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

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

CoA Institute Sues White House Office of Management and Budget over Refusal to Update Outdated FOIA Fee Guidelines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 GuidelinesAfter 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a response, OMB denied the petition, arguing incorrectly that no agency subject to the FOIA is “currently relying” on outdated or statutorily superseded guidance.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

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

FEC IG Report Leaves Weintraub Unchecked

In February 2017, Cause of Action Institute asked the Inspector General (“IG”) for the Federal Election Commission (“FEC”) to look into statements made by Commissioner Ellen Weintraub.  We recently obtained a copy of the IG’s report on the issue, clearing Commissioner Weintraub of wrongdoing. Learn More

Investigation Update: The VA continues to subject certain FOIA requests to “sensitive review,” but the agency is keeping records about the practice secret

Over the past year, Cause of Action Institute (“CoA Institute”) has been investigating the Department of Veterans Affairs for its continued politicization (here, here, and here) of the Freedom of Information Act (“FOIA”).  That politicization takes the form of “sensitive review,” which refers generally to the practice of giving certain FOIA requests extra scrutiny.  Sensitive review usually entails an additional layer of review or “consultation” with interested parties before potentially embarrassing or politically sensitive records are released to the public.  At its best, it almost always causes delay.  At its worst, it leads to intentionally inadequate searches, politicized document review, improper redaction, and incomplete disclosure. Learn More

The EPA bypassed public comment on its new FOIA regulations, which raises some important legal questions

The Environmental Protection Agency (“EPA”) has long struggled with the politicization and abuse of its Freedom of Information Act (“FOIA”) processes.  Indeed, as Cause of Action Institute (“CoA Institute”) has repeatedly argued, the agency has a “terrible track record for anti-transparency behavior”—from the weaponization of fee waivers and the use of undisclosed “alias” e-mail accounts, to the failure to preserve text messages and the creation of special “awareness review” procedures for politically sensitive FOIA requests.  Yet the EPA’s rather poor reputation plunged even further in late June 2019, when the agency published an unexpected direct final rule implementing various changes to its FOIA regulations. Learn More