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
12/4/2019
Recent FOIA Exemption 4 decision highlights problems with SCOTUS’s holding in Argus Leader
Earlier this year, in Food Marketing Institute v. Argus Leader, the Supreme Court radically altered the scope of Exemption 4 under the Freedom of Information Act (“FOIA”). Exemption 4 protects from disclosure “trade secrets” and “commercial or financial information obtained from a person [that is either] privileged or confidential.” At issue in Argus Leader was the precise meaning of the term “confidential.” Rather than accept the long-standing “competitive harm” standard developed by the D.C. Circuit nearly forty years ago, the Supreme Court instead held that “confidential” meant anything “customarily and actually treated as private by its owner.” As Cause of Action Institute warned at the time, that “cramped reading” of Exemption 4 “failed to grapple with the historical and contextual meaning” of “confidential” and would “make it more difficult for the media and government-transparency groups to conduct oversight of the often-murky nexus between business and government.”
10/21/2019
USDA Adopts CoA Institute’s Recommendations for Improved FOIA Regulations
The Department of Agriculture finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency last year. These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More
10/15/2019
NASA Adopts CoA Institute’s Recommendations to Improve Revised FOIA Regulations
The National Aeronautics and Space Administration (“NASA”) finalized a rule last week to implement revised Freedom of Information Act (“FOIA”) regulations. That final rule incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in May 2019. CoA Institute’s comment recommended improvements to several aspects of NASA’s proposed regulations that were inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for agency records. CoA Institute also recommended that NASA add a provision to implement the “foreseeable harm” standard—a new statutory requirement that CoA Institute has been investigating government-wide. These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More
10/11/2019
White House Issues Executive Orders Curtailing Use of Guidance Documents to Bypass Notice-and-Comment Rulemaking and Imposing Public Disclosure Requirement
On October 9, 2019, the White House issued two executive orders designed to curtail the abuse of guidance documents by government agencies. Both orders address due process violations by agencies by requiring notice and an opportunity to be heard before action can be taken or liability imposed against alleged wrongdoers. Learn More
09/18/2019
CoA Institute Sues White House Office of Management and Budget over Refusal to Update Outdated FOIA Fee Guidelines
Cause of Action Institute (“CoA Institute”) filed a lawsuit yesterday against the White House Office of Management and Budget (“OMB”), continuing the parties’ longstanding feud over the agency’s failure to update thirty-year-old guidelines for the adjudication of fee issues under the Freedom of Information Act (“FOIA”). In June 2016, CoA Institute submitted a petition for rulemaking to OMB asking it to revise the government-wide 1987 Uniform Freedom of Information Act Fee Schedule and Guidelines. After CoA Institute filed suit to compel a response, OMB denied the petition, arguing incorrectly that no agency subject to the FOIA is “currently relying” on outdated or statutorily superseded guidance. The new lawsuit seeks judicial review of that denial. Learn More
09/4/2019
FTC v. Qualcomm: FTC Oversteps its Section 13(b) Authority . . . Again
On August 30, 2019, Cause of Action Institute (CoA) filed an amicus brief in the Ninth Circuit in support of Qualcomm in FTC v. Qualcomm, Inc., No. 19-16122. This unprecedented, highly controversial case of international importance represents FTC’s latest ultra vires attempt to expand its powers. It does so here by seeking to transmogrify an alleged breach of contract into an antitrust violation. A former FTC Commissioner, a current FTC Commissioner, the U.S. Department of Justice, numerous other federal agencies, a former Chief Judge of the Federal Circuit, leading antitrust scholars, and others all publicly oppose FTC’s wayward lawsuit against Qualcomm. Learn More