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10/12/2018

How a small 242-year-old Spanish fort is part of an ongoing effort to make the government more transparent and accountable

Presidio Trust Adopts CoA Institute’s Recommendations with Final FOIA Regulations

In 1776, more than 2,800 miles away from the battles of the American Revolution, a Spanish military fort was established on the tip of the San Francisco Peninsula. Today, this small slice of land is a federal park managed by an obscure federal agency called the Presidio Trust. Two hundred and forty-two years later, this former Spanish military fort is part of Cause of Action Institute’s ongoing effort to make all levels of the federal government more transparent and modernize the federal government’s FOIA process.

Earlier this week, the Presidio Trust finalized a rule implementing new Freedom of Information Act regulations and incorporating important revisions proposed by Cause of Action Institute in March 2018.

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 Most importantly, we urged the agency to remove outdated “organized and operated” language from the definition of a “representative of the news media.”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

For example, CoA Institute sued the Federal Trade Commission, and took its case all the way to the D.C. Circuit, to get the agency to acknowledge that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction. In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases. CoA Institute cited this case to the Presidio Trust, and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.

The statutorily superseded “organized and operated” standard originates with FOIA fee guidelines published by the White House Office of Management and Budget (OMB) in 1987.  Portions of the OMB guidance are no longer authoritative because they conflict with the statutory text, and judicial authorities, including Cause of Action v. Federal Trade Commission.

In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines. CoA Institute filed a petition for rulemaking on the issue and is litigating the matter in federal court. Earlier this summer, OMB finally agreed to update its agency regulations, and amend its definition of a news media request, but the agency continues to refuse to update the 30-year-old fee guidelines.

Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on 24 separate rulemakings.  Of the 13 that have been finalized, CoA Institute has succeeded in convincing nine agencies, including the Presidio Trust, to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media.”

The remaining agencies that have accepted CoA Institute’s recommendations include the following:

Some agencies, including the National Credit Union Administration and the Federal Reserve, have deferred their consideration of CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding FOIA fee issues.

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

See also:

Cause of Action Institute’s March 2018 public comment submitted to the Presidio Trust

Ryan P. Mulvey is Counsel at Cause of Action Institute

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10/8/2018

DOJ Releases First Set of Documents Showing High-Level Employee Using Private Email

“[L]ack of transparency is a huge political advantage. And basically, call it the ‘stupidity of the American voter’ or whatever, but basically that was really, really critical to getting the thing to pass.” – Jonathan Gruber, architect of Obamacare.

A fundamental pillar of an open and free society is a transparent and accountable government and the reason why Cause of Action Institute (“CoA Institute”) is investigating the use of non-governmental email for official government business by current and former high-level employees at the Department of Justice.

On March 1, 2017, Politico’s Edward-Isaac Dovere tweeted Sarah Isgur Flores, the new spokesperson at the U.S. Department of Justice, used her personal Gmail account to send out an official statement.

While public officials, by accident or necesity, use personal devices from time-to-time, the Obama Administration was notorious for using personal email and secretive government email accounts to avoid disclosure.

CoA Institute filed a Freedom of Information Act (“FOIA”) request the next day seeking the statement allegedly sent from Flores’ Gmail account along with all emails sent or received by Flores from a non-governmental email account since January 20, 2017, when the Trump Administration took office.

After a year and a half of waiting for a response, we filed suit on August 1, 2018 to obtain the documents. On September 27, 2018, the DOJ Office of Information Policy (“OIP”) provided a final response on the Flores request and claimed that the records were located in an official DOJ email account:

As is evident from the enclosed records, Ms. Flores forwarded emails sent to her personal account to her official Department of Justice email account, including through an automatic forward. As such, all of these emails were located pursuant to our search of Ms. Flores’ official Department of Justice email account.

OIP’s production included 112 pages of emails showing Flores either forwarding or carbon copying her official DOJ email in late February through the end of March 2017. Yet despite the assurance from OIP that they have provided all the emails sent from a non-governmental account, OIP failed to include the original March 1, 2017 press statement that prompted CoA Institute’s FOIA request. It’s unclear whether  Flores failed to forward it to her official account, or if OIP failed to identify and include it in its document production.

The Flores records are only the first production owed to CoA Institute from DOJ in this litigation. The other records at issue concern the use of non-governmental email accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki. In a September 20, 2018 Joint Status Report, the FBI’s search for records uncovered more then “1,200 potentially responsive records”:

The FBI has completed its search and has located approximately 1,200 potentially responsive records, some of which may require consulting subject matter experts or referrals to other agencies. It anticipates a four-month processing timeline with the first release on October 31, 2018, and additional releases following on a monthly basis.

The 1,200 potentially responsive records is significant because the June 2018 Department of Justice Office of Inspector General (“IG”) report found “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business,” but only cited five examples. Further, Rybicki claimed that the use of non-governmental accounts was “rare”, and Comey stated that it was only used for documents that would be “disseminated broadly.”  From the DOJ IG report:

Comey stated that he did not use his personal email or laptop for classified or sensitive information, such as grand jury information. Comey told us that he only used his personal email and laptop “when I needed 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.”

 

We also asked Rybicki about Comey’s use of a personal email account. In response to the OIG’s questions and in consultation with Comey, Rybicki sent the OIG an email on April 20, 2017, that stated: In rare circumstances during his tenure, Director Comey sends unclassified emails from his official FBI.gov email account address to [his Gmail account]. (emphasis added)

The information we have thus far casts doubt on Comey and Rybicki’s statements to the IG about the frequency and nature of their use of non-governmental email accounts. As James Comey recently wrote, “little lies point to bigger lies.”  Stay tuned.

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



Final Response (9 27 18) (Text)

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10/1/2018

Cause of Action Institute Clips – 10/1/2018

Good morning,

Welcome to Cause of Action Institute’s morning clips and updates – you can also read and share the clips by clicking here. The  U.S. Supreme Court kicks off its October 2018 term today. I’ve included a quick summary on two cases before the Court this week that Cause of Action Institute is following closely.

Have a great Monday and enjoy!

_____________________________

Matt Frendewey
Cause of Action Institute
O (202) 499-4231

 

Weyerhaeuser Company v. U.S. Fish and Wildlife Service

Today, the Court will hear oral arguments in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. This case involves the federal government designating 1,500 acres of private land as “critical habitat” for the endangered dusky gopher frog.  The question that we discuss in our amicus brief is whether the agency’s refusal to consider the economic impact of its decision is subject to judicial review. We argue that the court of appeals below ignored the strong presumption of judicial review and the Supreme Court should reverse.
You can read more about the case in our Aug. 22 blog, as well as our amicus curiae brief.

 

Gundy v. United States

Another case we’re following closely is Gundy v. United States. This case is scheduled to be heard tomorrow and raises a question of whether the Executive Branch can exercise legislative authority by defining the scope of federal criminal liability even though neither the Constitution nor Congress has given the Executive Branch the power. We joined the Cato Institute and filed an amicus brief arguing that the founders specifically intended for the powers of making laws and enforcing laws to be separated, quoting John Adams, “[t]he executive shall never exercise the legislative and judicial powers . . . to the end it may be a government of laws and not of men.” This is especially true in the area of criminal laws, where we must ensure that Congress and not the Executive determines liability.
You can read the full amicus curiae brie here.

 

npr – Supreme Court Term Begins In The Shadow Of Kavanaugh Confirmation Battle – By Bobby Allyn

As the Senate remains in a pitched battle over the nomination of Brett Kavanaugh, the Supreme Court on Monday will begin its new term with far less fanfare. … The very first case the Court will take up concerns a frog species that is threatened with extinction: the dusky gopher frog. Weyerhaeuser., a large timber company, is challenging the federal government’s classification of Louisiana timberland as a “critical habitat” for the dusky gophers. There are only 75 dusky gopher frogs left in the wild and they are protected by the Endangered Species Act.

 

New York Times – A Quiet Docket May Be Just the Right Medicine for the Supreme Court – By Adam Liptak

In the shadow of a titanic confirmation fight, the Supreme Court will return to the bench on Monday with a docket that offers an opportunity to lower the temperature.

 

The Hill — Tariff-exemption process raises serious cronyism concerns – By John Vecchione

The tit-for-tat trade war involving tariffs continues to grow between the U.S. and other countries, and as night follows day, where there are tariffs, there is the corrupt prize of tariff exemptions. A new, domestic trade war has emerged within the Commerce Department in an effort to secure and block tariff exemptions.

 

Politico –Liberals Don’t Know Much About Conservative History – By GEOFFREY KABASERVICE

The growing tendency of late for liberals and conservatives to regard each other as not just opponents, but enemies, has been one of the most alarming in an alarming era. At the root of this fear and loathing is mutual incomprehension: Liberals simply don’t understand conservatives, and vice versa. In years past, the historical profession has done little to improve matters. Liberal historians typically treated conservatives and their ideas with disdain, when they deigned to notice them at all.

 

arstechnica –  FBI: We can’t listen to Facebook Messenger voice calls. Judge: Tough luck – By Cyrus Farivar

A federal judge in Fresno, California recently denied prosecutors’ request to force Facebook to wiretap voice calls by suspected gang members conducted over Messenger. According to a Friday report by Reuters, despite already having substantive traditional wiretaps and intercepting Messenger texts between alleged MS-13 gangsters, the government wanted further access. “Currently, there is no practical method available by which law enforcement can monitor these calls,” FBI Special Agent Ryan Yetter wrote in a nearly-100-page-long affidavit submitted to the court on August 30, 2018. The three participants in those calls are now in jail, according to Reuters.

 

ftc.gov – Student Debt Relief Operators Agree to Settle FTC Charges

The operators of a student loan debt relief scam have agreed to settle Federal Trade Commission charges that they bilked millions from consumers by falsely claiming to enroll consumers in loan forgiveness programs, for which they charged up to $1,000 in illegal upfront fees. The five settlements are part of a coordinated federal-state law enforcement initiative targeting deceptive student loan debt relief scams announced by the FTC in October 2017, called Operation Game of Loans. The settlements are with the following individual defendants and their associated companies:

 

Politico – U.S. reaches trade deal with Canada and Mexico, providing Trump a crucial win – By ADAM BEHSUDI, ALEXANDER PANETTA and DOUG PALMER

Trade ministers from the U.S., Mexico and Canada have reached a deal to revamp the North American Free Trade Agreement, the Trump administration announced late Sunday night. The new pact, which is being called the U.S.-Mexico-Canada Agreement, is a major step toward completing one of Trump’s signature campaign promises and gives the president a concrete policy win to tout on the campaign trail this fall. It also sets the stage for what is sure to be a high-stakes fight to get the agreement passed by Congress before it can become law.

 

thehill – Supreme Court starts new term shorthanded – BY LYDIA WHEELER

The Supreme Court starts its new term on Monday and it will be short-handed on the bench — one of several challenges the justices are facing along with cases dealing with limits on the death penalty, the separation of church and state and employment discrimination. Sexual assault allegations against Brett Kavanaugh, President Trump’s nominee to succeed former Justice Anthony Kennedy, have already delayed his Senate confirmation and could ultimately sink his nomination. But with or without him the court will be back in session.

 

foxnews – California’s Jerry Brown signs tough net-neutrality bill, prompting Justice Department lawsuit  

California Gov. Jerry Brown signed the nation’s toughest net neutrality measure Sunday, requiring internet providers to maintain a level playing field online. The move prompted an immediate lawsuit by the Trump administration. Advocates of net neutrality hope the new law in the home of the global technology industry will have national implications by pushing Congress to enact national net neutrality rules or encouraging other states to follow suit.

 

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09/20/2018

Dennis Cupo Officially Dismissed from FTC v. Vylah Tec LLC

WASHINGTON D.C. In a major victory, Cause of Action Institute (CoA Institute) today, celebrated the decision by a federal district court to dismiss, with prejudice, all claims against Dennis Cupo in an ongoing case, FTC v. Vylah Tec LLC. The Federal Trade Commission moved to dismiss Mr. Cupo from the case after the U.S. District Court Middle District of Florida ruled the FTC had failed to produce any evidence linking him to any alleged wrongdoing and denied the FTC’s motion to re-freeze his assets.

“We applaud today’s decision to dismiss Mr. Dennis Cupo from this case so he can rebuild his life after being unfairly targeted by the government,” said John Vecchione, president and CEO of Cause of Action Institute. “While we celebrate today’s dismissal, the FTC is still casting overbroad nets to freeze the assets of Americans and illustrates the urgent need to reform the agency from the top down.”

After obtaining a secret court order, Vylah Tec, a family-run tech support company owned by Dennis’ brother Robert Cupo, was targeted by the Federal Trade Commission as part of “Operation Tech Trap” because it bore a superficial resemblance to other companies with illegitimate practices. Failing to take into account Vylah Tec’s substantial well-regarded services, the Government sought to shut the company down, depriving thousands of customers of pre-paid technical support services. The FTC aggravated that overreach by implicating Dennis Cupo, for whom the FTC failed to establish any meaningful relationship to the business. Despite this, it took a year of litigation and a court order to motivate the Federal Trade Commission to finally dismiss an innocent bystander from the case.

The case highlights much-needed reform in the FTC due to its aggressive, overbearing, and unfair enforcement process. Cause of Action Institute recently filed more than 15 pages of recommended changes that can read here.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

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09/14/2018

Cause of Action files lawsuit against DOJ relating to Lois Lerner-IRS data scandal

WASHINGTON, D.C. – Sept. 14, 2018 – Cause of Action Institute (CoA Institute) has filed a lawsuit against the Department of Justice (DOJ) seeking records relating to the infamous Lois Lerner-IRS scandal. In 2010, the Internal Revenue Service (IRS) improperly released 21 CDs of confidential taxpayer information to the DOJ. This illegal release of confidential tax information resulted in several internal investigations, but the government has refused to release any of its internal reports or communications relating to the scandal.

“Taxpayers deserve to a have a full and clear picture of what took place nearly a decade ago when the U.S. Department of Justice and Internal Revenue Service were partnering in an effort to target nonprofits,” said Ryan Mulvey, counsel at Cause of Action Institute. “We have repeatedly requested the release of the internal investigation reports and the records revealing when and what the DOJ shared with Congress about this improper release. Taxpayers deserve a clear picture of who knew what and what really took place in the targeting of nonprofits by the DOJ and the IRS.”

In its investigation of this matter, CoA Institute has engaged with various DOJ components and Treasury Inspector General for Tax Administration (TIGTA), filed multiple unanswered Freedom of Information Act (FOIA) requests, and sought records regarding the potentially illegal access to and disclosure of this confidential taxpayer information.

Background:

  • In 2013, the public learned that the IRS Exempt Organizations Section, led by then-Director Lois Lerner, had been involved in unfairly targeting nonprofits, allegedly for political purposes.
  • Before then, the IRS and DOJ met on several occasions to discuss targeted prosecutorial efforts.
  • At one of those meetings, the IRS improperly provided the DOJ with 21 CDs containing statutorily protected confidential taxpayer information. That information could have been disclosed to the DOJ pursuant to statutory exemptions, none of which applied to this disclosure.
  • DOJ returned to the IRS, the CDs contained 1.1 million pages of confidential information regarding tax return information of various tax-exempt groups.
  • CoA Institute wrote to both the TIGTA and the DOJ Office of Inspector General (DOJ OIG) to request investigations into this illegal access to and disclosure of confidential taxpayer information. TIGTA and DOJ OIG both opened investigations of this matter.
  • TIGTA refused to release its findings.
  • DOJ OIG, in a letter to CoA Institute, explained that, “[b]ased upon [its] initial inquiries, it appears that some protected taxpayer information was included on compact disks (CDs) that the IRS provided to the Department in response to a Department request.” Once “the Department learned of this, it returned the CDs to the IRS and informed Congress about it.” Citing “the absence of available information,” DOJ-OIG “determined that [CoA Institute’s request] does not warrant further investigation.”
  • In October 2016, CoA Institute sent a FOIA request to the DOJ-OIG seeking records of its communication with Congress relating to this unauthorized disclosure.
  • In October 2017, CoA Institute sent two additional FOIA requests to various DOJ components to ensure that CoA Institute received all relevant records pertaining to the IRS’s unlawful disclosure, particularly regarding the DOJ’s communications with Congress.
  • DOJ has refused to respond to any of the CoA Institute FOIA requests for this matter.
  • On Thursday, Sept. 13, 2018 Cause of Action Institute filed the following complaint against the U.S. Department of Justice, Cause of Action Inst. v. U.S. Dep’t of Justice, 18-2126 (D.D.C.)

Full complaint can be viewed below.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

Media Contact:

Matt Frendewey

matt.frendewey@causeofaction.org

202-699-2018

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09/14/2018

Federal judge rejects DOJ’s use of attorney-client, deliberative process privileges to hide communications with the White House Counsel from public disclosure

Judge James Boasberg of the U.S. District Court for the District of Columbia yesterday granted in part Cause of Action Institute’s (“CoA Institute’s) motion for summary judgment in a Freedom of Information Act (“FOIA”) lawsuit against the Department of Justice (“DOJ”). Judge Boasberg vigorously rejected DOJ’s attempt to withhold records of communications with the White House under the attorney-client and deliberative process privileges.  CoA Institute filed its lawsuit in July 2017, after DOJ refused to produce records that would have revealed whether it was involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services.  The underlying request at issue, which CoA Institute submitted in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, had directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with his Committee as “congressional records” not subject to the FOIA.

Judge Boasberg’s most damning holding concerned DOJ’s misuse of Exemption 5 to redact a line from a White House email and to withhold in full an attachment—presumably the letter from Chairman Hensarling—received by several Executive Branch agencies.  As the Court explained:

Indeed, any reasonable individual would reach the same conclusion as the Court after cursorily examining the record at issue.

The sole basis of DOJ’s defense was the declaration a senior agency attorney, who claimed that the White House email reflected a “routine” sort of “consultative exchange” in which Office of Information Policy Director Melanie Pustay was asked for “advice.”  But the Court saw through this self-serving statement and explained that DOJ had failed to meet its burden in proving that the specific record at issue reflected the provision of legal services.  To rule otherwise would tend to turn any correspondence with a government attorney into privileged material.

The Court also failed to see how the withheld material contained any confidential information.  For example, the attachment to the White House email—ostensibly, a copy of the Hensarling letter—was merely one of many substantively identical letters that DOJ admitted were received across the Administration.  There was simply no agency-specific confidential information at issue.

Judge Boasberg further rejected DOJ’s use of the deliberative process to withhold the same White House communications.  Despite the government’s arguments during briefing, after reviewing the records itself, the Court determined that they contained nothing that could be construed as deliberative.

Although the court granted in part CoA Institute’s motion, it also sided with the government over the withholding of eleven pages of records exchanged between DOJ and an unidentified agency.  After reviewing those records, the Court determined that they did, in fact, reflect the agency’s decision-making processes and revealed the solicitation and provision of confidential legal advice.  Moreover, there were no reasonably segregable portions of the records that could be released to CoA Institute. Finally, the court did not resolve the parties’ dispute over the “foreseeable harm” standard that Congress introduced in the FOIA Improvement Act of 2016..

* * *

The Court has ordered DOJ to release unredacted versions of the White House communications. Once these records have been released, we will provide another update addressing their contents.

Judge Boasberg’s opinion is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

 

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09/13/2018

CoA Institute Defends U.S. Citizens’ Privilege and Immunity From Excessive Fines in Latest Amicus Brief

On Tuesday, September 11, 2018, Cause of Action Institute (“CoA Institute”) filed an amicus curiae brief in the Supreme Court case Tyson Timbs v. State of Indiana in support of the Petitioners, who asked the Court to determine whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States through the Fourteenth Amendment. The matter arises from a civil action against both Tyson Timbs and his vehicle, which the State sought to forfeit. The state trial court and intermediate appellate court ruled that forfeiture of the vehicle (worth about $40,000) would be “excessive” and “grossly disproportional to the gravity of”[i] crimes to which Timbs pleaded guilty in a separate case (the maximum fine for which was $10,000, and Timbs was actually fined much less). But the Indiana Supreme Court reversed because the U.S. Supreme Court has not yet held that the Excessive Fines Clause applies to the States.[ii] CoA Institute argues that the Indiana Supreme Court should be reversed because, as a citizen of the United States, Timbs is privileged and immune under the Fourteenth Amendment from the grossly disproportionate fine that Indiana seeks to impose through forfeiture of his vehicle.

Our brief calls attention to the fact that the Supreme Court has never ruled on whether the Excessive Fines Clause is applicable against the States. We argue that the Excessive Fines Clause is, in fact, enforceable against Indiana through the Privileges or Immunities Clause of the Fourteenth Amendment. That clause provides that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” CoA Institute relies on recent jurisprudence, like Justice Thomas’s concurrence in McDonald v. City of Chicago, which notes that on its face, Section 1 of the Fourteenth Amendment grants U.S. citizens a “certain collection of rights – i.e., privileges or immunities – attributable to [their] status” as citizens of the country as well as an individual state.[iii]

Additionally, our brief demonstrates that Excessive Fines Clause includes the ancient principle of salvo contenemento, which prohibits fines that would deny any defendant the basic ability to earn a living. Forfeiture of Timbs’ vehicle in this case would violate this ancient principle.

Our amicus brief is available here

Libby Rudolf is a Research Assistant at Cause of Action Institute.

[i] State v. Timbs, 84 N.E.3d 1179, 1181 (Ind. 2017) (quoting trial court).

[ii] Id.

[iii] McDonald v. City of Chicago, 561 U.S. 742, 808 (2010) (Thomas, J., concurring in part and concurring in judgment).

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