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02/1/2019

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 Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

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01/9/2019

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warned the agency about potential confusion stemming from its directives for staff to administer the FOIA in light of outdated guidelines published by the Office of Management and Budget (OMB).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

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01/8/2019

Government Officials Ignore Public Comment, Create New Financial Burden on Fisherman

In a letter acquired by Cause of Action Institute (CoA Institute), it appears that the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Department of Commerce have approved a controversial fishery management proposal while ignoring public comments critical of the plan. This approval also seems to have been issued before the close of a second public comment period for implementing regulations. The NOAA rulemaking is expected to seriously impact commercial fishing on the Eastern seaboard by applying costly new burdens on fishermen.

The Background

In September 2018, the New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), a component of NOAA, sought approval for a controversial set of regulatory measures known as the New England Industry-Funded Monitoring Omnibus Amendment. The Omnibus Amendment would create a new financial burden on fishermen by mandating that they pay as much as $810 per sea day for at-sea monitoring in the Atlantic herring fishery. It would also create a standardized process for introducing similar costly monitoring requirements to other New England fisheries.

CoA Institute argued in its initial public comment on the Omnibus Amendment that the burdensome monitoring would unfairly and unlawfully restrict economic opportunity in the fishery. Aside from the questionable legal authority to create this effective new tax on fishermen, the $810-per-sea-day cost has the potential to wipe out the narrow margins that small-scale fishermen rely on to survive.

Following the publication of the notice of availability for the Omnibus Amendment, but before any approval decision was made, the agency oddly proposed implementing regulations in November 2018. Again, CoA Institute filed a public comment in opposition to the regulations.

CoA Institute’s second comment reiterated the legal infirmities with the funding scheme and, among other things, highlighted fatal flaws in the rulemaking’s Environmental Assessment. For example, after NEFMC’s adoption of the Omnibus Amendment’s herring measures, herring quota was reduced by more than 50%. The Council and NMFS plan to lower the annual catch limit even further over the next three years. By some estimates, these new cuts could reduce herring revenue by up to 87%. Such a loss in profitability on top of the costs associated with industry-funded monitoring would cripple fishermen who rely on the industry. Yet the government has done nothing to address these concerns or dilemma.

The Letter

Now, CoA Institute has discovered a letter from Michael Pentony, the Regional Administrator for NMFS’s Greater Atlantic Regional Office, which suggests that the Commerce Department has already approved the Omnibus Amendment, despite the fact that nothing has been published in the Federal Register, posted to NMFS’s herring bulletin, or communicated to the general public.

This supposed “approval” of the Omnibus Amendment ostensibly occurred on or around December 18, 2018, nearly a week before the close of public comment on NMFS’s implementing regulations. Given the agency’s publication of a notice of availability, and its solicitation of public comments on the substance of the Omnibus Amendment, it should also have published its approval decision for the fishery management plan in the Federal Register.

The fact that NMFS secretly approved the Omnibus Amendment, perhaps to avoid public outcry, only adds to concerns surrounding its decision to propose implementing regulations before publicly approving, in part or in full, the amendment’s various management measures, including industry-funded monitoring. Taken together, these facts strongly suggest the government prejudged the legality of the Omnibus Amendment and intended to force it through no matter the pushback. Indeed, it seems the government never planned to give adequate attention to the concerns raised by stakeholders, including CoA Institute. Those concerns certainly went unaddressed in the newly discovered letter.

The Questions

Administrator Pentony’s letter indicates that NMFS does not have adequate funding to administer the at-sea monitoring and portside sampling programs in the herring fishery for the current fishing year, which already started on January 1, 2019. Instead, NMFS would plan to implement the industry funding requirement in 2020. This estimated date of implementation, however, assumes that the Omnibus Amendment will not face challenge in the courts. CoA Institute has filed a Freedom of Information Act request for background information on the December 18, 2018 letter, and the possible reasoning for why the agency has yet to make any public announcements. We will provide additional details as they become available.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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01/4/2019

Cause of Action Institute Submits Comment Criticizing Proposed Revisions to Department of the Interior’s FOIA Regulations

Cause of Action Institute (CoA Institute) yesterday submitted a public comment to the Department of the Interior (DOI), criticizing the agency’s proposed revisions to its Freedom of Information Act (FOIA) regulations.  DOI’s amendments, which were published in the Federal Register in the final days of 2018, have already received negative attention from media sources, which suggest that the changes are intended to frustrate public access to records.  The government, for its part, claims that the revisions are necessary to deal with the marked increase of requests during the Trump Administration and to promote efficiency in the administration of the DOI FOIA program.

CoA Institute’s comment covers a variety of topics, but three are worth highlighting.  First, DOI seeks to prohibit intra-agency forwarding of “misdirected” requests.  But this proposal runs afoul of clear statutory directives.  Under Section 552(a)(6)(A)(ii) of the FOIA, the twenty working-day time frame for responding to a request begins to run once a request is received by an “appropriate component,” that is, the agency office likely to maintain responsive records.  In computing those twenty days, an agency is permitted no more than ten days to redirect any requests that have been sent to the wrong bureau or component.  In other words, so long as the agency has received the request, it is already under an obligation to begin processing it.  This “routing requirement” was introduced by the OPEN Government Act of 2007, and it has been consistently interpreted by the Department of Justice’s (DOJ) Office of Information Policy as prohibiting agencies from refusing to honor requests that have merely been sent to an incorrect office.

Beyond the legal deficiency in the elimination of intra-agency forwarding, it is not clear whether the change would even promote the efficiency goals envisioned by the rulemaking.  By refusing to forward misdirected requests, DOI may instead create an incentive for requesters to submit nearly-identical requests to multiple bureaus.  That could increase the FOIA backlog.  The elimination of intra-agency forwarding also would unfairly require requesters to identify the precise locations where the agency should conduct its search for responsive records.

Second, DOI wants to require requesters to describe the “discrete, identifiable agency activity, operation, or program” that their records requests concern.  Such ambiguous language imposes an unacceptable burden on requesters, who need only provide a “reasonable description” of the records they seek such that a knowledgeable professional within the agency could locate responsive material with reasonable effort.  DOI would similarly refuse to accept “broad requests,” despite the fact that OIP has advised agencies for over thirty years that “[t]he sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not ‘reasonably describe’ records[.]”

Third, and finally, DOI proposes to change its regulatory definition of a “record” by deviating from the statutory text and importing language from the Privacy Act.  CoA Institute has diligently followed developments in how the government defines a “record” under the FOIA.  In October 2018, we filed a lawsuit against the Department of Justice, challenging guidance that would permit agencies to break a single record into multiple smaller records, redacting information that should otherwise be public and that would not meet allowable exemptions under the FOIA statute.  DOI’s proposed rule follows this troubling guidance, particularly in its use of the Privacy Act’s definition of a record as “any item, collection, or grouping of information.”

DOI’s proposed definition of a record also includes items that are “reasonable encompassed by [a] request.”  This phrase seems to contemplate a relationship between the definition of a record and an individual request.  Yet a requester may only seek the disclosure of pre-existing records.  To allow the definition of a record to vary depending on any particular request would move away from an objective standard and allow FOIA officers too much discretion in the processing of potentially responsive materials.

CoA Institute is hopeful that DOI will accept these constructive comments, and others, and make any necessary corrections before publishing its final rule.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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01/4/2019

Investigation Update: The FBI’s Third Production of Documents Showing Personal Email Use by High-Level Employees

Cause of Action Institute (CoA Institute) has obtained a third batch of documents in our investigation of personal email use by former FBI Director James Comey and former FBI Chief of Staff James Rybicki. The FBI’s latest records production is the third of four rolling productions. The first document production can be viewed here and the second here.

The FBI produced 101 pages of records that cover one year of FBI operations calendars between December 2014 and December 2015 that former FBI Chief of Staff James Rybicki forwarded to his personal email account. As with previous document productions, the FBI appears to improperly redact names of FBI employees, even though they can be easily identified. For example, this February 2015 travel manifest redacts Director Comey’s name despite the fact that his speech at the conference is public knowledge according to local press reports: “The training, which began Monday at Foxwoods Resort Casino in Mashantucket, Connecticut, included a keynote address by FBI Director James Comey. The LEEDS training description said it “enables participants to reflect upon and regroup for the next stage of their careers.”
You can view and download the documents here:



18 Cv 1800 File 2 Section 1 Part 2 (Text)

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

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12/21/2018

CoA Institute Discovers Curious DHS FOIA Notification Process for Employee Records

Earlier today, Cause of Action Institute (CoA Institute) received a misdirected email from the Department of Homeland Security (DHS) that apparently was intended to serve as a notification to an unidentified agency employee that certain personnel records were to be released under the Freedom of Information Act (FOIA).

The “awareness” email indicated that employee-related records were scheduled to be released in response to a FOIA request.  It also identified the name of the FOIA requester—a CoA Institute employee—and included an attached file containing the records at issue.  The email was issued “[i]n accordance with DHS Instruction 262-11-001,” which is publicly available on the DHS’s website and appears to have been first issued at the end of February 2018.

Under Instruction 262-11-001, the DHS is required to “inform current [agency] employees when their employment records . . . are about to be released under the FOIA.”  “Employment records” is defined broadly to include any “[p]ast and present personnel information,” and could include any record containing personal information (e.g., name, position title, salary rates, etc.).  Copies of records also are provided as a courtesy to the employee.

The DHS instruction does not attempt to broaden the scope of Exemption 6, and it recognizes that federal employees generally have no expectation of privacy in their personnel records.  More importantly, the policy prohibits employees from interjecting themselves into the FOIA process.  This sort of inappropriate involvement has occurred at DHS and other agencies in the past under the guise of “sensitive review,” particularly whenever politically sensitive records have been at issue.

Nevertheless, the DHS “awareness” policy still raises good government concerns.  As set forth in the sample notices appended to the instruction, agency employees are routinely provided copies of responsive records scheduled for release, as well as the names and institutional affiliations of the requesters who will be receiving those records.

To be sure, FOIA requesters typically have no expectation of privacy in their identities, and FOIA requests themselves are public records subject to disclosure.  There are some exceptions.  The D.C. Circuit recently accepted the Internal Revenue Service’s argument that requester names and affiliations could be withheld under Exemption 3, in conjunction with I.R.C. § 6103.  Other agencies, which post FOIA logs online, only release tracking numbers or the subjects of requests.  In those cases, a formal FOIA request is required to obtain personally identifying information.

Regardless of whether the DHS policy is lawful, it is questionable as a matter of best practice.  Proactively sending records and requester information to agency employees could open the door to abuse and retaliation, particularly if an employee works in an influential position or if a requester is a member of the news media.  The broad definition of “employee record” also raises questions about the breadth of implementation.

Finally, there are issues of fairness and efficiency.  If an agency employee knows that his records are going to be released, is it fair to proactively disclose details about the requester immediately and without requiring the employee to file his own FOIA request and wait in line like anyone else?  The public often waits months for the information being given to employees as a matter of course, even though the agency admits that there are no cognizable employee privacy interests at stake.

More importantly, an agency-wide process of identifying employees whose equities are implicated in records and individually notifying them about the release of their personal details likely requires a significant investment of agency resources.  Would it not be more responsible to spend those resources on improving transparency to the public at large?  To reducing agency FOIA backlogs?  Notifying employees whenever their information is released to the public is likely only to contribute to a culture of secrecy and a further breakdown in the trust between the administrative state and the public.

Ryan P. Mulvey is Counsel at Cause of Action Institute

2018.02.20 DHS Instruction 262-11-001

2018.12.20 DHS Notification Email

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12/12/2018

Investigation Update: VA releases 2014 memo on “sensitive review,” but fails to conduct an adequate search for more recent FOIA guidance

  • In August 2018, a group of eight Democratic Senators, wrote to the Department of Veterans Affairs (VA) to express alarm over the possible politicization of the agency’s Freedom of Information Act (FOIA) processes. Specifically, they were concerned about the involvement of political appointees in the FOIA decision-making process.
  •  Cause of Action Institute (CoA Institute) submitted a FOIA request to the VA seeking records about the agency’s “sensitive review” process, but the agency only disclosed a single document. After considering CoA Institute’s appeal, the VA Office of General Counsel ordered supplemental searches for additional records.
  • “Sensitive review” raises serious transparency concerns because the involvement of political appointees in FOIA administrative can lead to severe delays and, at worst, improper record redaction and incomplete disclosure.
  • Whenever politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will have an incentive to enforce secrecy and non-disclosure.

Earlier this year, CoA Institute opened an investigation into the sensitive review process at the VA. As I mentioned in an earlier post, the public has long been aware of internal practices at the agency that could open the door to FOIA abuse. During the Bush Administration, the VA issued a directive concerning the processing of “high visibility” or “sensitive” requests that implicated potentially embarrassing or newsworthy records. The Obama White House subsequently updated that guidance in October 2013, when the VA instructed its departmental components to clear FOIA responses and productions through a centralized office. This clearance process imposed a “temporary requirement” for front office review and entailed a “sensitivity determination” leading to unnamed “specific procedures.”

Another record recently disclosed to CoA Institute illustrates how the VA again updated its sensitive review process in February 2014. According to the memorandum, the agency intended to continue its “long standing” procedure for notifying leadership of incoming FOIA requests that may be “substantial interest to the Office of the Secretary.” Exact guidance on the sorts of requests that would trigger such review, however, was still under development at the time. It is unknown how the notification process was implemented in the absence of that guidance.

To date, the VA has failed to disclose any further records about sensitive review. CoA Institute successfully appealed the Office of the Secretary’s final response, and the agency’s Office of General Counsel ordered additional searches on remand. A precise deadline for a supplemental response was not given, but we will provide updates as any additional records become available.

In light of its commitment to open government, CoA Institute has been a leader in examining cases of sensitive review at other agencies, including the National Oceanic and Atmospheric Administration and the Federal Aviation Administration. We also have analyzed the practice at the Environmental Protection Agency on several occasions (here, here, and here). A recent press report concerning the EPA confirmed our warnings about the potential for delay when “sensitive” or politically charged records are targeted for special processing.

Regardless of which party or president controls the government, sensitive review poses a serious threat to government transparency. Alerting or involving political appointees in FOIA administration can lead to severe delays and, at its worst, contribute to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.

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Ryan P. Mulvey is Counsel at Cause of Action Institute.

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

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