Center after news reports indicated the center’s outpatient pharmacy center had suffered a “climate-control malfunction” resulting in temperatures in the facility housing medication reaching “97 degrees for at least an hour.” The high temperatures at the facility led to spoilage of the pharmacy’s medical stock, but VA officials continued to distribute medicine “for about four hours.” CoA Institute submitted a FOIA request for all records concerning the failure of the climate control system, as well as efforts to investigate the improper dispensing of potentially damaged medicines.

In May 2018, the VA Great Lakes Health Care System, which oversees the Tomah VA Medical Center, responded to CoA Institute’s FOIA, but withheld and redacted countless documents. CoA Institute filed a timely appeal on Aug. 6, 2018, explaining that the agency had “improperly relied on Exemptions 3, 5, and 6; failed to segregate non-exempt material from responsible records; failed to meet its burden under the FOIA’s “foreseeable harm” standard; improperly redacted portions of records as “non-responsive”; and failed to conduct an adequate search for responsive records.”

To date, the VA has failed to respond to the appeal despite numerous attempts to remind the agency of its statutory responsibility to respond in a timely manner.

Additional Documents:

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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, media@causeofaction.org 

 

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02/19/2019

Cause of Action Institute Files FOIA Requests for Commerce’s Section 232 Auto-Tariff Report

Washington, D.C. (Feb. 19, 2019) – Cause of Action Institute (CoA Institute) filed two Freedom of Information Act (FOIA) requests seeking a copy of the Department of Commerce (Commerce) Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed automobile tariffs. The Administration has recently stated that it will not make the report public and has no obligation to do so.  CoA Institute disagrees and filed FOIA requests so that the public can see the report.

“The public has a right to see the Commerce report that purports to justify the Administration’s escalating tariffs, which are nothing more than taxes on American consumers,” said CoA Institute Director of Investigations Kevin Schmidt. “A 25 percent tariff on imported cars and automobile parts will harm American consumers and businesses and is likely to provoke retaliation from our trade allies. Cause of Action Institute intends to use all avenues available to ensure that this report is released to the public, including litigation if necessary.”

The Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts will provide recommendations for the Administration’s proposal to impose a 25% tariff on imports of cars and car parts. CoA Institute sent requests to both the Department of Commerce and the Bureau of Industry and Security for a copy of this report.

Background:

Documents:

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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.

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