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06/22/2018

Department of Labor Denies FOIA Appeal After Nearly Four Years, and Unilaterally Narrows the Scope of the Request, Despite OGIS Intervention

The Department of Labor (“DOL”) recently denied CoA Institute’s long-pending Freedom of Information Act (“FOIA”) appeal concerning records of consultations between DOL and the Office of the White House Counsel (“OWHC”) on any documents containing “White House equities.”  CoA Institute filed its request on November 26, 2013 and its appeal on September 25, 2014.  After attempting to contact a responsible DOL official on over fifteen occasions, either through email or by voice message, CoA Institute finally asked the Office of Government Information Services (“OGIS”) to intervene in October 2017.  Despite DOL’s promise to try to issue a determination this past March, its appeal decision only arrived last week—forty-five months after CoA Institute’s appeal was submitted and long past the applicable FOIA deadlines.

“White House equities” review and FOIA politicization

In March 2014, CoA Institute published a report revealing the existence of a non-public memorandum from then-White House Counsel Gregory Craig that directed department and agency general counsels to send to the White House for consultation all records involving “White House equities” when collected in response to any sort of document request.  This secret memo stood in stark contrast to President Obama’s January 2009 directive on transparency, as well as Attorney General Holder’s March 2009 FOIA memo.  Although originally praised as setting the bar for open government, the Washington Post eventually described the Obama Administration as one of the most secretive governments in American history.

As part of the system of politicized FOIA review established under the “White House equities” policy, whenever a requester sought access to records deemed politically sensitive, potentially embarrassing, or otherwise newsworthy, the agency processing the request would forward copies of those records to a White House attorney for pre-production review.  Not only did the entire process represent an abdication of agency responsibility for the administration of the FOIA, but it severely delayed agency compliance with the FOIA’s deadlines.  As we have previously suggested, “White House equities” review likely continues under the Trump Administration.

DOL’s deficient processing of CoA Institute’s FOIA request

In this case, CoA Institute’s request sought all records reflecting “White House equities” consultations.  DOL released fifty-seven (57) pages of records with various pieces of information withheld under Exemptions 5 and 6, mostly personally identifying information—such as the names of lower-level DOL employees—or substantive portions of the agency’s conversations with White House attorneys.  Interestingly, DOL never indicated which privileges it sought to apply with Exemption 5.  (CoA Institute argued against the application of the attorney-client, attorney work product, and deliberative process privileges in its appeal.)

Most egregiously, DOL unilaterally limited the scope of its search to include only records reflecting White House review of FOIA requests, rather than the wide range of record requests covered by the Craig Memo:

DOL based its narrowing on stray language in CoA Institute’s request for a public interest fee waiver.  But there is no authority to support an agency limiting the subject-matter scope of a FOIA request based on a fee waiver argument.  A fee waiver request should only impact a requester’s obligations to pay any applicable fees.

DOL’s incorrect appeal decision . . . overdue by over three-and-an-half years

DOL’s appeal determination is troubling.  The agency again chose to ignore the plain language of the Craig Memo, which was cited by CoA Institute and establishes the clear scope of “White House equities” review.  Once more, DOL relied on CoA Institute’s fee waiver request.  But that language simply cannot justify limiting a search to White House consultations on “FOIA requests.”  As some type of consolation, DOL suggested that CoA Institute submit a new request.

After admitting that it had applied the deliberative process privilege, DOL summarily upheld its use of Exemption 5, describing the White House’s pre-production clearance of agency records to be part of DOL’s deliberative processes.  DOL also refused to release the names of the lower-level employees who were involved in “White House equities” consultations, arguing that there was no public interest in the disclosure of their identities.

Concluding thoughts on OGIS and its lack of enforcement power

Congress created OGIS to help mediate disputes between requesters and agencies.  OGIS is meant to provide an alternative to litigation.  Yet OGIS lacks any sort of enforcement authority, and it can only intervene if an agency and the requester voluntarily submit to the mediation process.  Thus, even if OGIS “resolves” a dispute, it has no power to hold the parties to their agreement.  Agencies suffer no consequences for disregarding the outcome of OGIS mediation.  This is a tremendous flaw in how OGIS is designed.

As this email chain demonstrates, CoA Institute asked OGIS to intervene in October 2017; OGIS closed its case in February 2018, following DOL’s commitment to trying to finish its adjudication of CoA Institute’s appeal by March 26, 2018.  That date came and went.

This is not the first time OGIS mediation has proven ineffectual and an agency has refused to honor the promises it made as part of the dispute resolution process.  CoA Institute is currently litigating another FOIA suit against the Department of Treasury over records reflecting the “sensitive review” process, which subjects certain FOIA requesters—such as representatives of the news media—to extra scrutiny.  Treasury and CoA Institute agreed to a series of scheduled interim productions; Treasury missed every one of those deadlines, and it only began to release records once CoA Institute filed a lawsuit.  This is an unacceptable practice, and Congress should look to reform the OGIS process.

Ryan Mulvey is Counsel at Cause of Action Institute

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06/21/2018

The VA’s Acting Secretary Claimed He Has Authority Over the Agency’s Independent Watchdog. He’s Wrong.

Department of Veterans Affairs (VA) acting secretary Peter O’Rourke incorrectly claimed authority over the VA Inspector General (IG) in a letter sent to the IG on June 11 and published by Stars and Stripes on June 20.  In the letter, O’Rourke wrote to VA IG Michael Missal:

“You also appear to misunderstand the independent nature of your role and operate as a completely unfettered, autonomous agency. You are reminded that OIG is loosely tethered to VA, and in your specific case as the VA Inspector General, I am your immediate supervisor. You are directed to act accordingly.”

The letter from O’Rourke was in response to IG Missal’s concerns outlined in a June 5 letter to the VA that claimed the agency was withholding information from the IG, including information about whistleblower complaints. By trying to strongarm the IG, not only is O’Rourke blatantly mistaken in his interpretation of federal law, but his threatening language in the letter is deeply troubling. While the relevant law, the Inspector General Act of 1978, does put IGs under “general supervision” of agency heads, it makes clear that they have their own independent authority:

“Establishment IGs [IG Act, § 3(a)]: The Act specifies that each IG ‘shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment.’ Except under narrow circumstances discussed below, even the head of the establishment may not prevent or prohibit the IG from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.” (Emphasis added)

The Council of the Inspectors General on Integrity and Efficiency (CIGIE) explains that “[w]hile by law, IG’s are under the general supervision of the agency head or deputy, neither the agency head nor the deputy can prevent or prohibit an IG from conducting an audit or investigation. The VA’s own Functional Organization Manual states that the VA IG is “an independent oversight entity” that “[h]as authority to inquire into all VA programs and activities.”

Simply put, an IG is an independent entity that operates separately from the oversight of any official within the agency it oversees. The independent authority of the IG ensures that investigators can conduct their work without fear of reprisal.

Cause of Action Institute has often written about the issues of having watchdogs without permanent leadership, but an uncooperative agency is a similar, if not greater, problem for accountability and oversight. The VA’s acting secretary should stop claiming authority he does not have and should not try to hinder accountability at a federal agency that desperately needs it.

Ethan Yang is a Research Fellow at Cause of Action Institute.

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06/21/2018

Federal District Court Excuses IRS’s Refusal to Search for Email Records Concerning White House Interference with the FOIA

Last week, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issued an order denying Cause of Action Institute’s (“CoA Institute”) cross-motion for summary judgment in a Freedom of Information Act (“FOIA”) brought against the Internal Revenue Service (“IRS”).  The opinion was long awaited—summary judgment briefing ended over a year-and-an-half ago.  Although we do not intend to appeal the decision, it is worth highlighting some issues with Judge Sullivan’s opinion and the IRS’s arguments.  The case is a fine example of how courts too frequently defer to agencies when it comes to policing their compliance with the FOIA.

Background: “White House equities” review and FOIA politicization

In March 2014, CoA Institute published a report revealing the existence of a non-public memorandum from then-White House Counsel Gregory Craig that directed department and agency general counsels to send to the White House for consultation all records involving “White House equities” when collected in response to any sort of document request.  This secret memo stands in stark contrast to President Obama’s January 2009 directive on transparency, as well as Attorney General Holder’s March 2009 FOIA memo.  Although originally praised as setting the bar for open government, the Washington Post eventually described the Obama Administration as one of the most secretive governments in American history.

As part of the system of politicized FOIA review established under the “White House equities” policy, whenever a requester sought access to records deemed politically sensitive, potentially embarrassing, or otherwise newsworthy, the agency processing the request would forward copies of those records to a White House attorney for pre-production review.  Not only did the entire process represent an abdication of agency responsibility for the administration of the FOIA, but it severely delayed agency compliance with the FOIA’s deadlines.  As we have previously suggested, “White House equities” review likely continues under the Trump Administration.

The specific FOIA request at issue in this case, which was submitted to the IRS in May 2013, sought records of communications between IRS officials and the White House reflecting “White House equities” consultations.  Similar requests were sent to eleven other agencies.  All those agencies produced the requested records; only the IRS failed to locate a single relevant document.  And the IRS only communicated its failure to find any responsive records two years after CoA Institute submitted its request and filed a lawsuit.

Why the IRS failed to conduct an adequate search for records

Our argument for the inadequacy of the IRS’s search for records reflecting “White House equities” consultations focused on several points, but two were especially important.  First, the IRS failed to search its own FOIA office—the most likely custodian of the records and issue.  Second, the IRS improperly refused to search for any responsive email correspondence within the Office of Disclosure.

The IRS inexplicably limited its search efforts to the Office of Legislative Affairs, a sub-component of the Office of Chief Counsel, and the Executive Secretariat Correspondence Office, which handles communications with the IRS Commissioner.  The agency offered no evidence that it sent search memoranda to its FOIA office, which is part of the “Privacy, Governmental Liaison, and Disclosure” or “PGLD.”  In fact, the IRS effectively admitted that it had foregone a search of the Office of Disclosure because a single senior employee testified that he did not believe any responsive records existed.  And because “White House equities” review was not mentioned in the Internal Revenue Manual, the FOIA officer assigned to CoA Institute’s request determined that consultations with the White House would never have taken place.

The IRS also refused to search individual email accounts within the Office of Disclosure because it would be too “burdensome.” Remarkably, the IRS claimed it would “take one IRS IT person at least 13 years” to capture the correspondence of all 165 employees within the Office of Disclosure.  Yet the IRS offered no explanation for why other reasonable options to search email did not exist, such as requiring individual employees to “self-search” email, conducting a preliminary sample search of individuals within the Office of Disclosure most likely to have responsive records, or making use of e-discovery tools like “Clearwell” and “Encase.”

The Court’s Flawed Opinion and Hyper-Deference to the IRS

One major flaw in the Court’s decision concerns its uncritical acceptance of a single IRS attorney’s belief about the existence of responsive records within the Office of Disclosure.  Although the IRS admittedly conducted a keyword search of its tracking system for incoming FOIA requests, it refused to send out search memoranda or engage in other typical search efforts.  The IRS instead relied on the declaration of John Davis, Deputy Associate Director of Disclosure, who claimed that he had never heard of “White House equities” and was unaware of White House consultations ever taking place.  On this basis alone, the IRS concluded it was “unreasonable” to conduct a more vigorous search.  The Court accepted this reliance without any real explanation when it should have given more consideration to the text of the Craig Memo, which was addressed to the entire Executive Branch—including the IRS—and the fact that the eleven co-defendants in the same case all produced responsive records—nearly all of which were email chains.

As for the search of individual email accounts, the Court yet again uncritically deferred to the IRS’s bizarre claim that it would take thirteen years to process CoA Institute’s FOIA request.

In deferring to the IRS, the Court failed to address the IRS’s practice of conducting email searches by manually inspecting the content of individual hard drives, a central reason why an email search would take so preposterously long.  This practice, which requires the IRS to warehouse a lot of old computer equipment, has been repeatedly criticized by the Treasury Inspector General for Tax Administration because it could lead to violations of records management laws.

Additionally, some doubt exists, based on information independently received by CoA Institute from IRS employees, as to the accuracy of the IRS’s claims regarding its ability to conduct an agency- or component-wide search of its email system.  Because FOIA cases rarely make it to trial, it is nearly impossible to pin the IRS down on the accuracy of its claims.  Regardless, the IRS has certainly made a habit of regularly evading its disclosure obligations, a habit buttressed in this instance by an overly deferential judiciary.

Ryan Mulvey is Counsel at Cause of Action Institute

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06/20/2018

CoA Institute Calls on General Services Administration to Revise Proposed FOIA Regulations

Cause of Action Institute (“CoA Institute”) submitted a comment today to the General Services Administration (“GSA”) concerning the agency’s proposed rule revising its Freedom of Information Act (“FOIA”) regulations.  CoA Institute explained that the planned changes could cause confusion by directing agency staff to interpret the FOIA statute and GSA’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (“OMB”).

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987.  Although the FOIA requires an agency to promulgate its fee schedule in conformity with the OMB Guidelines, they are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities.  Over the past thirty years, OMB has made no effort to revise the Guidelines.  They should not be used as a reference point for the proper administration of the FOIA.

One problematic aspect of the OMB Guidelines is the definition of a “representative of the news media.”  The current statutory definition of this fee category, which was introduced by the OPEN Government Act of 2007, differs from the definition provided by OMB.  Indeed, the OMB definition, which incorporates an “organized and operated” standard, has long been one of the more contentious aspects of the OMB Guidelines.  In 2015, however, the D.C. Circuit issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.

The OMB Guidelines also have been rendered obsolete by other jurisprudential developments.  For this reason, in 2016, the FOIA Advisory Committee and Archivist of the United States called on OMB to update its fee guidance.  CoA Institute filed a petition for rulemaking on the issue, too.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  Our lawsuit is still pending.  Until the OMB Guidelines have been revised to reflect modern circumstances and the actual text of the FOIA, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law.

Ryan Mulvey is Counsel at Cause of Action Institute

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06/14/2018

CoA Institute Responds to Opinion in FOIA Case Against IRS

On Tuesday, June 12, the District Court for the District of Columbia issued an opinion in CoA Institute’s long-standing FOIA suit against the IRS for failing to produce records regarding possible White House intrusion in to the agency’s FOIA practices. The opinion can be found here.

 

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06/11/2018

CoA Institute Calls on Department of Agriculture to Revise Problematic FOIA Rule

Cause of Action Institute (“CoA Institute”) submitted a comment today to the Department of Agriculture (“USDA”) concerning the agency’s publication of a deficient rule that proposes revisions to the agency’s Freedom of Information Act (“FOIA”) regulations.  CoA Institute explained that USDA’s FOIA rule fails to provide a definition of a “representative of the news media” that conforms with statutory and judicial authorities.  The proposed regulations also could cause confusion by directing agency staff to consult outdated fee guidance published by the White House Office of Management and Budget (“OMB”).

News Media Fee Category

USDA’s proposed regulations improperly retain the so-called “organized and operated” standard in the definition of a “representative of the news media.”  This is an important deficiency because the “organized and operated” standard has been used in the past to deny news media requester status to nascent media groups and government watchdog organizations like CoA Institute.  Indeed, CoA Institute took another agency—the Federal Trade Commission—to court, and argued its case all to the way to the D.C. Circuit, just to get the agency to acknowledge that its similar retention of the “organized and operated” standard was unlawful and led to improperly denying CoA Institute a fee reduction.  The D.C. Circuit eventually issued a landmark decision in CoA Institute’s favor to clarify proper fee category definitions and their application in FOIA cases.

Congress amended the FOIA to provide a straightforward and comprehensive definition of a “representative of the news media.”  USDA—and all other agencies—should not attempt to modify that definition or introduce additional hurdles for news media requesters.

OMB Fee Guidelines

USDA’s FOIA rule also proposes to retain references to the OMB’s 1987 FOIA fee guidelines, which are the genesis of the “organized and operated” standard.  Specifically, USDA would like its disclosure officials to estimate fees in accordance with the OMB fee guidelines.  But those guidelines are outdated and unreliable.  Over the past thirty years, Congress has amended the FOIA on numerous occasions, courts have developed overriding FOIA jurisprudence, and technology has evolved in significant ways.  Yet OMB has made no effort to revisit its fee guidance.  That guidance should not be used as a reference point for the proper administration of the FOIA.

In 2016, the FOIA Advisory Committee and the Archivist of the United States called on OMB to update the fee guidelines.  CoA Institute even filed a petition for rulemaking on this issue.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  Until OMB acts to revise its fee guidelines, USDA should not direct its staff to consult them in any way as authoritative.

Other Agencies Have Followed CoA Institute’s Advice

CoA Institute has succeeded in convincing a number of other agencies to abandon the OMB’s “organized and operated” standard in favor of a proper definition of “representative of the news media” in line with the FOIA statute and controlling case law.  Those agencies include, among others, the Consumer Product Safety Commission, Office of the Special Counsel, Department of Defense, U.S. Agency for International Development, and Department of Homeland Security.  We hope that USDA similarly will revisit its FOIA rule and eliminate the “organized and operated” standard in lieu of a proper definition of a news media requester.

Ryan Mulvey is Counsel at Cause of Action Institute

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