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03/31/2017

Office of Special Counsel accepts CoA Institute’s FOIA regulation recommendations

The U.S. Office of Special Counsel (“OSC”) published a final rule yesterday to update its Freedom of Information Act (“FOIA”) regulations. In addition to implementing changes required by the FOIA Improvement Act of 2016, OSC adopted various changes recommended by Cause of Action Institute (“CoA Institute”).

Last summer, CoA Institute was one of two organizations to submit a comment to OSC on its proposed regulatory revisions. First, we asked the agency to revise its fee category definition for a “representative of the news media,” which still included outdated “organized and operated” language.  In 2015, the D.C. Circuit recognized this “organized and operated” standard as superseded by statutory amendment in its landmark decision in Cause of Action v. Federal Trade Commission.  Similarly, we suggested—and OSC agreed—that the fee category definition should include a non-exhaustive list of entities that, in light of alternative and evolving news formats, qualify as a news media requester.  Finally, we recommended that OSC add explicit language detailing its records retention obligations for FOIA-related federal records.  On all counts, OSC substantively agreed with CoA Institute’s proposals.

Our successful comment is yet another small step in our ongoing efforts to provide effective and transparent oversight of the administrative state.

Ryan Mulvey is counsel at Cause of Action Institute

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03/29/2017

Hundreds of Important Rules Vulnerable To Repeal Under the Congressional Review Act

The Congressional Review Act (“CRA”) provides expedited procedures for Congress to disapprove of an agency rule.  If both chambers of Congress pass a disapproval resolution and the president signs the resolution, the rule is invalidated and may not be re-promulgated in substantially the same form.  The CRA has long been viewed as a limited tool that can reach back and invalidate rules from approximately the last six months.  Todd Gaziano, of the Pacific Legal Foundation, has argued that if an agency failed to properly report a new rule to Congress as required under the CRA, the Act may be able to reach back all the way to 1996 when the CRA was enacted.  Using this theory, the current administration could trigger the CRA disapproval resolution process by submitting a report for an old rule to Congress and take advantage of the expedited congressional process.

This has set off something of a scrambledownload to identify all of the rules that were never properly submitted, and thus subject to invalidation.  We are partnering with the Pacific Legal Foundation’s Red Tape Rollback project to identify rules.

Argive, a regulatory analysis project of U.S. Common Sense, identified nearly 700 economically significant rules that were not reported to the Government Accountability Office (“GAO”) for analysis as required by the CRA.

Inspired by their work, we decided to build on it by comparing the same data against the Executive Communications database maintained by the Library of Congress.  This database includes all of the direct communications from federal agencies to the relevant congressional committees of jurisdiction.

We uncovered hundreds of important rules that appeared in the Federal Register but were not received by Congress, as required by the CRA.  Those rules are listed below:

Download our data here to view filtered by agency.

Methodology

We started with the Mercatus Center’s QuantGov database for all documents published in the Federal Register from 1996 to March 14, 2017.  We filtered that dataset to “rules” that were identified as “economically significant.”

We then compared that data against the data we pulled from the Library of Congress’s list of Executive Communications.  We eliminated rules where the text in either the “document title” field or the “RIN” (regulation identifier number) field matched text in the congressional database.  The formula we used to run these comparisons was =COUNTIF(Cong.GovExCommData!A:A, “*” & [cell reference] & “*”)>0.  We also eliminated some EPA rules that were listed by that agency’s FRL numbers, as well as some duplicates.

Next, we reviewed each remaining document in the Federal Register and gave each a score from 0-3 to signify the item’s importance, with a 3 being the most important.  An item was scored as a 3 if it is a rule with national importance or interest; for example, a habitat designation under the Endangered Species Act.  An item was scored as a 2 if it was an interesting rule but that likely is of interest only to its regulated community; for example, the Farm Credit Administration’s risk-based capital requirements.  All remaining rules were given a score of 1, while notices and technical corrections were rated a 0.  This scoring system is of course subjective and is just a rough guide.  The list above it currently sorted with the most important rules at the top

We then clarified the data in the “issuing agency” and “sub agency” fields to enable researchers to filter the remaining data.

Advantages

  • Our results include rules submitted to the Federal Register from 2015–2017. The Argive results are limited because the GAO database does not include reports about these recent rules.  We identified 74 unreported rules from this time period.
  • Most importantly, we compared data against the rule reports Congress actually received, not only rule reports sent to GAO. We believe this is the most relevant analysis because the 60-day time limit imposed by the CRA begins when Congress receives the report for a rule.
  • We compared our results against the Argive results and concluded we identified hundreds of important rules subject to the CRA. We also found numerous rules that were missing from both the GAO and congressional database (i.e., rules that were identified by both Argive and us).

Limitations

  • The CRA covers more rules than those submitted by agencies to the Federal Register. For example, the CRA covers guidance documents and agency rules of procedure or practice, if those rules “substantially affect the rights or obligations of non-agency parties.”[1]  Our analysis does not include these rules because we started with a database that only included rules published in the Federal Register.
  • Similarly, we did not review each rule to ensure that it met the CRA’s definition of a rule, which excludes rules that set rates and prices.
  • The congressional Executive Communications database only includes rule reports sent to the Senate. To the best of our knowledge, there is no corresponding database of House communications.  This does not invalidate our results, however, because the CRA requires agencies to notify both chambers of new rules.  Therefore, even if the House received a communication identifying one of the rules on our list, the fact that the Senate did not receive a similar communication means the rule is still subject to the CRA.

We welcome feedback on these findings and methods.  You can contact me at james.valvo@causeofaction.org

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

Update: This post was updated on April 6, 2017 to include further revisions and analysis of the data.

[1] 5 U.S.C. § 804(3).

 

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03/23/2017

CoA Institute Presses CFPB on Agency Records Kept on Personal Mobile Device

No matter what messaging medium agencies use to conduct business, federal records must be preserved.  If government employees are allowed to evade the Federal Records Act and the Freedom of Information Act (“FOIA”) through use of messaging on their private mobile devices, it threatens government transparency and encumbers efforts to hold agencies accountable.

Just last week, CoA Institute received documents from the Consumer Financial Protection Bureau (“CFPB”) indicating that, in response to our FOIA request, it conducted a search of Director Richard Cordray’s personal mobile device for any text messages that may be agency records.  That action represents the minimum required of CFPB under the law, but the agency has not yet clarified whether it has adequate recordkeeping procedures in place to preserve all agency records created on such personal devices.  It also is unclear whether Director Cordray’s text messages represent the whole body of agency business done on the Director’s phone and if any records may have been destroyed before responding to our request.

In addition, CoA Institute discovered that the National Archives and Records Administration (“NARA”) sent a February 1, 2017 letter to CFPB, requesting information and reports regarding potential destruction of the above-mentioned records.  NARA demanded a reply from CFPB by March 1, 2017.  Today, we filed FOIA requests with both CFPB and NARA in an effort to uncover CFPB’s response and clarify what actions, if any, the agency has taken to fortify its recordkeeping practices.

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03/20/2017

The Proof is in the Metadata: Recent Developments in CEI v. OSTP

Last summer, in Competitive Enterprise Institute v. Office of Science & Technology Policy, 827 F.3d 145 (D.C. Cir. 2016) (“CEI v. OSTP”), the D.C. Circuit reached an important decision concerning an agency’s obligation to search private email accounts maintained by government officials for records responsive to a Freedom of Information Act (“FOIA”) request. The court determined that if an official “possesses what would otherwise be agency records [e.g., work-related email], the records do not lose their agency character just because the official . . . takes them out the door [e.g., to a private account][.]” Id. at 149. Thus, if a personal email account may contain agency records, the agency cannot categorically refuse to conduct a search of that private account.

This past week, however, the district court on remand appeared to dampen the impact of the D.C. Circuit’s ruling. Judge Gladys Kessler determined that OSTP had met its burden under the FOIA and did not have to conduct a search of former Director John Holdren’s personal email account, the contents of which had been saved on a thumb drive last December under court order. OSTP successfully argued that any agency records on Holdren’s non-governmental account would be duplicative of records already on OSTP servers. The agency pointed to a policy that required Holdren to forward work-related email to his official account or to copy that account on work-related correspondence. OSTP also attested that Holdren obeyed this policy on “approximately 4,500 occasions” and was otherwise entitled to a presumption of compliance “absent evidence to the contrary.” CEI could not rebut the presumption.

The district court’s decision, particularly on the heels of Sunshine Week, is disappointing. First, although a requester admittedly cannot rely on speculation to prove wrongdoing, once a requester has proven that a non-governmental system contains agency records, the agency should not be allowed to forego a search of that system simply because it claims to possess “duplicative” records elsewhere. It is difficult enough to demonstrate that an agency official is violating the spirit, if not the law, of transparent government by using personal email for work-related purposes. The existence and usage of a parallel personal account should be enough, in most cases, to rebut any presumption of compliance with preservation rules. Of course, OSTP may have given sufficient evidence of Holdren’s compliance in this case—an affidavit indicated that he forwarded or copied his official email account approximately 4,500 times—but courts should remain skeptical that all agency records have been forwarded when atypical means of conducting government business are at issue. One need only consider the ongoing saga of former Secretary of State Hillary Clinton’s private email accounts, where additional State Department records were uncovered even after she had averred that all such records had been turned over, to understand why this should be the case.

Second, assuming OSTP had copies of all agency records from Holdren’s personal account, it is not clear that these copies would actually be “duplicative.” For example, CEI argued that it sought Holdren’s email in “electronic format” along with any “metadata.” On this theory, copied or forwarded email records on OSTP’s servers may not, in fact, be “duplicative” because they may not include all original metadata. Judge Kessler found this line of argument unpersuasive and held that the metadata in Holdren’s personal email would “not in itself make each email unique as compared to the forwarded reproduction[.]” This conclusion is wrong and sets a dangerous precedent.

Metadata includes various types of information about an electronic document that are not usually visible, but reflect important characteristics concerning the document’s origin, alteration, or usage. It includes “substantive metadata,” such as tracked changes in Microsoft Word; “system metadata,” which is created by a computer system, such as the information contained in a file’s properties; and “embedded metadata,” such as hyperlink details or Excel formulae. See Aguilar v. Immigration & Customs Enf’t, 255 F.R.D. 350, 354–55 (S.D.N.Y. 2008) (discussing different types of metadata).

Numerous state courts have ruled that metadata forms an integral part of an electronic record and is subject to disclosure under state-based Freedom of Information regimes. No federal court has settled the question for the FOIA, but it seems appropriate to adopt a similar default presumption that metadata must be disclosed so long as it forms an integral part of an electronic record and is readily reproducible. A requester should not even need to specifically request integral metadata.

There may not be a one-size-fits-all approach to distinguishing different types of metadata and which form an integral part of a record. The best approach would take into account an agency’s storage practices and the type of electronic records at issue—Does the agency store email in a hard-copy format or electronically? Are electronic copies kept in native or near-native format? What sort of metadata is preserved in those formats? It would also consider an agency’s ability to readily reproduce metadata—Are email records readily releasable as PDF or MSG files? Finally, it would look to whether a requester has specified that he wants an agency to produce (rather than merely search for) records in a form that includes metadata. See, e.g., Citizens for Responsibility & Ethics in Washington v. Department of Education, 905 F. Supp. 2d 161, 171–72 (D.D.C. 2012) (“CREW did not request that DoEd produce its records in electronic format . . . DoEd thus had no obligation to produce the documents in any particular format.”) (internal citation omitted).

This proposed approach under the FOIA is supported by the treatment of metadata in other legal contexts. Under implementing regulations for the Federal Records Act, for example, “electronic record” is defined as “both record content and associated metadata that the agency determines is required to meet agency business needs.” 36 C.F.R. § 1220.18. “Metadata,” in turn, “consists of preserved contextual information describing the history, tracking, and/or management of an electronic document.” Id. When it comes to email records, some metadata can form an integral part of the electronic record. See id. § 1236.22(a). In the civil discovery context, when metadata exists as part of a document’s native format, it should be produced to an opponent. If a party seeks discovery of additional metadata, a court will typically grant it so long as the metadata is reasonably accessible and potentially relevant to the dispute at hand.

From the outset of its case, CEI argued that it sought agency records that were stored on Holdren’s personal email account in an electronic format. Metadata integral to those records (viz., sender, recipient, and “BCC” recipient information, etc.) might not have carried over in toto to the copies on OSTP’s servers. Such information could be instructive, as any litigator or investigative journalist would attest, and might even explain why Holdren was using a personal email account for official government business in the first place. The district court considered OSTP’s “duplicative” email records “functionally equivalent” to the originals on Holdren’s private account. That much is true when considering the visible content of the email. But that’s only half of the story. Metadata lurks beneath, and without the original integral metadata, any copies of Holdren’s email on OSTP’s servers are incomplete and not duplicative.

Ryan Mulvey is counsel at Cause of Action Institute.

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03/15/2017

Selective Memory: Presidential Control of Press and Information

Among people who know and use the Freedom of Information Act and similar laws to discover and report what the government is doing, this week is known as Sunshine Week, a time to promote government transparency. But a disorienting fog has settled in.

When was the last day that the news did not include a report about the President’s use of direct social media to avoid traditional press outlets whom he regularly disparages for using unlawfully leaked information to unfairly report what the government is doing and planning? Allegations abound that the administration regularly imposes unprecedented policies that restrict or remove access to government information and impede contacts between the press and knowledgeable civil servants.  For example:

“White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press.”

“It’s turning out to be the administration of unprecedented secrecy and unprecedented attacks on a free press.”

The “administration’s steadily escalating war on leaks, the most militant I have seen since the Nixon administration, has disregarded the First Amendment and intimidated a growing number of government sources of information — most of which would not be classified — that is vital for journalists to hold leaders accountable.”

The administration’s anti-leak effort “targets not only national security departments and agencies but most federal bureaucracies from the Peace Corps to the Social Security Administration and the Education and Agriculture Departments.”

“[W]e now have evidence of a pattern of anti-media behavior…. The suspicion has to be that maybe these ‘leak’ investigations are less about deterring leakers and more about intimidating the press.”

The administration’s “recent effort to stem leaks in the federal workforce doesn’t just exemplify … cluelessness. It verges on being a parody of it.”

The depth of dismay is hard to overstate. An executive editor of The New York Times put it this way: “I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush’s first term.”

But none of the above-linked stories is about President Trump or current events. All of these complaints were written about President Obama early in his second term.

This selection of stories about how the Obama administration manipulated the media and restricted independent access to government information is representative. If anything, it’s too cautious.  Readers can find much more, and much worse, reported by the most respected of voices. Even so, complaints about the relationship between the press and the Obama and Trump administrations and their unprecedented, programmatic restriction of access to information are strikingly similar.  Perhaps such practices sting more sharply after a President takes the oath and starts to govern.  Politico reports that the President’s aides are “obsessed with taking advantage of Twitter, Facebook, YouTube and every other social media forum, not just for campaigns, but governing.” Yet that story, too, was about President Obama, not President Trump.

Controlling information in service of a president’s political objectives is not new. It is not sui generis and did not spring forth fully formed like Athena from Zeus’s head—or President Trump’s.  The current administration has taken another step in a well-known progression, and not a big one at that.  In historical context we can recognize it without surprise as the next manifestation of Leviathan’s thirst for ever more power and control.  Bob Schieffer, after decades as a Washington correspondent and broadcast news anchor, sums up the situation this way:  “When I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now.”

Mike Geske is counsel at Cause of Action Institute

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03/15/2017

Speaker Ryan’s Odd Claim that HHS Secretary Price is Barred from Disclosing Regulatory Plans

In response to a question from a reporter during his press conference discussing the American Health Care Act, House Speaker Paul Ryan claimed that Secretary of Health and Human Services Tom Price couldn’t disclose his plans to provide regulatory relief from ObamaCare.  This regulatory relief is Phase Two in the Speaker’s three-phase plan to reform federal health law.  As far as we can tell, no such legal bar exists.

Here’s the exchange:

CNBC Reporter: You’ll need companies onboard to provide the optionality that you’re talking about and almost every industry organization has come out against this.  The reason why there isn’t as much participation as customers might like is because these companies can’t offer these products and still make money.  How do you get buy-in from the business community?

Speaker Ryan: It’s a great question.  Here’s what people aren’t seeing, which is Number Two.  Tom Price, for legal reasons, can’t tell you what he’s thinking about doing.  There’s laws that prevent that.  We can do so much deregulation through the Executive Branch by the Secretary of Health and Human Services.  He actually just put one regulation out the other day, which will go a long ways toward lowering the cost of health insurance.

We sent repeated emails to the Speaker’s office asking for an explanation or identification of which laws the Speaker was referencing, but they’ve gone unanswered.  Our own research has failed to uncover any laws that would prevent Secretary Price from discussing his regulatory plans.

What seems more likely is that either HHS hasn’t formulated all of its plans for regulatory relief or that, if it has, the Speaker is holding those cards close to his vest.  Either way, we know of no laws that prevent HHS from announcing its regulatory intentions either to Congress or the public, and Speaker Ryan hinders open debate on the issue by stating otherwise.

Josh Blackman has detailed some of the regulatory options available to HHS.  If the Speaker and Secretary Price intend to use any of these options, or have others of their own, they should disclose it to the public and not claim there are secret, unidentified laws that prevent them.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

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03/15/2017

Fighting Confusion and Complacency to Keep the IRS Accountable

It seems like a simple idea – the Freedom of Information Act (FOIA) allows any interested citizen to request documents from the people and agencies who exercise power over them. Elected officials have called it “our nation’s premiere transparency law” and one which serves a “crucial need … for open access to government information.”  Unfortunately, as one recent case shows, the process rarely works this way, leading to frustrating and sometimes bizarre results.

In 2014, Cause of Action Institute became concerned that lawyers employed by the Tax Division of the Department of Justice (DOJ) were being detailed to work at the White House. At least two of these attorneys had access to the confidential taxpayer information of administration opponents because of their prior work on lawsuits connected to the IRS “targeting” scandal, and giving them this kind of assignment was unprecedented.  Taxpayer information would normally be kept private from White House officials, including the president, but now a pipeline had been opened where such information could reach political appointees. [See our investigative report discussing this issue in greater detail]

IRS quotes[Excerpts from IRS letters complaining about having to search its own records. CoAI would later discover a search had already taken place]

The IRS has a long history of misusing tax information, one that reaches as far back as FDR. Without proper procedures or training, the same kind of misconduct will inevitably happen again no matter which political party is in charge.  To find out more about the attorney transfers and whether any steps had been taken to safeguard taxpayer privacy, we submitted a FOIA request to the Internal Revenue Service (IRS) for e-mails between three attorneys assigned to the White House and the IRS division at the heart of the targeting scandal.

The request was sent in January 2014. The first reply arrived a month later, but it was merely notification that the agency would be “unable to send the information” within the 20 business days required by FOIA.  A second delay letter arrived in May, followed by a third delay in August and yet another delay in December.

Finally, in April of the following year – a full 282 business days after the 20 business-day deadline – we received a response. But it was not the e-mails we requested; it was a notice that our request was now too broad and would be closed because searching the e-mails of three people was “an unreasonable burden upon the IRS.”  Even if this were true, which seemed very unlikely, the agency had violated its own rules by dragging out the process and then failing to give us a chance to narrow the request before rejecting it.  We pointed out these problems in an appeal of the IRS decision, but the agency refused to acknowledge these problems and again rejected our request.

In an attempt to figure out how the process had gone so wrong, we submitted another FOIA request in May 2016 requesting the “processing notes” for the original request.  These notes document what happens to a request once it arrives at a government agency.  They are internally made, follow a particular format, and should be among the simplest of documents to locate and share.  Yet the first delay letter soon arrived, and another one three months later.  Not wanting to wait for a third delay notification, we filed a lawsuit against the agency to get a full explanation of what happened.

Such lawsuits are often required to get a meaningful response from the government, and ours finally forced the IRS to release the processing notes for our original request. So what was the explanation for the agency refusing to conduct a simple search – and taking over a year to say so?

Apparently, there wasn’t one. The IRS tax law specialist processing the request had marked in her records all the way back in December 2014 that a search had been done and “produced no documents.”  This happened four months before the IRS called our request “an unreasonable burden,” seven months before the agency claimed it was “unable to initiate a search” at all, and a full two years before we filed suit just to discover the IRS could have saved everyone time and money simply by reporting its original findings.

Why would government officials compare our request to “an all-encompassing fishing expedition” if they already knew there weren’t any fish to catch? The answer, if there is one, remains to be seen.  The original FOIA request is the subject of a separate and ongoing lawsuit, but the IRS has not yet produced any responsive documents.  If no improper communication took place between the lawyers transferred to the White House and their former IRS colleagues, then that is good news.  If no ethics training was given to those lawyers, then that good news is merely a coincidence.  Whatever the truth turns out to be, it is a worrying sign that a simple request can result in years of delays, constant obstruction, contradictory answers, and no solid explanation for any of these.

John McGlothlin is counsel at Cause of Action Institute

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