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CoA Institute Case Study on the CFPB’s Arbitration Rule: How the Bureau Evaded Scientific Guidelines and Bypassed Peer Review—And How to Fix It

 

Executive Summary

The Consumer Financial Protection Bureau (“CFPB” or “Bureau”) is an agency unlike most any other in the history of the United States.  It possesses untold power over the American people and businesses, and the heft of this power is in a single agency director accountable to no one.  As Judge Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit held in a since-vacated decision, “the Director enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President.”[1]

In the Dodd-Frank Act of 2010, Congress delegated to the CFPB the power to regulate, if necessary, mandatory-binding arbitration clauses in consumer financial contracts.  This power came with an important caveat: the CFPB must first conduct a study on the effect arbitration clauses have on consumers, and any regulation promulgated by the agency must be based on that study.  Yet the CFPB already had the goal in mind to regulate and ban these arbitration clauses, driven largely by internal bias and promoted by third-party interests.  Instead of conducting an objective study backed by peer review, the agency sought a pre-determined result, abusing junk science and methodology to get there.  In doing so, it ignored the requirements of the Information Quality Act (“IQA”) and the ensuing Office of Management and Budget (“OMB”) bulletin requiring agency peer review.  This paper examines the failings of the arbitration study and offers solutions to the potential new agency head to ensure future policy is informed by sound science.

Recommendations

The best way to curtail the CFPB’s abuse of junk science is to force the agency to follow the standards contained within the IQA and the OMB peer review bulletin.  If the CFPB were to strictly adhere to the IQA’s standards of data quality—objectivity, integrity, and utility—and conduct rigorous, academic peer review, outcomes like the one detailed in this paper would be avoided.

Cause of Action Institute (“CoA Institute”) recommends that the new CFPB Director, once confirmed, immediately institute rulemaking actions to codify these already-mandatory requirements of the IQA and peer review.  This should apply to all studies or scientific findings released by the agency, whether they undergird a rule or not.[2]  Although the Director could just order agency personnel to follow these directives through a memorandum, that would only be a temporary solution.  Rulemaking under the Administrative Procedure Act (“APA”) would ensure that these science-based requirements have more permanence and apply regardless of who is running the agency five years from now.[3]  Furthermore, the new Director should require, whether through rulemaking or otherwise, that all published scientific findings be accompanied by full disclosure of outside datasets, sources, and lobbying.

Eric Bolinder is Counsel at Cause of Action Institute

[1] PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 7 (D.C. Cir. 2016), vacated on reh’g en banc, 881 F.3d 75 (D.C. Cir. 2018); see Consumer Fin. Prot. Bureau v. RD Legal Funding, LLC, No. 17-890, 2018 WL 3094916, at *35 (S.D.N.Y. June 21, 2018) (“Respectfully, the Court disagrees with the holding of the en banc court and instead adopts Sections I-IV of Judge Brett Kavanaugh’s dissent[.]”).
[2] This, of course, would extend to any scientific findings that are part of a proposed rule.
[3] A future Director could institute rulemaking to reverse the requirements, but that is a cumbersome process subject to judicial review.

 

07/19/2018 Learn More

CoA Institute Sues OMB, Compelling it to Take Transparency Policy Seriously

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. One petition for rulemaking focused on the OMB’s outdated Freedom of Information Act fee guidelines while the other focused on an executive order related to earmarking. 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 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).

11/2/2017 Learn More

Defining a “Record” under FOIA

The Freedom of Information Act has provided the public with access to federal agency records since the mid-1960s.  As hard as it may be to believe, the definition of a “record” is still not established.  There has been a great deal of litigation over the definition of an “agency record” (as opposed to, for example, a congressional record or a personal record), as those are the only types of records that are accessible through FOIA.[1]  But the antecedent question—what exactly is a “record”—has not been litigated.

The U.S. Court of Appeals for the D.C. Circuit recognized this gap in its important decision last year in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).[2]  In that case, the circuit court held that agencies may not use “non-responsive” as a redaction tool to withhold information within an otherwise responsive record.  I discussed that issue in a previous post titled There is No Tenth Exemption.  The circuit court, however, did not define a “record” in that case.

Cause of Action Institute filed a FOIA request with the Department of Justice (“DOJ”) to determine how it would respond to AILA and how it would attempt to define a “record.”  We asked for an email chain that the agency had previously produced to us with most of the information redacted as non-responsive.  In making this second request, we specifically asked for the entire email chain and drew the DOJ’s attention to the AILA decision.  Instead of removing the offending “non-responsive” redactions, however, the DOJ contended that each email in the chain—and in fact each header of each email—was a separate record.  The agency then withheld those supposedly separate records as “non-responsive.”  Compare the full original here and the full re-produced record here.  This approach makes a mockery of AILA; so we filed suit.  

Today, CoA Institute filed its Cross-Motion for Summary Judgment arguing among other matters that the DOJ’s approach to defining a record is untenable.  The DOJ has taken the position, in recently issued guidance from its Office of Information Policy, that the interplay between the subject matter of the request and the content of agency documents define the “nature of a FOIA record” in response to that request.  The agency’s position, in other words, is that a FOIA record is defined—indeed, that the “record” comes into being—through the process of reading and interpreting a request and then searching for and analyzing agency documents to find those portions that contain responsive information.

As we note in our Cross-Motion (pages 25-28), this approach has several problems.  First, it has no basis in the statute.  Second, it conflicts with the rule that requesters may only seek access to records that are already in existence when the request is submitted.  Third, it means that the same, single document could be one record in response to one request, but ten records in response to another.  Finally, it conflicts with one of the venue provisions in FOIA’s judicial review section, rendering it a nullity.

CoA Institute instead proposed its own definition of a record (pages 22-25) that is based on the statute, harmonizes with existing FOIA statutory and case law, and promotes disclosure.  Our approach takes into account that agencies already have material containing information (whether documents, video files, electronic files, etc.) in their control before a request is submitted, that this material exists in a particular form and format, and that agencies must disclose such material as a unit whenever the informational content is responsive to a request (subject to FOIA’s nine exemptions, of course).  Thus, our “complete and proper definition of a ‘record’ under the FOIA is (1) any material containing information, (2) created or obtained by an agency, (3) within an agency’s control when a request is submitted, and (4) in its full native form and format as maintained by an agency at the time of a request, ‘i.e., as a unit’” (page 25).

We also urged the court to continue the practice of denying agencies any deference to their interpretations of FOIA’s statutory terms (pages 19-21).

Click here for the complete filing.

Click here for There is No Tenth Exemption, a previous post in this series.

Update: On October 10, 2017, the district court found the case was moot and did not reach the underlying issues discussed in this post.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

 

[1] See Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).

[2] 830 F.3d 667 (D.C. Cir. 2016).

02/8/2017 Learn More

USAID Adopts CoA Institute’s Proposals in New FOIA Regulations

The U.S. Agency for International Development (“USAID”) finalized new Freedom of Information Act (“FOIA”) regulations today, accepting two revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted in October 2016.

CoA Institute had made two recommendations in response to USAID’s proposed rulemaking.  First, we urged the agency to remove outdated “organized and operated” language from its definition of a “representative of the news media.”  Such language was used in the past to deny fee waivers to organizations like CoA Institute that investigate potential agency wrongdoing.  For example, we had to take the Federal Trade Commission all the way to the D.C. Circuit to get the agency to acknowledge that the agency’s FOIA fee regulations were outdated and that it was improperly denying us a fee reduction.

In deciding the case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases.  CoA Institute cited this case to USAID in its comment and the agency took heed of the current case law, removing the outdated language from its regulations.

CoA Institute also recommended revising the procedures for conducting consultations.  Consultation takes place whenever USAID locates records that might have originated with or implicate the equities of another government entity.  The process is supposed to ensure that exempt material is properly redacted from records prior to disclosure.  We were concerned that USAID had failed to set parameters for determining when consultation were appropriate.  We also asked USAID to adopt a requirement to notify requesters whenever their requests are subject to consultation and to tell requesters which agency is being consulted.

USAID responded favorably to these recommendations.  It adopted our proposed limitation of consultation to instances where another agency or component has a “substantial interest” in responsive records.  Further, the agency accepted our proposed notification requirement.  The agency failed, however, to adopt our definition of “substantial interest.”  This failure leaves room for future improvement in USAID’s FOIA regulations, as it is unclear how USAID will interpret this term.

CoA Institute’s successful comment is just another small step in our efforts to provide effective and transparent oversight of the administrative state.

12/22/2016 Learn More

Cause of Action Institute Investigates Arizona Electrical Market

Cause of Action Institute is investigating the battle for retail market share in Arizona between electric power for consumers and businesses regulated and controlled by the Arizona Corporation Commission (“ACC”), and rooftop solar competition, including competition from SolarCity Corp., (“SolarCity”). The ACC is a quasi-executive regulatory agency in the Arizona state government. It is Arizona’s state regulatory body for non-municipal utility companies, including energy, heat, trash, water and communications firms. The ACC also oversees the incorporation of businesses, securities regulation and railroad/pipeline safety.

SolarCity provides technologies for mounting solar panels on rooftops developed by Zep Solar, which it acquired in 2013. Zep is best known for inventing a system that allows solar photovoltaic installers to join panels on the roof more quickly than other installation approaches to shorten installation time. SolarCity was co-founded in 2006 by brothers Lyndon Rive (CEO) and Peter Rive (CTO). Their cousin is Elon Musk, who serves as SolarCity’s Chairman. On August 1, 2016, SolarCity accepted Tesla Motors’ (Musk’s car company) offer to acquire the company for $2.6 billion. As of August 2016, Musk owned 22% of SolarCity stock.

Cause of Action Institute is seeking records and information regarding the FBI’s long-term, ongoing investigation of the financing of certain Arizona statewide electoral races in the 2014 election cycle, and the Arizona Public Service (“APS”), which spent unprecedented millions of dollars over the last three years to allegedly influence the regulators on the ACC. Additionally, CoA Institute is examining the relationship(s) between the Checks and Balances Project of Arizona (“CBP”), SolarCity, Save Our AZ Solar, Energy Choice for America, Renew American Progress, and Elon Musk, including but not limited to, the Bureau’s interactions with Scott Petersen of CBP, and former ACC Commissioner Gary Pierce, as well as any White House involvement in the FBI investigation’s genesis.

You can read the Cause of Action Institute FOIA request here.

Patrick Massari is Counsel at Cause of Action Institute

10/5/2016 Learn More

Cause of Action Institute Investigates Private Meeting Between Bill Clinton, Attorney General

Washington, DC – Cause of Action Institute (CoA Institute) filed a Freedom of Information Act (FOIA) request for information surrounding the recent private meeting between Attorney General Loretta Lynch and President Bill Clinton that occurred on June 27, 2016 at the Phoenix airport, just days before the FBI announced it would not recommend charges against former Secretary of State Hillary Clinton. The Department of Justice (DOJ) apparently attempted to keep the meeting secret, as reporters on the ground were told: “no photos, no pictures, no cell phones.” 

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “A private meeting between President Bill Clinton and Attorney General Loretta Lynch raises serious concerns about impartiality at the Department of Justice. Today’s announcement that the FBI will not recommend pursuing charges against Hillary Clinton does not remove the public interest in knowing what was discussed.”

To understand the purpose of this meeting, Cause of Action Institute has requested all records, transcripts, or recordings of the meeting as well as the Attorney General’s schedule for June 26 – 28, 2016, including but not limited to pre- and post-meeting email which concern the meeting in any way.

The full FOIA request is available HERE

07/5/2016 Learn More

Cause of Action Institute Investigates Terms of $14 Million Contract Between CFPB and Political Ad Firm

Washington, DC – Cause of Action Institute (CoA Institute) sent a Freedom of Information Act (FOIA) request to the Consumer Financial Protection Bureau (CFPB) for information surrounding a recent contract worth an estimated $14 million with GMMB, Inc., a powerful media consulting shop. GMMB, Inc. has produced partisan political ads for numerous high-profile campaigns, including for President Obama and Hillary Clinton.

“CFPB is a federal agency engaged, as part of its consumer protection responsibilities, in substantial consumer information collection activities,” wrote Alfred J. Lechner, Jr. Cause of Action Institute President and CEO and a former federal judge. “Given GMMB’s partisan political clients, CoA Institute is concerned about the nature of and safeguards applied to any CFPB information supplied to or received from GMMB.”

Recent empirical data show political favoritism in federal contract awards. Given GMMB, Inc.’s statement that the CFPB contract covers costs for “independent research on messaging and demographic targeting,” Cause of Action Institute seeks to confirm that appropriate firewalls are in place to ensure that American taxpayers are not subsidizing political coordination.

“Firms contracted by campaigns should not and cannot be using information garnered by federal agencies to support political causes,” the letter states.

CoA Institute requests information about the contract, all communications between CFPB and GMMB, Inc., as well as any consumer data CFPB may have shared, including consumer lists, individual addresses, and targeted advertising.

Related

WSJ_Financial_Reg

Group Asks CFPB for Details of Ad Campaign
Nearly all of the federal agency’s advertising dollars are going to GMMB Inc.

Read more HERE

 

06/16/2016 Learn More