Cause of Action Institute (“CoA Institute”) has sued the White House Office of Management and Budget (“OMB”) for failing to respond to two petitions for rulemaking that CoA Institute submitted to the agency.  These two petitions—both aimed at increasing government transparency—were filed during the Obama Administration but were ignored.  We hope these lawsuits will spur the Trump Administration to action to increase the public’s ability to know what its government is up to.

Petition for Rulemaking on OMB’s Outdated FOIA Fee Guidelines

The Freedom of Information Act (“FOIA”) requires agencies to produce records on a reduced fee schedule if the requester qualifies as a “representative of the news media” or other favored category.  The FOIA requires agencies to issue records free of charge if the information is in the public interest and the requester has a means to distribute it.  Unfortunately, agencies often use these fee provisions as a mechanism to block requesters that are doing rigorous oversight of the agency.

As information technology advanced over the past two decades, Congress recognized that journalism was changing in fundamental ways and that citizen journalists and nonprofit organizations were just as vital to conducting government oversight as the traditional news media.  That’s why, in the Open Government Act of 2007, Congress provided a statutory definition of a “representative of the news media” that expressly noted that “as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.”[1]

But the FOIA also requires OMB to develop and maintain guidelines on FOIA fee issues and it requires agencies to conform their regulations to OMB’s guidelines.  In 1987, OMB issued its one and only guidance document on FOIA fees and in that document it requires “representatives of the news media” to work for organizations that are “organized and operated to publish or broadcast news to the public.”  The Federal Trade Commission (“FTC”) attempted to use this outdated standard against CoA Institute to deny us a preferable fee status and thus drive up the cost of our oversight of that agency.  We took the FTC to the D.C. Circuit and won.  The opinion in that case explained that the “organized and operated” standard was no longer proper.[2]

Yet ten years after Congress changed the statutory standard and two years after the D.C. Circuit directed that the “organized and operated” standard was no longer viable, dozens of agencies still employ it and OMB still has not updated its 1987 FOIA fee guidance.

In an effort to spur OMB to reform its outmoded guidance and to move all agencies toward compliance with the statute, CoA Institute filed a petition for rulemaking with OMB in June 2016.  The agency has not responded to that petition and we were forced to sue to bring the issue to resolution.

Petition for Rulemaking on Executive Order 13457

In 2008, President George W. Bush issued Executive Order 13457 to pressure Congress to reform its profligate earmarking practices.  The order required, inter alia, that executive-branch agencies proactively disclose any attempts by members of Congress or their staff to influence discretionary spending decisions the agencies were making.  President Bush directed OMB to ensure that agencies complied with the order.

Through an investigation, CoA Institute was able to establish that OMB understood Executive Order 13457 to apply to both legislative earmarks (i.e., spending directives in statute and committee reports) and executive branch earmarks (i.e., efforts by outside forces to pressure agencies to make certain spending decisions).  CoA Institute’s investigation also revealed that very few agencies were complying with the order; the Department of Energy was a notable exception.

In an effort to spur the Obama Administration to implement Executive Order 13457, CoA Institute joined with Demand Progress and filed a petition for rulemaking at OMB asking it “to issue a rule ensuring the continuing force and effect of Executive Order 13457, Protecting American Taxpayers From Government Spending on Wasteful Earmarks[.]”  More than two years have passed since we filed the petition and OMB has not responded.

Conclusion

The White House Office of Management and Budget sits at a unique place in the federal administrative state.  It has the opportunity to put in place and require adherence to cross-agency rules that can increase or decrease government transparency.  Ensuring that FOIA fees are not improperly used to block agency oversight and requiring proactive disclosure of congressional attempts to influence agency discretionary spending decisions are two ways OMB can make a difference.  CoA Institute has filed suit today to compel them to take these responsibilities seriously.

James Valvo is counsel and senior policy advisor at Cause of Action Institute.  He was instrumental in crafting both petitions for rulemaking and the lawsuit discussed in this post.  You can follow him on Twitter @JamesValvo.

[1] 5 U.S.C. § 552(a)(4)(A)(ii)

[2] Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015).