USTR Records Show Ambassador Lighthizer Used Personal Email for Government Business

Records obtained by Cause of Action Institute (“CoA Institute”) through the Freedom of Information Act (“FOIA”) reveal that Ambassador Robert Lighthizer, the United States Trade Representative (“USTR”), and Stephen Vaughn, General Counsel to the USTR and former Acting Trade Representative, used their personal email addresses to conduct official government business in 2017 and 2018. Considering the Administration’s aggressive trade policy that is increasing costs on American consumers and businesses, transparency is of paramount importance.

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The Brief – June 3, 2019

Cause of Action Institute published its May newsletter today. You can read the newsletter here and subscribe to our monthly newsletter here

                                         Message from John

Our team is fortunate enough to spend every day working to tear down barriers and protect individual and economic liberty, and we are exceptionally grateful for the days where we get to see those barriers removed. In early May, Cause of Action celebrated a decision from a U.S. District Court denying all damages against our clients, Robert and Angelo Cupo, and their small business. This decision was not only a victory for this family, but for all small business owners and entrepreneurs who fear the administrative state.

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GAO Report Finds EXIM Potentially Provides Billions in Financing to Companies with Delinquent Federal Debt

While the Export-Import Bank (EXIM) celebrated the recent confirmation of its president and two members of its board of directors, the Government Accountability Office (GAO) released a troubling report concerning EXIM potentially providing billions of dollars in loans and financing to companies improperly. GAO found EXIM failed to use a federal database available to all government agencies free of charge to identify companies that have delinquent federal debt. Consequently, EXIM may have provided financing to ineligible companies and increased it’s susceptibility to fraud.

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Investigation Update: GSA Continues to Block Disclosure of White House Directive on Congressional Oversight Requests, Reveals Sensitive Review Procedure for Media Requesters

Cause of Action Institute (CoA Institute) received an interim response yesterday from the General Services Administration (GSA) on a Freedom of Information Act (FOIA) request that suggests the agency is deliberately stonewalling the release of a White House directive instructing agencies on how to respond to congressional oversight requests. Records released by the agency also suggest that the GSA has implemented a “sensitive review” FOIA process by which news media requesters are subject to an extra layer of pre-production review.

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Cause of Action Institute Calls on NASA to Revise Proposed FOIA Rule

Cause of Action Institute (CoA Institute) submitted a public comment to the National Aeronautics and Space Administration (NASA) today, concerning the agency’s proposed revisions to its Freedom of Information Act (FOIA) regulations. Our comment offers improvements to various aspects of the proposed rule which are inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for relevant records. CoA Institute also suggests an additional provision that was not proposed by the agency, implementation of the “foreseeable harm” standard, a provision we are investigating government-wide.

NASA refers to the White House Office of Management and Budget’s Uniform FOIA Fee Schedule and Guidelines as an authority for interpreting the FOIA and the agency’s implementing regulations.  However, the OMB Guidelines have been statutorily superseded, in part, by Congress’s passage of the OPEN Government Act of 2007 and conflict with case law developments. CoA Institute asks NASA to remove any reference to the OMB Guidelines in its final rule. This change is important because continued reliance on the OMB Guidelines will make it more difficult for certain kinds of requesters to receive fee reductions.  Specifically, the OMB Guidelines retain outdated definitions of “representative of the news media”[1] and “educational and non-commercial scientific institution.”[2]  This change will also make NASA’s regulations internally consistent, as they often correspond with current law and, consequently, contradict the outdated guidelines.

Although NASA adopts the current definition of a “representative of the news media,” it seeks to impose novel requirements that would make it more difficult for news media requesters to obtain a fee reduction.  Specifically, NASA would require a news media requester to explain (1) how it intends to disseminate records, (2) why those records constitute “current news,” or are of “public interest,” and (3) how the records will “shed light on agency statutory operations.” Each of these requirements is inconsistent with the FOIA and relevant caselaw, particularly Cause of Action v. Federal Trade Commission.  The fee category inquiry turns on the nature of the requester, not the purpose of his or her request.  If NASA retains these proposed hurdles, journalists and watchdogs, among others, will find it more difficult to receive favorable fee treatment.

Additionally, certain language in the proposed rule suggests that NASA considers only records within its physical “possession” to be subject to the FOIA.  This misstates the law.  Whether a record is an “agency record” for purposes of the FOIA, and therefore available for disclosure, depends on whether it is under an agency’s legal “control.”  “Control” includes instances of “constructive possession,” such as when records are stored in private email accounts or created and/or maintained by a contractor.  The FOIA statute and relevant case law are clear on this point. If NASA does not replace the word “possession” with “control” it will engender confusion and may lead to the improper denial of FOIA requests, particularly those that seek records of agency business that were created or obtained on personal accounts or record systems.

NASA’s rulemaking is supposed to implement the FOIA Improvement Act of 2016, but there is one amendment that has not been addressed: the “foreseeable harm” standard.  Under that new standard, an agency may only withhold records if it “reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”  The rule prohibits the mere technical application of FOIA exemptions. Without the language proposed by CoA Institute, it could be harder to hold NASA accountable for its compliance with the FOIA.  Some agencies have taken the view that the “foreseeable harm” standard is inconsequential.  Yet that view renders the standard mere surplusage, which is an unacceptable outcome.  By adding a provision to implement the “foreseeable harm” standard, NASA would demonstrate its commitment to the law.

Our comment to NASA is part of our ongoing efforts to ensure that all agencies continue to update their FOIA regulations to reflect the current language in statutory guidelines. The FOIA is a vital component for efforts to ensure transparency and accountability in government, and CoA is committed to leveraging our expertise to encourage proper conformity with the law among all regulatory agencies. We have submitted 27 public comments to various rulemaking efforts since the passage of the FOIA Improvement Act of 2016, and we hope NASA will follow in the footsteps of other agencies who have adopted our recommendations to conform with the law.

Ryan Mulvey is counsel at Cause of Action Institute.

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[1] Cause of Action v. Fed. Trade Comm’n, 799 F.2d 1108 (D.C. Cir. 2015)

[2] Sack v. Dep’t of Def., 823 F.3d 687 (D.C. Cir. 2016).

CoA Institute Sues 14 Federal Agencies in Ongoing FOIA Investigation

Washington, D.C. (May 23, 2019) – Today, Cause of Action Institute (CoA Institute), a government watchdog organization, filed a lawsuit against 14 federal agencies seeking access to records concerning government-wide implementation of the Freedom of Information Act’s (FOIA) “foreseeable harm” standard. In October 2018, CoA Institute sent FOIA requests to 25 federal agencies as part of an investigation into the Administration’s implementation of this provision. The 14 agencies named in the lawsuit failed to provide timely determinations to the organization’s requests.

Ryan Mulvey, counsel at Cause of Action Institute:

“The failure of these 14 federal agencies to adhere to FOIA’s required timeline for response is unacceptable. For nearly seven months, we have waited for information concerning the agencies’ adherence to FOIA and diligence in implementing important amendments passed by Congress in 2016. The FOIA process is an integral vehicle for government accountability but it is only effective when government meets its statutory obligations. CoA Institute is committed to holding the government accountable and will continue to pursue these important records concerning fair administration of the FOIA.”

Background

The FOIA Improvement Act of 2016 included a “foreseeable harm” provision 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 and requires agencies to go beyond mere formulaic justifications for redacting records.

The Department of Justice Office of Information Policy (OIP) is tasked with providing guidance to the rest of the Executive Branch on the proper administration of the FOIA. After it failed to publish any government-wide directives on the proper interpretation and implementation of the “foreseeable harm” standard, CoA Institute opened an investigation into the administration of the FOIA and the “foreseeable harm” standard of 25 federal agencies. Fourteen of those agencies failed to issue a final determination in response to the requests within the statutorily required period, thus prompting CoA Institute to file a lawsuit to ensure the production of agency records.

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

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.

Techdirt Sues ICE for Records Relating to Seizures of Website Domains

Washington, D.C. (May 23, 2019) – Cause of Action Institute (CoA Institute) today, on behalf of Floor64 and Techdirt, a media outlet that reports on technology, filed a complaint against U.S. Immigration and Customs Enforcement (ICE) seeking records responsive to a FOIA request regarding ICE’s “Operation In Our Sites.” The government failed to provide any responsive records to Techdirt’s FOIA request – leaving them with no recourse but to sue the government.

Techdirt requested information about “Operation In Our Sites,” after the agency issued a press release touting its efforts to work with “high-profile industry representatives and anti-counterfeiting associations” to seize 1 million website domains. There are general concerns the sites, while allegedly offered counterfeit or copyrighted material, were seized without due process, and that federal law enforcement agents relied on industry representatives to identify the alleged website domains – raising the concern of actual or the appearance of cronyism.

James Valvo, counsel and senior policy advisor at CoA Institute, issued the following statement:

“This lawsuit and its underlying issues are why transparency and FOIA are so important. One million website domains were seized in partnership with corporate industry representatives, and the public deserves to know which sites were seized, the process by which they were taken to ensure due process, and the level of involvement corporate interests had on targeting sites to ensure the process was free of cronyism. These answers could be cleared up quickly if the government had responded properly to our client’s FOIA and produced responsive records.”

Techdirt is a news site, operated by Michael Masnick and Floor64, that relies on a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology, and legal issues that affect companies’ ability to innovate and grow.

Michael Masnick, founder of Floor64 and editor of Techdirt, issued the following statement:

“At Techdirt, we’ve been following ICE’s questionable website seizures, based solely on input from a few corporations, for years — including the fact that it has had to quietly return many of the domains it improperly seized. It is quite worrisome that after those past mistakes, ICE has now chosen to completely hide the ball and ignore lawful FOIA requests to avoid scrutiny of its process for censoring websites.”

Background

In November 2018, ICE issued a press release touting its enforcement efforts in “Operation In Our Sites,” a global operation aiming to combat copyright-infringement, announcing the seizure of more than one million website domains through “combined efforts of law-enforcement agencies across the world, high-profile industry representatives and anti-counterfeiting associations.”

In response, Mr. Masnick of Techdirt submitted a FOIA request to the agency seeking access to the information ICE advertised in their release: a list of the domains seized, court filings relating to the seized domains, and email communications with the high-profile industry representatives and anti-counterfeiting associations mentioned.

ICE issued a determination in February 2019, stating that it had found no responsive records to Techdirt’s request. After a successful appeal, the FOIA request was remanded to the ICE FOIA Office, but the agency has failed to produce responsive records.

Complaint, Floor64 v. U.S. Immigration and Customs Enforcement

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