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12/11/2018

CoA Institute Highlights Deficiencies in Proposed Rule to Shift Burdensome Costs of At-Sea Monitoring to Commercial Fishermen

The New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), seeks to approve and implement a controversial set of regulatory amendments that would create a new industry-funding requirement for at-sea monitoring in the Atlantic herring fishery and, moreover, create a standardized process for introducing similar requirements in other New England fisheries.  Under the so-called Omnibus Amendment, the fishing industry would be forced to bear the burdensome cost of allowing third-party monitors to ride their boats in line with the NEFMC’s supplemental monitoring goals.  This would unfairly and unlawfully restrict economic opportunity in the fishing industry.

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12/7/2018

Records Show How Former FBI Director James Comey Misled the DOJ Inspector General About His Personal Email Use

Cause of Action Institute (CoA Institute) has obtained a second batch of former FBI Director James Comey and former FBI Chief of Staff James Rybicki’s emails sent or received on their personal, non-official email accounts to conduct agency business. The FBI’s latest records production is the second of four rolling productions. The FBI reviewed 518 pages of emails and released 439 pages to CoA Institute. Once again, these emails undermine Director Comey’s statements concerning the types of matters he discussed while using his personal email to conduct official business.

Last month, CoA Institute published the first set of records received as part of our FOIA lawsuit. Contrary to Director Comey’s representations to the DOJ that he never used his personal email account for “sensitive work,” the first batch of emails we obtained revealed otherwise. Those records included emails withheld in full and others redacted in part under the FOIA’s law enforcement exemption, which exempts from public disclosure certain sensitive information created or compiled for law enforcement purposes.

This new second batch of emails tells much of the same story. For example, the redactions in the completely redacted email below cite 3 bases for the application of the law enforcement exemption (b7A, C, & E). These exemptions pertain to information that, if released, could (A) interfere with law enforcement proceedings, (C) constitute an invasion of personal privacy, or (E) disclose law enforcement techniques and thereby risk circumvention of the law. In other words, the FBI determined that the work Director Comey conducted on his personal account was so sensitive in nature that it justified redaction under Exemption 7 of the FOIA to prevent disclosure to the public.

As explained in the FBI’s cover letter accompanying the production to CoA Institute, the FBI is only providing emails that Director Comey and his Chief of Staff forwarded or copied to their official FBI email accounts: “The FBI conducted email searches for any communications to or from James Rybicki’s and James Comey’s personal email accounts, located within Rybicki’s and Comey’s FBI email accounts.”  This follows from Director Comey’s claims that all FBI-related work he conducted on Gmail was forwarded to an official FBI account. As Director Comey told the DOJ Inspector General:

“I was always making sure that the work got forwarded to the government account to either my own account or Rybicki, so I wasn’t worried from a record-keeping perspective was, because there will always be a copy of it in the FBI system.”

But if Director Comey misrepresented the nature of the work he conducted on his personal email account, a plausible concern arises as to whether Director Comey thoroughly searched and forwarded all work related emails from his personal account to his government account This is why using private email accounts for government business is so problematic: The agency—and ultimately the public—must rely on the very people who are violating the rules by using personal email accounts to forward their work-related emails to official government accounts. If they forget or choose not to copy an official account, there is little chance the agency will ever search for and recover the federal records created or received on those personal accounts. And that means those records cannot be produced to the public under the FOIA.  The use of non-official accounts to conduct agency business, whatever the reasoning, imperils transparency, accountability, and good government, and it undermines trust.

You can view and download the documents here:

Part 1 (411 pages)

Part 2 (30 pages)

FBI Cover Letter

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

Thomas Kimbrell is an Investigative Analyst at Cause of Action Institute.

____________________________________________________________

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

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12/4/2018

Congress May Give the FTC More Money and Power, Making Its Internal Watchdog More Important than Ever

  • Congress may grant more power and money to the FTC, even though it needs stronger oversight from its internal watchdog at its current budget and authority.
  • Currently, FTC’s internal watchdog is hired and fired by the FTC, and lacks independence
  • Left unchecked, the powers of the FTC can undermine the ability for entrepreneurs and innovators to reach their full potential

In a recent hearing before the Senate Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security, the five commissioners of the Federal Trade Commission (FTC) requested more resources and authority, and Senators on the committee appear inclined to approve the FTC’s request. According to National Journal:

“I’ve never met an agency, or a department or a commission, that didn’t believe they needed more resources,” [Senator Jerry] Moran said. “I hear it on an ongoing basis. But I think this is different.”

Senator Moran, who chairs the Subcommittee, assembled the five FTC commissioners to hear their recommendations for a burgeoning bill to create a national standard on data privacy. FTC Chairman Joseph Simons opportunistically pushed for greater funding and the authority to make additional rules on data protection and levy civil fines against corporate actors found to have violated consumers’ privacy; and the senator found himself “sympathetic” to the pitch.

However, greater power requires greater accountability, and the FTC’s past use of its funding and authority has not been without controversy. In August 2018, Cause of Action Institute (CoA Institute) submitted comments outlining structural and procedural reforms to prevent the FTC from abusing its authority in the future. Without those reforms and a potential increase in the Commission’s budget and authority, effective oversight of the FTC will be as important as ever.

To that end, the FTC’s Inspector General (IG) is charged with ensuring the agency doesn’t overreach its authority, but CoA Institute’s experience with the IG suggests the office may be reluctant to hold the FTC accountable. This could be because the FTC IG is constrained by its lack of structural independence but also could be because of the IG’s cozy relationship with the agency. While many Inspectors General are nominated by the President and confirmed by the Senate to oversee their respective agencies, the FTC is one of 29 agencies where the IG is appointed by—and can be removed by—the head of the agency.

Most recently, Chairman Simons appointed Andrew Katsaros as the FTC’s Acting IG on June 8, 2018, following Roslyn Mazer’s retirement after three years as IG. So, not only was IG Katsaros chosen by the head of the agency he is supposed to oversee, but he is also designated only as “Acting IG.”  Crucially, the Project on Government Oversight (POGO) notes that acting inspectors general are less effective than permanent inspectors general:

Inspector general offices are most effective when led by a permanent inspector general, rather than an acting official … a permanent IG has the ability to set a long-term strategic plan for the office, including establishing investigative and audit priorities. An acting official, on the other hand, known by all IG office staff to be temporary, may tend to lack direction or vigor.

Curiously, while many inspectors general make their investigative reports public (there is a website dedicated to just publishing these reports from across the government), the FTC IG does not. It appears the FTC IG’s investigative reports aren’t available without a FOIA request, which CoA Institute recently submitted to obtain a September 30, 2015 report (a revised version was sent on October 16, 2015) relevant to one of our prior cases defending against FTC overreach. The report takes the form of a letter from the FTC IG to the U.S. House Committee on Oversight and Government Reform (OGR) regarding the FTC’s handling of its case against LabMD, a small cancer detection lab that, despite ultimately prevailing in court, was put out of business by the FTC’s egregious overreach.

The first substantive section of the letter suggests the IG had no interest in conducting oversight if OGR was investigating the matter, even though IGs and congressional committees commonly conduct investigations in tandem into the same matters: OGR “staff’s representation that they would cease investigative activity factored strongly in the OIG’s decision to initiate investigative activity.”  The IG also complained that OGR did not provide the IG documents related to the inquiry, but the IG has the authority to conduct interviews and request documents from the agency to conduct its oversight duties.

Further, OGR published a report in January 2015 outlining many troubling findings related to FTC’s conduct in the LabMD case. Despite having access to that report, the FTC IG appears to have written its letter more like the agency’s defense counsel, rather than its independent overseer.

For example, the IG’s letter tries to roll back the position the FTC previously represented to OGR on a key issue in a way that is favorable for the agency:

From the OGR Staff Report Dated January 2, 2015:

The FTC admitted that the use of Tiversa’s information was unusual relative to standard agency operating procedures for enforcement measures.

From the FTC Letter to OGR on September 30, 2015:

Based on our investigative activities, the OIG found that the FTC handled evidence received from Tiversa in the same manner it had handled other evidence about data security breaches.

There are other aspects of the letter that also suggest disinterest in holding the FTC accountable. The IG went out of its way to note that LabMD had lost rulings in various federal courts:

We note that LabMD litigated cases against the FTC in the U.S. District Court for the Northern District of Georgia and the U.S. Court of Appeals for the Eleventh Circuit. Both courts denied LabMD’s motion for preliminary relief for lack of jurisdiction.

It’s unclear why the FTC IG felt the need to mention that fact, but its inclusion was incredibly short-sighted considering LabMD won its case before the FTC Administrative Law Judge less than two months later and would eventually win before the Eleventh Circuit Court of Appeals in 2018.

Concerned about the independence and prior work of the FTC’s IG, CoA Institute sent a FOIA request in September 2018, asking for the IG’s five most recent investigative reports, a list of all preliminary investigations opened from January 2012 to the present, and a list of all investigations closed from January 2012, to the present. We have yet to receive any responsive documents from the agency.

If Congress follows through with empowering the FTC with more authority and money, the FTC IG needs to do more to safeguard tax dollars and prevent overreach, waste, fraud, and abuse. History teaches that so far it hasn’t been up to the task.

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

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11/28/2018

Supreme Court Rules Economic Impact of Fish and Wildlife Decision Subject to Judicial Review

In an ongoing battle between landowners and the federal government, the U.S. Supreme Court unanimously ruled against the U.S. Fish and Wildlife Service, in Weyerhaeuser Co. vs. U.S Fish and Wildlife Service, when it designated private land in Louisiana as “unoccupied critical habitat.”  In a significant portion of the Court’s opinion, it also ruled against the government’s effort to block judicial review of that designation.  Had the Supreme Court upheld the Fifth Circuit’s determination and denied judicial review, agencies throughout the government would be permitted to make unconstrained decisions, potentially depriving individuals and businesses affected by the regulatory powers of the administrative state of their right to challenge agency abuse and discretion in court.

Today’s decision marks an important victory in our ongoing effort to reign in the government’s abuse of power and ensure citizens can seek recourse in the courts when the government infringes on our freedoms.  We filed an amicus brief in this case because it was clear that the government had abused its discretion by designating inhabited and inhabitable land as “unoccupied critical habitat,” and then blocked the rights of citizens subject to these decisions to seek review and recourse from the courts.

The designation of private land in Louisiana as “unoccupied critical habitat” at issue in this case is not only questionable on its face, as the species it’s intended to conserve cannot survive on the land as it is now, but it also significantly threatens the economic freedom and property rights of the landowners, potentially costing them $34 million in lost development opportunities.  Lower courts previously determined that the agency action in this case, though “odd,”[1] is not subject to judicial review and subsequently deferred to the agency’s decision.

As CoA Institute pointed out to the court in our amicus brief, and as the Supreme Court stated in its opinion, there is a “strong presumption favoring judicial review of administrative action.”[2]  Further, the narrow exception to judicial review of agency action under Section 701(a)(2) of the Administrative Procedure Act only applies when the action falls within one of the traditional categories committed to agency discretion or is one of the “rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”[3]  These exceptions are intended to reduce and specify the circumstances in which agency action is exempt from judicial review, not broaden them.  The Supreme Court notes that not only does the Service’s decision in this case fail to apply to one of the exceptions, but it “involves the sort of routine dispute that federal courts regularly review.”[4]

In addition to addressing whether the agency’s action was subject to judicial review, the Supreme Court was asked to address whether the ESA prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation. In its opinion, the Supreme Court asked the Fifth Circuit to consider the meaning of the word “habitat” in its decision, for the land at issue must first and foremost be “habitat” if it is to be designated as “critical habitat.” Additionally, they asked the Fifth Circuit to consider whether the Service’s cost and benefits analysis of the designation was flawed and thus made the Service’s decision not to exclude the land at issue “arbitrary, capricious, or an abuse of discretion.”[5]

Read more about this case in our previous blog post here.

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

 

 

[1] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F. Supp. 3d. 744, 758–59 (E.D. La. 2014).

[2] Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1651 (2015).

[3] Lincoln v. Vigil, 508 U.S. 182, 191 (1993).

[4] Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71, slip op. at 12 (U.S. Nov. 27, 2018).

[5] Id. at 15.

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11/14/2018

CoA Institute opens government-wide investigation into agency implementation of the FOIA’s “foreseeable harm” standard

Cause of Action Institute (CoA Institute) launched an investigation last week into the Administration’s implementation of the Freedom of Information Act’s (FOIA) “foreseeable harm” standard.  That provision, which was added to the statute with passage of the FOIA Improvement Act of 2016, is designed to ensure that federal agencies only withhold requested records when they “reasonably foresee” that disclosure would harm an interest protected by a statutory exemption.  This “foreseeable harm” standard builds upon the so-called “presumption of openness,” which was introduced on a discretionary basis by the Obama White House.

Among other things, the FOIA Improvement Act of 2016 amended the FOIA to codify the “foreseeable harm” standard and require agencies to go beyond mere formulaic justifications for redacting records. Congress thus raised the standard by which an agency must evaluate its withholdings.  It is no longer enough that an agency make a case for the technical application of an exemption; it must instead articulate precise reasons why specific records, or portions of records, could be reasonably foreseen to harm a cognizable interest.  The unambiguous language of the “foreseeable harm” standard manifests Congress’s intent to require something more of an agency when it defends its withholding.

CoA Institute’s latest investigative efforts are particularly necessary given the complete failure of the Department of Justice Office of Information Policy (OIP)—which is tasked with providing guidance to the rest of the Executive Branch on proper administration of the FOIA—to publish any government-wide directives on the proper interpretation and implementation of the “foreseeable harm” standard.  Moreover, individual agencies have failed to proactively disclose any policies they may have developed, and federal courts have been slow to grapple substantively with the import of the new standard.

Based on records obtained from prior FOIA productions or publicly available sources, CoA Institute has identified passing references to agency-specific guidance on the “foreseeable harm” standard at three agencies, including the (1) Environmental Protection Agency, (2) U.S. Fish and Wildlife Service, and the (3) National Oceanic and Atmospheric Administration.  The actual substance of such guidance remains undisclosed.  But the records requested by CoA Institute in a recent batch of twenty-five FOIA requests should provide helpful insight into the administration of the FOIA and the “foreseeable harm” standard at these three agencies and many others.

Government accountably is a core pillar of our constitutional democracy.  And because the FOIA process is an integral vehicle for maintaining transparency, it is essential that we understand how agencies are upholding their statutory obligations, or whether they are politicizing the FOIA process by keeping information secret and out of public hands. CoA Institute will continue to track and publicize the responses to its requests as they are received.

The following agencies are part of CoA Institute’s “foreseeable harm” standard investigation:

  1. Department of State
  2. Department of the Treasury
  3. Internal Revenue Service
  4. Department of Defense
  5. Department of Justice
  6. Department of the Interior
  7. Department of Agriculture
  8. Department of Commerce
  9. Department of Labor
  10. Department of Health & Human Services
  11. Department of Transportation
  12. Department of Energy
  13. Department of Education
  14. Department of Veterans Affairs
  15. Department of Homeland Security
  16. White House Office of Management and Budget
  17. General Services Administration
  18. Small Business Administration
  19. Office of Personnel Management
  20. Council of Inspectors General on Integrity & Efficiency
  21. Federal Trade Commission
  22. Amtrak
  23. Administrative Conference of the United States
  24. Environmental Protection Agency
  25. Presidio Trust

A copy of the FOIA request directed to the Department of Defense, which is substantially similar to all the other requests, can be seen below:

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

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11/13/2018

HUD Emails Reveal Significant Agency Confusion Regarding 2013/2014 Multi-Billion Dollar Mortgage Settlements

More than three years ago, Cause of Action Institute (CoA Institute) filed a Freedom of Information Act (FOIA) request for information related to the U.S. Department of Housing and Urban Development’s (HUD) involvement in the 2013/2014 multibillion-dollar mortgage settlements between the U.S. Department of Justice (DOJ) and Bank of America, J.P. Morgan Chase, and Citigroup. The settlements, drafted by a number of government agencies including HUD, were intended to make the banks pay compensation for their alleged involvement in faulty residential mortgage securities practices that contributed to the 2008 financial crisis.

The agreements included “consumer-relief provisions” that required or permitted banks to provide billions of dollars in “donations” to government-approved third parties in lieu of paying funds to the U.S. Treasury. CoA Institute was suspicious of how this money would be given out, and we suspected favored special interest groups from the Obama-era were lobbying high-level HUD officials and seeking hand-outs. In 2016, CoA Institute filed a complaint after HUD failed to produce records responsive to our 2015 FOIA request, and in late 2016, the agency began producing responsive documents. As CoA Institute explained in a 2017 blog post, many of the early communications produced show evidence of the behavior we’re most concerned with. However, the most recent productions reveal an additional troublesome fact – there was a significant amount of uncertainty among influential HUD officials regarding the details of the agreements that led to HUD employees scrambling to answer settlement-related questions posed by popular media outlets.

The following screenshots are excerpts of internal HUD email communications regarding an inquiry from Fox News in 2015, about a year after the settlements were finalized. A Fox News reporter questioned whether La Raza and NeighborWorks America, both intermediaries[1], were “HUD-approved” and eligible to receive funding under the terms set forth in the settlements. Despite being responsible for providing the list of eligible beneficiaries for consumer-relief donations, HUD officials reveal in these communications a significant amount of uncertainty, confusion, and disagreement regarding what organizations are eligible to receive such donations. Specifically, they struggled to determine whether intermediaries and housing counseling agencies or solely housing counseling agencies were entitled to receive the funding. The screenshots included below are only pieces of the full email thread that continued for many pages as HUD personnel went back and forth with each other in an attempt to find answers.

Most of the individuals included in these emails were not only senior HUD officials at the time of the correspondence, but they were also in similar, if not the same, positions at the time the settlements were drafted. Those individuals included: Michelle Aronowitz was the Deputy General Counsel for Enforcement and Fair Housing from October 2009 until January 2017; from about 2009 until 2017, Jacob Press was a legal counsel and worked in HUD’s congressional relations office; Edward Golding was a senior advisor until April 2015 when he became the Principal Deputy Assistant Secretary for Housing; Sarah Gerecke remains the Deputy Assistant Secretary at the Office of Housing Counseling, the same role she had when the settlements were drafted.

The confusion illustrated in these communications raises a number of questions, including why didn’t these prominent HUD officials know which types of organizations (e.g., intermediaries, housing counseling agencies, etc.) were eligible to receive funding? And, why did it take so long to determine which organizations were considered “HUD-approved housing counseling agencies”? These are questions that should have been resolved in 2013 when the settlements were being drafted rather than a year after they were finalized. This confusion further illustrates the disturbing nature of these agreements, which benefited a substantial number of third-party organizations at the expense of those harmed.

A complete copy of the most recent HUD production that contained these emails can be viewed here and here.

[1] HUD-Approved Intermediaries provide supportive housing counseling services through a network of affiliates or branches. Services include training, pass-through funding, technical assistance, and overseeing their networks to ensure services are satisfactory. In contrast, HUD-Approved Housing Counseling Agencies directly provide advice on buying a home, renting, defaults, foreclosures, and credit issues.

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

 

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11/9/2018

FBI Records Show Former FBI Director James Comey’s Use of Personal Email

Cause of Action Institute has acquired former FBI Director James Comey’s work-related emails from his personal Gmail account. Garnered from the FBI through the first of rolling document productions in an ongoing Freedom of Information Act (FOIA) lawsuit, the email records start to shed light on the extent of Comey’s use of private email to conduct agency business.

The problems associated with using personal email for government work are obvious but those caught in the act often try to act like they had no idea they were doing anything wrong or justify their behavior as merely incidental. Cause of Action Institute (CoA Institute) has been at the forefront of shining a light on this behavior,  and first explored the issues raised by government employees using private email for official business in a 2012 journal article: “Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?”  In the six years since that article was published, CoA Institute’s investigations have demonstrated how the use of personal email or messaging apps for government business hinders transparency and accountability.

The ability to shroud government action in secrecy can also harm the economic rights of ordinary Americans. For example, small-scale family fishermen were harmed when the National Oceanic and Atmospheric Administration failed to search private accounts for email records related to onerous regulations that would devastate their business. Government overreach cannot be fought effectively if the process and enforcement are kept in the dark. That’s why CoA Institute is committed to holding the government accountable to transparency laws and has brought cases to uncover the private email use of officials such as former Secretary of State Colin Powell, former Secretary of State Hillary Clinton, and now, former FBI Director James Comey.

On June 14, 2018, after the Department of Justice (DOJ) Inspector General (IG) revealed “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business.” CoA Institute submitted FOIA requests to the Federal Bureau of Investigation (FBI) and the IG to obtain copies of that email correspondence.  After the agencies failed to respond to the requests in a timely fashion, CoA Institute filed a lawsuit on August 1, 2018 to bring transparency to Comey’s use of Gmail, which the IG had concluded was “inconsistent with the DOJ Policy Statement.”

The FBI provided its first rolling production late last week. You can read and download the documents here.

The FBI reviewed 526 pages, released only 156 pages, and withheld 370 pages in full. Notably, the FBI withheld seven emails under the FOIA’s law enforcement exemption, which applies only where the government can show that (1) a law enforcement proceeding is pending or prospective, and (2) release of information about that proceeding could reasonably be expected to cause some articulable harm. These withholdings are particularly troubling given that Director Comey told the IG he only used personal email “to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.” And according to news reports, Comey “stressed that his personal email was never used for classified or sensitive work.”

The e-mails records released to CoA Institute show that Director Comey was aware that his use of personal email for government business would be seen as “embarrassing” to anyone who wasn’t aware of it previously.

The records also show that Director Comey used his Gmail to discuss the FBI’s investigation of Hillary Clinton’s email server. In other words, Comey was using a non-governmental email account while he was investigating Secretary Clinton for the same unlawful behavior.
In this case, as with nearly every instance, when public officials conduct business through unofficial channels, they are denying the public’s right to hold officials accountable through the most fundamentally sound principle of a healthy democracy: Transparency. Cause of Action Institute remains committed to holding government officials at all levels accountable and will continue to report on this case as the DOJ releases the more than 700 pages of Comey related emails that remain outstanding.

The full production can be found here.



FBI Production re Comey Gmails 10.31.18 (Text)

Other CoA Institute investigations of the use of personal email or messaging accounts for government business:

Documents Obtained by Cause of Action Show that Officials Worried About Hillary’s Emails But Took No Action (June 4, 2015)

Off-Grid Government: This Administration’s Pattern of Using Personal Email Accounts (December 22, 2015)

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment (February 28, 2018)

CoA Institute Files Reply in Support of Motion to Order Enforcement Action in Colin Powell Email Case (May 4, 2018)

 

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

____________________________________________________________

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

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