Supreme Court Signals Nondelegation Doctrine Has Life

This week, the Supreme Court indicated that it may be on the verge of, for the first time in eight decades, applying the nondelegation doctrine and requiring Congress, not government bureaucrats, to make law.  This critical development could result in significant advancement of economic freedom, political accountability, and the liberty of individual citizens.

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USTR Records Show Ambassador Lighthizer Used Personal Email for Government Business

Records obtained by Cause of Action Institute (“CoA Institute”) through the Freedom of Information Act (“FOIA”) reveal that Ambassador Robert Lighthizer, the United States Trade Representative (“USTR”), and Stephen Vaughn, General Counsel to the USTR and former Acting Trade Representative, used their personal email addresses to conduct official government business in 2017 and 2018. Considering the Administration’s aggressive trade policy that is increasing costs on American consumers and businesses, transparency is of paramount importance.

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The Brief – June 3, 2019

Cause of Action Institute published its May newsletter today. You can read the newsletter here and subscribe to our monthly newsletter here

                                         Message from John

Our team is fortunate enough to spend every day working to tear down barriers and protect individual and economic liberty, and we are exceptionally grateful for the days where we get to see those barriers removed. In early May, Cause of Action celebrated a decision from a U.S. District Court denying all damages against our clients, Robert and Angelo Cupo, and their small business. This decision was not only a victory for this family, but for all small business owners and entrepreneurs who fear the administrative state.

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GAO Report Finds EXIM Potentially Provides Billions in Financing to Companies with Delinquent Federal Debt

While the Export-Import Bank (EXIM) celebrated the recent confirmation of its president and two members of its board of directors, the Government Accountability Office (GAO) released a troubling report concerning EXIM potentially providing billions of dollars in loans and financing to companies improperly. GAO found EXIM failed to use a federal database available to all government agencies free of charge to identify companies that have delinquent federal debt. Consequently, EXIM may have provided financing to ineligible companies and increased it’s susceptibility to fraud.

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Investigation Update: GSA Continues to Block Disclosure of White House Directive on Congressional Oversight Requests, Reveals Sensitive Review Procedure for Media Requesters

Cause of Action Institute (CoA Institute) received an interim response yesterday from the General Services Administration (GSA) on a Freedom of Information Act (FOIA) request that suggests the agency is deliberately stonewalling the release of a White House directive instructing agencies on how to respond to congressional oversight requests. Records released by the agency also suggest that the GSA has implemented a “sensitive review” FOIA process by which news media requesters are subject to an extra layer of pre-production review.

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Cause of Action Institute Calls on NASA to Revise Proposed FOIA Rule

Cause of Action Institute (CoA Institute) submitted a public comment to the National Aeronautics and Space Administration (NASA) today, concerning the agency’s proposed revisions to its Freedom of Information Act (FOIA) regulations. Our comment offers improvements to various aspects of the proposed rule which are inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for relevant records. CoA Institute also suggests an additional provision that was not proposed by the agency, implementation of the “foreseeable harm” standard, a provision we are investigating government-wide.

NASA refers to the White House Office of Management and Budget’s Uniform FOIA Fee Schedule and Guidelines as an authority for interpreting the FOIA and the agency’s implementing regulations.  However, the OMB Guidelines have been statutorily superseded, in part, by Congress’s passage of the OPEN Government Act of 2007 and conflict with case law developments. CoA Institute asks NASA to remove any reference to the OMB Guidelines in its final rule. This change is important because continued reliance on the OMB Guidelines will make it more difficult for certain kinds of requesters to receive fee reductions.  Specifically, the OMB Guidelines retain outdated definitions of “representative of the news media”[1] and “educational and non-commercial scientific institution.”[2]  This change will also make NASA’s regulations internally consistent, as they often correspond with current law and, consequently, contradict the outdated guidelines.

Although NASA adopts the current definition of a “representative of the news media,” it seeks to impose novel requirements that would make it more difficult for news media requesters to obtain a fee reduction.  Specifically, NASA would require a news media requester to explain (1) how it intends to disseminate records, (2) why those records constitute “current news,” or are of “public interest,” and (3) how the records will “shed light on agency statutory operations.” Each of these requirements is inconsistent with the FOIA and relevant caselaw, particularly Cause of Action v. Federal Trade Commission.  The fee category inquiry turns on the nature of the requester, not the purpose of his or her request.  If NASA retains these proposed hurdles, journalists and watchdogs, among others, will find it more difficult to receive favorable fee treatment.

Additionally, certain language in the proposed rule suggests that NASA considers only records within its physical “possession” to be subject to the FOIA.  This misstates the law.  Whether a record is an “agency record” for purposes of the FOIA, and therefore available for disclosure, depends on whether it is under an agency’s legal “control.”  “Control” includes instances of “constructive possession,” such as when records are stored in private email accounts or created and/or maintained by a contractor.  The FOIA statute and relevant case law are clear on this point. If NASA does not replace the word “possession” with “control” it will engender confusion and may lead to the improper denial of FOIA requests, particularly those that seek records of agency business that were created or obtained on personal accounts or record systems.

NASA’s rulemaking is supposed to implement the FOIA Improvement Act of 2016, but there is one amendment that has not been addressed: the “foreseeable harm” standard.  Under that new standard, an agency may only withhold records if it “reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”  The rule prohibits the mere technical application of FOIA exemptions. Without the language proposed by CoA Institute, it could be harder to hold NASA accountable for its compliance with the FOIA.  Some agencies have taken the view that the “foreseeable harm” standard is inconsequential.  Yet that view renders the standard mere surplusage, which is an unacceptable outcome.  By adding a provision to implement the “foreseeable harm” standard, NASA would demonstrate its commitment to the law.

Our comment to NASA is part of our ongoing efforts to ensure that all agencies continue to update their FOIA regulations to reflect the current language in statutory guidelines. The FOIA is a vital component for efforts to ensure transparency and accountability in government, and CoA is committed to leveraging our expertise to encourage proper conformity with the law among all regulatory agencies. We have submitted 27 public comments to various rulemaking efforts since the passage of the FOIA Improvement Act of 2016, and we hope NASA will follow in the footsteps of other agencies who have adopted our recommendations to conform with the law.

Ryan Mulvey is counsel at Cause of Action Institute.

[1] Cause of Action v. Fed. Trade Comm’n, 799 F.2d 1108 (D.C. Cir. 2015)

[2] Sack v. Dep’t of Def., 823 F.3d 687 (D.C. Cir. 2016).

Institute of Museum and Library Services Adopts CoA Institute’s Recommendation for Revised FOIA Regulations

The Institute of Museum and Library Services (“IMLS”) finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates an important revision proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in January 2019.  The IMLS is a small agency that provides federal support to libraries and museums across the country in coordination with state and local government.

CoA Institute made several recommendations in response to the IMLS’s proposed rulemaking.  Most importantly, we urged the agency to remove outdated “organized and operated” language from its definition of a “representative of the news media.”  That language has been used in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.

In 2012, we sued the Federal Trade Commission, and took our case all the way to the D.C. Circuit, just to get the agency to acknowledged that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction by relying on the “organized and operated” standard.  In deciding that case, the D.C. Circuit issued a landmark decision in 2015, which clarified the proper fee category definitions and application of fees in FOIA cases.  We cited this case to the IMLS and the agency took heed of the controlling case law, removing the outdated “organized and operated” standard from its final rule.

CoA Institute also asked the IMLS to remove language directing its FOIA officials to read agency regulations “in conjunction with” fee guidelines published by the White House Office of Management and Budget (“OMB”) in 1987.  Portions of the OMB guidance, which are the source of the “organized and operated” standard, are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities, including Cause of Action v. Federal Trade Commission.

Continued reliance on the OMB guidelines is a source of confusion.  In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines.  CoA Institute also filed a petition for rulemaking on the issue, and is currently litigating the matter in federal court.  Although the IMLS has decided not to alter its reference to the OMB guidelines, the fact remains that no agency can rely on OMB’s superseded directives.

Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on twenty-seven separate rulemakings.  Of the twelve interim or proposed rulemakings that have been finalized, CoA Institute has succeeded in convincing nine agencies to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media,” including the following:

Other agencies, including the National Credit Union Administration and the Federal Reserve, chose to defer CoA Institute’s recommendations and have promised to propose further revisions in the near future to address outstanding fee issues.  A small minority of agencies, which published direct final rules, have failed to acknowledge the continued deficiency in their regulations.

CoA Institute’s successful comment to the IMLS is another small step in our efforts to provide effective and transparent oversight of the administrative state and, more specifically, to ensure agency compliance with the FOIA.

Ryan P. Mulvey is Counsel at Cause of Action Institute