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07/26/2017

The GSA Has No Records on its New Policy for Congressional Oversight Requests

Last month, Cause of Action Institute (“CoA Institute”) detailed how it intended to investigate rumors of the Trump Administration directing federal agencies to ignore “oversight requests” from Democratic legislators.  Reports of the “new policy” sent the transparency community into a frenzy, particularly as they came on the heels of an opinion letter from the Department of Justice’s Office of Legal Counsel that corroborated much of the scuttlebutt. As part of its investigation, CoA Institute sent a FOIA request to the General Services Administration (“GSA”) seeking access to various records concerning the agency’s policies or procedures for handling congressional oversight requests, congressional requests for information, and congressional requests from individual Members for the disclosure of agency documents.  We also requested copies of records evidencing any White House directives on pre-production consultation or review of requests from Congress or under the FOIA.

Last week, the GSA provided its final response.  The response leaves much to be desired, as the agency released only two documents.  The first is a February 20, 2015 order regarding congressional and intergovernmental inquiries; the second is a previously-secret April 15, 2009 White House memo that CoA Institute first made publicly known in June 2013.  The GSA did not find (or at least did not produce) anything pertaining to the Trump Administration’s new policy to respond only to Republican congressional leadership.

The General Services Administration’s failure to locate relevant records is curious because its acting administrator, Timothy Horne, previously testified before Congress that “the [Trump] Administration has instituted a new policy that matters of oversight need to be requested by the Committee chair.”  Admittedly, he clarified that the White House itself hadn’t distributed a finalized, written version of its policy, but it stands to reason that the GSA would still have some record of its effort to formalize whatever oral directions were issued by the White House.  Similarly, to the extent the GSA may now be processing any congressional disclosure requests under the FOIA, the agency should have records concerning those policies and procedures.  None were given to CoA Institute.

We have filed an appeal challenging the adequacy of the General Services Administration’s search efforts.  And we are still waiting for the Office of Personnel Management to respond to a similar request.  In the meantime, CoA Institute remains committed to holding the Executive Branch accountable to one of the most important principles of good government: transparency.

Ryan Mulvey is Counsel at Cause of Action Institute.

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07/26/2017

Occupational Licensing Laws are Holding Americans Back

Occupational licensing laws are intended to protect consumers from unsafe services provided by unqualified individuals. Doctors and pilots, for instance, are licensed to guarantee that no one unqualified operates on someone or flies a plane. But recently, the practice of requiring a license has moved beyond consumer protection in highly skilled, high risk occupations, and has morphed into a barrier to entry, protecting established companies from outside competition. As states move to require licenses for more occupations, the consumer is not protected, but harmed by fewer choices, higher prices, and a shift away from customer focus.

A system that guarantees inefficiency

A license requirement disincentivizes individuals from pursuing careers in affected fields. That’s because obtaining a license requires time and money, which limits the number of individuals who would otherwise enter the marketplace. Faced with diminished competition, the negative impact on the consumer is amplified because existing businesses then have less incentive to provide a better service.

Growing trend

In the 1950s, occupational licensing laws only affected five percent of the American workforce. By 2015, nearly one in three workers now need a license to work. Far removed from simply guaranteeing safety, licensing has encroached into non-professional occupations that do not require extensive training.

These laws include licensing requirements for: hair braiding, locksmithing, packaging, auctioneering, being a florist, selling caskets, interior designing, teeth whitening, fortune telling and being a shampooer. Most consumers would unlikely be alarmed to find out their hair was braided by a renegade licenseless hair braider, or that their fortune teller failed to predict they needed a license to practice.

Costly and unnecessary

Not only do many occupational licenses seem unnecessary, but the requirements are often excessive and odd. The publication Rare reported that in Idaho, regulations make becoming a barber more difficult than a bounty hunter. In Washington, D.C., shoe-shiners are required to purchase a $337 permit. Becoming an interior decorator in Florida takes about six years. Sign language interpreter? Several states require a license for that too.

Per the Mercatus Center, preschool teachers, on average, must receive 1,728 days of training and pay more than $100 in fees to get their teaching license. Athletic trainers must pay, on average, $400 in fees. Other occupations that require more than $100 in fees include: Earth driller, cosmetologist, barber, skin care specialist and veterinary technologist. These licenses also require more than 100 days of training or experience.  These examples raise the question: who exactly is supporting this bureaucratic red tape?

Keeping people out of jobs

Unsurprisingly, the groups that lobby for the regulations tend to be the same groups that benefit from the lack of competition. The National Review reported that individuals with a certificate or license make, on average, $200 more per week than someone without one. Furthermore, the unemployment rate for individuals without a certificate or license is much higher than the unemployment rate for someone with one. For individuals who graduated from high school, but did not attend college, the unemployment rate for someone without a certificate or license is almost double that of someone who has one (5.9 and 3.1 percent, respectively). For individuals who did not graduate high school and have no certificate or license, unemployment is 8.2 percent, while for individuals with a certificate or license, it is 5.1 percent. These legal requirements are holding down the poor while artificially keeping unemployment higher than it otherwise would be.

The heavy licensing burden is an ever-growing problem. It is holding back Americans who are already in tough situations. Unnecessary licensing laws should be scaled back. If it turns out society erupts into chaos with unlicensed florists and fortune tellers, then we can re-examine the issue.

Tyler Arnold is a communications associate at Cause of Action Institute

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07/24/2017

GreenTech Automotive, Terry McAuliffe, and crony capitalism

SMOKE AND MIRROS

GreenTech Automotive, Terry McAuliffe, and crony capitalism

By John J. Vecchione and Ryan Mulvey | Jul 22, 2017

A politically connected “green energy” vehicle company that never delivered on its promises is finally being taken to task. A state auditor in Mississippi is demanding GreenTech Automotive repay its public loans after taxpayers were taken for a proverbial ride — though certainly not in one of the company’s elusive vehicles.

Read the full column at Richmond Times-Dispatch

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07/21/2017

Following CoAI’s Letter, DOJ Rejects Unlawful Slush-Fund Settlement Project in Harley-Davidson Enforcement Action

On July 20, 2017, the Department of Justice (“DOJ”) filed a substitute consent decree in the Environmental Protection Agency’s Clean Air Act enforcement action against Harley-Davidson, Inc. removing a requirement that Harley-Davidson fund a so-called Emissions Mitigation Project (“Project”).[1]  About three weeks earlier, on June 1, 2017, Cause of Action Institute (“CoA Institute”) submitted a Freedom of Information Act request to EPA requesting all documents and records related to the selection of the Project, and the American Lung Association  as the Project’s implementing entity.[2]  In conjunction with that request, we also sent a letter to EPA Administrator Pruitt asking him to reconsider the unlawful mitigation Project, because it lacked a sufficient nexus to the underlying violation.[3]  As we stated, the Project appeared to be a continuation of Obama-era practices that used consent decrees to funnel funds to favored non-governmental organizations.[4]

Fortunately, Attorney General Jeff Sessions issued a policy directing U.S. attorneys to end this practice on June 5, 2017.[5]  DOJ attorneys cite Sessions’ memorandum as a reason for rejecting the Emissions Mitigation Project and filing the new consent decree, because the original Harley-Davidson agreement failed to connect the alleged violation—excess gas and nitrogen oxides emissions nationally—to the Project—replacing wood-burning appliances in the northeast.[6]

CoA Institute applauds DOJ’s revised consent decree, which is consistent with our assessment that the Emissions Mitigation Project violates the “sufficient nexus” requirement necessary for ensuring that agencies do not abuse their enforcement power at the expense of taxpayers.

Travis Millsaps is Counsel at Cause of Action Institute

[1] Consent Decree, United States v. Harley-Davidson, Inc., No. 16-cv-01687 (D.D.C. filed July 20, 2017), ECF No. 6.

[2] FOIA Request EPA-HQ-2017-007905, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2tk7YY4.

[3] Letter from Travis G. Millsaps, Counsel, Cause of Action Inst., to Hon. Scott Pruitt, Adm’r, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2uesJGh.

[4] Blog Post, Cause of Action Inst., Cause of Action Institute Applauds AG Sessions’ Termination of Settlement Fund Payouts to Third-Party Groups (June 7, 2017), https://causeofaction.org/cause-action-institute-applauds-ag-sessions-termination-settlement-fund-payouts-third-party-groups/.

[5] Memorandum from Jeff Sessions, Attorney Gen., U.S. Dep’t of Justice, to U.S. Attorneys et al. (June 5, 2017), available at https://www.justice.gov/opa/press-release/file/971826/download.

[6] Consent Decree, supra note 1, at 2–3; Memorandum from Jeff Sessions, supra note 5; see also Letter from Travis Millsaps to Scott Pruitt, supra note 3, at 2–3.

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07/19/2017

CoAI Submits Statement for the Record to Congress: Hearing on “Exploring the Successes and Challenges of the Magnuson-Stevens Act”

Cause of Action Institute submitted a Statement for the Record today to the House Committee on Natural Resources, Subcommittee on Water, Power and Oceans.  The subcommittee is holding an important oversight hearing on domestic fisheries management and opportunities for reform of the Magnuson-Stevens Act. The statement highlights concerns with the federal government’s current efforts to expand industry-funded at-sea monitoring throughout the Atlantic region.  It also follows CoA Institute’s filing of a petition for writ of certiorari in Goethel v. Department of Commerce, which specifically concerns the legality of the Northeast multispecies sector at-sea monitoring industry funding requirement.  Learn more about David Goethel’s fight here.

Ryan Mulvey is Counsel at Cause of Action Institute.

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07/18/2017

Watchdog Exposes IRS Record Management Failures

The Treasury Inspector General for Tax Administration (“TIGTA”) released an important report yesterday that detailed the Internal Revenue Service’s (“IRS”) inconsistent and inadequate records retention policies over recent years. The audit had been requested in March 2016 by the House Committee on Ways and Means.  TIGTA, the IRS’s watchdog, concluded that the agency had failed to “comply with certain Federal requirements that agencies must ensure that all records are retrievable and usable for as long as needed.”  In other words, TIGTA took the IRS to task for having ignored the requirements of the Federal Records Act (“FRA”) and the Freedom of Information Act (“FOIA”).

Consider some highlights from the report:

  • “The IRS’s current e-mail system and record retention policies do not ensure that e-mail records are saved and can be searched[.]”
  • “[R]epeated changes in electronic media storage policies, combined with a reliance on employees to maintain records on computer hard drives, has resulted in cases in which Federal records were lost or unintentionally destroyed.”
  • “Interim actions taken by the IRS while developing an upgraded e-mail solution do not prevent loss of e-mail records.”
  • The IRS’s “interim e-mail archiving policy for executives” was “not implemented effectively because some executives”—including four members of the Senior Executive Team—did not properly configure their e-mail accounts . . . and the IRS did not have an authoritative list of all executives required to comply with the interim policy.”
  • “Policies requiring the IRS to document search efforts [under the FOIA] were not followed for some cases.”
  • “The IRS does not have a consistent policy to search for records from separated employees.”

TIGTA’s report offers countless examples of how not to comply with federal law.  Yet none of the details are terribly unexpected.  Ever since the Lois Lerner Tea Party targeting scandal broke in 2013, the IRS has been grilled for its shoddy records management.  Cause of Action Institute’s oversight of the agency revealed, for example, that the IRS used to delete BlackBerry messages after only fourteen (14) days because of “routine system housekeeping” and “spacing constraints.” More egregiously, the IRS intentionally failed to capture, preserve, or retain instant messages created on its Microsoft Office Communications Server (“OCS”) platform because of a contractual agreement with the National Treasury Employees Union.  That “memorandum of understanding” sought to “enhance employee work environments and allow employees to more effectively and efficiently collaborate with their colleagues.”  In other words, the IRS had no systemic means of assuring that employees’ communications on OCS were not records subject to the FRA or the FOIA and, if they were, that they were appropriately retained and retrievable.  Our lawsuit against the IRS helped push the agency to implement a new records management system for text and instant messages in line with the requirements of the law.  Unfortunately, as the TIGTA report demonstrates, the agency still falls short with respect to its management of email records.

It is also unsurprising—but still deeply troubling—that TIGTA concluded the IRS “did not consistently ensure that potentially responsive records” were identified, searched, and produced in response to FOIA requests. CoA Institute frequently litigates with the IRS over requests that go unanswered for months.  The fight usually boils down to a disagreement over the adequacy of the agency’s search.  Regrettably, courts give agencies a great deal of deference in justifying the reasonableness of their searches, even when a declarant fails to provide sufficiently specific information about how a search was conducted.  In some of our cases, IRS FOIA officers have merely asked senior employees whether potentially responsive records exist and then called it a day.  That’s unacceptable.  The onus is now on the IRS to make improvements, and it is for Congress and taxpayers to ensure those improvements are made.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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07/18/2017

CoAI Sues for Records of House Committee Chair’s Urging FOIA Obstruction

Records could shed light on DOJ’s communications with Chairman Hensarling, reveal guidance to agencies

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the Department of Justice (“DOJ”) for records that could reveal whether the agency’s Office of Information Policy or Office of Legislative Affairs was involved with a controversial, and legally dubious, directive from the House Committee on Financial Services concerning the processing of records under the Freedom of Information Act (“FOIA”).  The suit also seeks records of related communications between DOJ and twelve federal agencies under the Committee’s jurisdiction.

In May 2017, CoA Institute filed a FOIA request with the DOJ in response to reports that Rep. Jeb Hensarling (R-Texas), Chairman of the House Committee on Financial Services, directed the Department of the Treasury and eleven other agencies to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

CoA Institute Counsel Ryan Mulvey: “Through its Office of Information Policy, the DOJ is responsible for overseeing government-wide compliance with the FOIA.  The DOJ likely would have been consulted by agencies that received Chairman Hensarling’s letter, as well as by the Committee itself when it was considering the directive.  The public deserves to know how and to what extent DOJ FOIA experts have been involved in formulating and implementing this new anti-transparency policy.’”

Because Congress is not subject to the FOIA, a request for records that have been exchanged with the legislative branch can present unique difficulties for an agency.  The law and well-established court precedents require that Congress manifest a clear intent to maintain control over specific records to keep them out of reach of the FOIA.  Chairman Hensarling’s directive is ineffective in this respect.  The mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  Any deviation from the acknowledged standard for defining a “congressional record” would frustrate the FOIA and impede transparent government.

CoA Institute’s complaint is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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