Cause of Action Institute Challenges Commerce’s Withholding of Section 232 Uranium Report, Using Policy and Practice of Deferring to White House Disclosure Directives

Last year, Cause of Action Institute (“CoA Institute”) stepped up its ongoing battle with the Department of Commerce (“Commerce”) over disclosure of Section 232 secretarial reports by filing a lawsuit against the agency for failure to respond to Freedom of Information Act (“FOIA”) requests seeking access to a final report concerning the national-security effects of uranium imports.  This past week, CoA Institute filed its motion for summary judgment, laying out the case for Commerce’s failure to meet its FOIA obligations and exposing the infirmities of the government’s privilege claims.

The Constitution grants Congress the sole authority to set tariffs and regulate foreign commerce.  Under Section 232 of the Trade Expansion Act of 1962, Congress delegated some of that authority to the President by allowing him to adjust tariffs to safeguard national security.  But, as a part of the delegation, Congress requires the Secretary of Commerce to conduct an independent investigation and prepare a report with findings and recommendations for the President.  The law is clear that, upon disposition of a secretarial investigation, the Secretary’s final report is to be published in the Federal Register with redaction of only “classified\” or “proprietary” information.

Although Commerce published Section 232 reports on steel and aluminum shortly after their transmission to the White House, the agency has stonewalled disclosure of the reports on uranium, titanium sponge, and automobiles.  CoA Institute already is engaged in lengthy litigation concerning release of the automobiles report.  That lawsuit, coupled with a disclosure mandate Congress added to recent appropriations legislation, has met with unprecedented resistance from the Executive Branch.  As described in a previous post, the Department of Justice’s Office of Legal Counsel (“OLC”) has taken the remarkable step of publishing a memorandum opinion arguing that Section 232 reports are protected by executive privilege until the President decides otherwise, and any attempt to force disclosure under Section 232 or another legal mechanisms is effectively unconstitutional.  Congress has not stood idly by.  First, it included language in an appropriations bill requiring immediate publication of the auto report, which Commerce ignored.  Second, last month a bi-partisan coalition of eight U.S. Senators filed an amicus brief to support CoA Institute’s position and defend Congress’s authority to condition its delegation of tariff authority on the public release of secretarial reports.

Commerce’s adoption of the OLC Opinion, and its admissions in the pending lawsuit over release of the uranium report, are troubling.  As CoA Institute explains in its recent motion, Commerce’s declarants have explicitly admitted that the agency will withhold Section 232 secretarial reports in full under the presidential-communications and deliberative-process privileges until directed otherwise by the President.  Not only are these privileges unavailable, but Commerce’s categorical policy of keeping Section 232 reports secret, coupled with the outsourcing of FOIA decision-making to the White House, runs afoul of well-established legal principles.  The withholding of the uranium report is moreover unjustified because the President has explicitly disavowed action under Section 232.

The current Administration has kept the public largely in the dark about its tariff policymaking, endangering the interests of consumers and businesses alike.  Secretarial reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.  This is precisely why Section 232 was designed to require their publication before the President takes any sort of action to adjust imports.  Vague and novel claims about “executive privilege” are inadequate to overcome the clear obligation to disclose secretarial reports.

Ryan P. Mulvey is Counsel at Cause of Action Institute

CoA Institute Joins Coalition Supporting Transparency and Public Access During Coronavirus Emergency

Today, Cause of Action Institute joined the National Freedom of Information Coalition and 130 other organizations in a statement urging government transparency during the current coronoavirus emergency.

At all times, but most especially during times of national crisis, trust and credibility are the government’s most precious assets. As people are asked to make increasing sacrifices in their daily lives for the greater good of public health, the legitimacy of government decision-making requires a renewed commitment to transparency.

In times of crisis, access to information is vital to protecting public health and the people’s rights. As federal, state, and local governments implement emergency measures, they should make every effort to commit to transparency throughout this process.

Read the letter here.

Gone in an Instant: How Instant Messaging Threatens the Freedom of Information Act

New Report: Federal Agencies Violating Federal Law,  
Not Preserving Instant Messaging Records

Arlington, VA (March 16, 2020)Cause of Action Institute (“CoA Institute”) and Americans for Prosperity Foundation (“AFPF”) today released an investigative reportGone in an Instant: How Instant Messaging Threatens the Freedom of Information ActThe report reveals how numerous federal agencies are violating federal records law and guidance from the National Archives by not preserving instant messaging (“IM”) records. Like email in the 1990s, IM’s increasing integration into the workplace is changing the way people do business. In 2014, Congress amended the Federal Records Act to specifically require that electronic messages be retained. Agencies’ failure to preserve records created on IM platforms (Slack, Teams, Hangouts, etc.), which are prevalent in the workplace, threatens to undermine the Freedom of Information Act (“FOIA”) and put much of the federal government in the dark.  

The report scored IMrecordsmanagement practices of more than two dozen agencies and only four received passing scores: Federal Communications Commission, Council of the Inspectors General on Integrity and Efficiency, Department of Agriculture, and National Aeronautics and Space Administration. Nine agencies received a middling grade of needs improvement and thirteen agencies received a “poor” gradeFourteen agencies did not produce records in response to the investigation and were not graded.  

AFPF Chief Policy Counsel and CoA Institute Executive Director James Valvo issued the following statement: 

Retaining government records in a searchable system is fundamental to transparency, allowing journalists, citizen watchdogs, and the general public to oversee what their government is doingWith the use of instantmessaging platforms in the workplace, it is troubling that only four agencies have acceptable policies to preserve records, as required by the Federal Records ActThis report should serve as a wakeup call for Congress and federal agencies to take decisive action to ensure agencies are complying with federal law. 

Key Findings from the Report: 

  • Thirteen of the sixteen agencies that produced their IM policies do not preserve instant messages as a matter of policy—a violation of federal law and NARA guidance. For example: 
  • The General Services Agency declared in a memo that the instant messaging platform it uses, Google Hangouts, “would not be considered a system of record. Therefore, GSA-IT should set the History feature to off for the GSA.gov domain. 
  • The Department of Labor’s records management program, dated 2017, contains a single sentence regarding IM policy: “NOTE: At this time DOL has determined Instant Messaging will not be used to create records.” 
  • Only three agencies produced records reflecting policies to automatically preserve IMs, a commonly available feature on most instant-messaging platforms. 
  • Of the twenty agencies that produced their policies for employee use of IM, thirteen allow its use but prohibit employees from creating or sending an official record through IM and three ban IM use altogether. Prohibiting IM use to conduct business is unrealistic and contrary to NARA guidance. 
  • Many agencies have not incorporated the 2014 Presidential and Federal Records Act Amendments and subsequent NARA guidance into their records management policies. 
  • Agencies are shirking their responsibility to manage IM records by prohibiting the use of instant messaging or erroneously claiming instant messages are insignificant and do not need be saved. 
  • Only ten of the twenty-five agencies that responded to our FOIA requests could produce records of instant messages. 

Read the full report HERE. 

# # # 

Media Contact: briggs@standtogether.org 

About Americans for Prosperity Foundation 

Americans for Prosperity Foundation is a 501(c)(3) nonprofit organization committed to educating and training Americans to be courageous advocates for the ideas, principles, and policies of a free and open society. 

 

About Cause of Action Institute 

Cause of Action Institute is a 501(c)(3) nonprofit, nonpartisan government oversight organization that uses investigative, legal, and communications tools to educate the public on how government accountability, transparency, the rule of law, and principled enforcement of the separation of powers protects liberty and economic opportunity. 

Family Fishermen Challenge Illegal, Industry-Killing At-Sea Monitoring Rule from Department of Commerce

Arlington, VA (Feb. 19, 2020) – Cause of Action Institute (“CoA Institute”) today filed a lawsuit on behalf of a group of New Jersey family fishermen to block a new regulation that would force them to pay for third-party “at-sea monitors.”  The industry-killing rule—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic and Atmospheric Administration and U.S. Department of Commerce—will require certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at their own cost. Learn More

Commerce Department Ignores Congressional Mandate to Release Auto Tariffs Report, Citing New OLC Opinion on Executive Privilege

Last year, Cause of Action Institute (“CoA Institute”) filed two Freedom of Information Act (“FOIA”) requests for a copy of the Secretary of Commerce’s final report to the President under Section 232 of the Trade Expansion Act of 1962 regarding the national security impacts of the importation of automobiles.  That report, which must be prepared prior to the imposition of tariffs, is required by law to be published in the Federal Register, subject only to redaction for classified and proprietary information.  After Commerce failed to publish the report, and refused to release it under the FOIA, we filed a lawsuit to compel disclosure. Learn More

Cause of Action Institute Files Appeal with D.C. Circuit to Secure FOIA Access to Internet Browsing History Records

Arlington, VA (Jan. 16, 2020) – Earlier this week, Cause of Action Institute (“CoA Institute”) filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action Institute v. White House Office of Management and Budget, a Freedom of Information Act (“FOIA”) lawsuit concerning access government officials’ Internet browsing histories.  The appeal seeks to overturn the district court’s determination that such records are outside the scope of disclosure, even when they are created on government-issued computers in the course of official business.  CoA Institute field the underlying lawsuit against the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) in June 2018.

Learn More

Cause of Action Institute Files Transparency Lawsuit Against California State Controller on behalf of OpenTheBooks.com

Arlington, VA (Jan. 16, 2020) – Last week, Cause of Action Institute (“CoA Institute”) filed a California Public Records Act lawsuit against the California State Controller on behalf of its clients, OpenTheBooks.com and Adam Andrzejewski.  The lawsuit seeks to compel the agency to release records concerning state spending information, including records reflecting line-by-line vendor payments.  OpenTheBooks.com, founded and led by Mr. Andrzejewski, is the largest private repository of United States public-sector spending.  It has been trying to acquire checkbook data from the Controller for over six years, but it has faced continual delay, silence, and obfuscation.

Learn More