Cause of Sunshine – Day One of Sunshine Week

Today marks the beginning of Sunshine Week, a nationwide celebration of government transparency and accountability.

Since our founding, Cause of Action Institute has been at the forefront of government transparency, using the Freedom of Information Act (FOIA) to shed “sunshine” on the inner workings of our local, state and federal government. As fundamental as our right to vote, an open and transparent government is necessary to ensure the health of our democracy.

The hard work of our investigators and lawyers has resulted in public officials caught violating the law, government policies and procedures, and our litigation and public reports have improved the public’s right to understand and see how their government operates.

This week, we’ll highlight some of Cause of Action’s most important FOIA and open government cases, recommended reforms to the existing law, and highlight some of our ongoing investigations as we demonstrate our commitment to ensuring the economic and individual rights of tax payers remain protected from the administrative state.

Matt Frendewey is Director of Communications at Cause of Action Institute.

Records Show Former FBI Chief of Staff Sent White House National Security Council Documents to Personal E-mail Account

Former FBI Chief of Staff James Rybicki forwarded a White House-originated e-mail with a draft speech for then-President Obama to a personal e-mail account in December of 2015. The FBI withheld in full the content of the draft speech after consulting with the White House National Security Council about its release. The e-mail was part of the last production of FBI documents in Cause of Action Institute’s FOIA litigation against the FBI regarding the work-related use of personal e-mail accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki.

The final FBI production also includes e-mails from former Drug Enforcement Agency (DEA) Administrator and FBI Chief of Staff Chuck Rosenberg, who repeatedly used a private e-mail account for official business in conversations with former FBI Director James Comey.
It’s concerning to see high ranking officials violating government policies – setting a poor example to those they’re responsible for supervising and undermining the public trust that all public business can be properly archived and disclosed. When public officials conceal their work – the economic and individual rights of taxpayers is at risk, which is why Cause of Action remains vigilant and committed to holding all government officials accountable.

You can view and download the documents from this production here:

The first document production can be viewed here, the second here, and the third here.

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8



Final Release Fourth Production 2 28 2019 (Text)

Federal Court Rules Agency Actions within Congressional Review Act Subject to Judicial Review

In a positive decision that will be felt throughout the federal government, the United States District Court for the District of Idaho recently ruled that agency compliance with the Congressional Review Act (CRA) is subject to judicial review. First signed into law in 1996, the CRA requires that agencies submit new and amended rules to Congress for review, creating an essential check on the increasingly powerful administrative state. The CRA was used effectively in the first year of the Trump Administration to overturn numerous Obama Administration rules. But language in the CRA raises a question about whether courts can review agency compliance.

In this case, a cattle-ranching operation based in Oakley, Idaho was adversely affected by the Bureau of Land Management (BLM), the Department of Agriculture, and the Forest Service’s controversial amended rules regarding land use in 11 western states, including Idaho. The ranchers alleged that because the agencies never properly submitted the land use amendments to Congress, the agencies violated the CRA. In an attempt to evade oversight that could potentially limit agency power, the government argued that the ranchers’ motion should be dismissed, claiming that an agency’s violations of the CRA are not subject to judicial review and thus, the Court lacks jurisdiction. The district court rejected the government’s argument, stating that “such un-checked authority does not make sense, defeats the general purpose of the act, is contradicted by the legislative history, and ultimately leaves third parties without any remedy at law against violations of the act itself.”[1] If the Court had ruled that agency compliance with the CRA is not subject to judicial review, it would have opened the door for agencies throughout the federal government to ignore the law’s constraint on their authority.

This case is not the only instance where government agencies have avoided complying with the CRA. In 2017, Cause of Action Institute released a list of 835 economically significant rules and regulations that appeared in the Federal Register but were not submitted to Congress, as required by the CRA. As Congress continues to delegate more and more authority to agencies, it is crucial that the CRA is used to ensure that agencies aren’t abusing their power and risking Americans’ economic freedom and prosperity. By recognizing that judicial review exists, this decision will require agencies to be accountable for their actions and will hopefully encourage them to submit all proposed rules to Congress for review.

 

Libby Rudolf is a litigation support analyst at Cause of Action Institute.

 

[1] Tugaw Ranches, LLC v. United States Department of Interior, et al., 2019 WL 938865 (D. Idaho 2019)

D.C. Court of Appeals Puts Free Speech, Media at Risk

Court refuses to rehear anti-SLAPP decision, exposing media outlets and nonprofits to defamation lawsuits

After a lengthy two-year delay, today the D.C. Court of Appeals denied the Competitive Enterprise Institute’s (“CEI”) motion for rehearing en banc asking the full court to review a decision that will expose media and nonprofit organizations throughout D.C. to lawsuits claiming their stories and commentary are defamatory.

The original decision arose from a lawsuit filed by Michael Mann, a climate scientist embroiled in the scandal to “hide the decline” in the Earth’s temperature record, against CEI and others who criticized his work.  CEI moved to dismiss the case under D.C.’s Anti-SLAPP statute, a law designed to prevent frivolous lawsuits that are used to harass people exercising their free-speech rights; in this case, their First Amendment right to debate important issues of public policy.  The D.C. trial court refused to dismiss the lawsuit, and CEI appealed.  The appellate court upheld the initial ruling and refused to dismiss the case.

CEI then moved for rehearing en banc and dozens of amici from across the ideological spectrum urged the D.C. Court of Appeals to rehear the case because of the significant impact on First Amendment rights and the huge amount of public policy debate that occurs in the District.  Cause of Action Institute filed one of those amicus briefs on behalf of Dr. Judith Curry, a climate scientist who Michael Mann has consistently harassed using methods similar to those he complains CEI used against him.  Today, the court refused to rehear the case, without a single judge asking for rehearing.  The court’s decision in effect declares open season on media and nonprofit organizations located in the District of Columbia.

It would appear the two options available to CEI now are either to ask the U.S. Supreme Court to hear the case or to go back to the trial court and fight the case on the merits.

James Valvo is counsel and senior policy advisor at Cause of Action Institute.

CoA Institute Sends Letter to Secretary Ross Requesting Public Confirmation of Controversial Fishery Regulation

The importance of an open and transparent government is rooted in the federal government’s ability to choose winners and losers, create barriers to economic freedom, and limit personal liberties. Family-owned fishing firms in New England recently had their economic freedom put at-risk when it was revealed that the government had secretly approved a proposal to impose new, and statutorily unauthorized, costs on their fishing operations. That’s why Cause of Action Institute (CoA Institute) sent a letter to U.S. Department of Commerce Secretary Wilbur Ross yesterday, criticizing his office’s lack of transparency and inadequate analysis surrounding the controversial fishery management regulations.

In January, CoA Instituted published a previously unreported letter, which revealed that the National Oceanic and Atmospheric Administration (NOAA) and the U.S Department of Commerce (Commerce) approved the New England Industry-Funded Monitoring Omnibus Amendment (Omnibus Amendment), but without providing any reasoned responses to public comments.  The approval also came in the midst of a second public comment period for implementing regulations. The Omnibus Amendment is estimated to impose new costs of up to $810-per-day on certain herring fishermen.  These costs, which will be used to fund a third-party monitoring scheme, would have  devastating economic consequences—especially for small and family-owned fishing operations.

Commerce’s failure to address the valid and pressing concerns raised by several interested parties in the first round of public comments, including questions about the statutory authorization for industry-funded monitoring raised by CoA Institute, is particularly egregious.  CoA Institute has repeatedly argued that the government lacks statutory authority to force commercial fishermen on the East Coast to pay for at-sea monitoring. The Secretary of Commerce was responsible for reviewing the Omnibus Amendment for compliance with applicable laws as well as considering public comments. The Secretary appears to have failed to do so in this case.  Government officials also are expected to conduct rulemaking in a manner that promotes accountability and transparency.  This is meant to protect the openness of the regulatory process. That transparency was seriously lacking in this instance.

CoA Institute’s letter requests that Secretary Ross (1) publicly confirm his approval of the Omnibus Amendment (2) and publish responses to the issues raised during the initial comment period. CoA Institute also requests that Commerce disapprove the implementing regulations for the Omnibus Amendment, which are expected to be finalized later this spring.  We look forward to a response addressing these concerns.

A copy of the letter to Secretary Ross can be found here. Additional background on this issue can be found here, here, and here.

Challenging the Auer Deference: Defending the Separations of Powers by Reigning in the Administrative State

In a 1997 ruling, the U.S. Supreme Court created what’s known as Auer deference, greatly expanding the powers of federal agencies to interpret the very regulations they create, and receive the benefit of deference from federal courts when doing so. Auer up ends the separation of powers, a vital component of liberty, by allowing executive agencies to act as the legislative and judicial review of their own agency powers. Cause of Action Institute has joined with numerous other organizations to challenge Auer, by submitting an amicus brief to the U.S. Supreme Court in Kisor v. Wilkie.

Such a blending of powers allowed by Auer, undermines the separation of powers as laid out by the Founders and within the Constitution, and should be overturned.

Additional Reading:

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

CoA Institute Calls on Institute for Museum and Library Services to Revise Proposed FOIA Regulations

Cause of Action Institute (CoA Institute) submitted a comment yesterday to the Institute for Museum and Library Services (IMLS) concerning the agency’s proposed rule implementing revised Freedom of Information Act (FOIA) regulations. The IMLS is a small government agency responsible for providing financial and institutional support to libraries and museums at the state and local level. In its comment, CoA Institute highlighted the agency’s improper retention of a fee definition that conflicts with the FOIA statute and warned the agency about potential confusion stemming from its directives for staff to administer the FOIA in light of outdated guidelines published by the Office of Management and Budget (OMB).

Link: Institute of Museum & Library Services – Public Comment re FOIA Rule

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 its fee guidelines.  The OMB Guidelines therefore should not be used as a reference point for 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 significantly from the definition provided by OMB in 1987. OMB’s definition, as well as the current regulatory definition maintained by the IMLS, incorporates an “organized and operated” standard, which 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. The lawsuit is still pending with respect to the fee guidelines, although the agency has agreed to update its own implementing regulations (and to abandon the “organized and operated” standard).

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. Moreover, each agency has its own independent duty to ensure that its regulations do not contradict statutory language. Ensuring such conformity with the law must be a central focus of all regulatory reform.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Institute of Museum & Library Services – Public Comment re FOIA Rule