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07/7/2016

Did Federal Government Push Controversial Hawaii Gun Law?

Washington, DC – Cause of Action Institute (CoA Institute) today filed a Freedom of Information Act (FOIA) request to examine any potential involvement by the Department of Justice (DOJ) in preparing or advocating for Hawaii’s recently-passed law to restrict the exercise of constitutionally-protected gun rights.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “While touted as an important public safety measure designed to encourage responsible gun ownership and assist law enforcement, in reality this legislation will place law-abiding American citizens into a database maintained by the federal government to monitor criminals. This measure has the potential to severely chill gun ownership in Hawaii and limit individuals from exercising their Second Amendment rights.”

On June 23, 2016, Hawaii Governor David Ige signed into law SB 2954, thereby authorizing “county police departments in Hawaii to enroll firearms applicants and individuals registering their firearms” into a federal database known as “Rap Back,” which is a centralized “criminal record monitoring service” maintained by the FBI.

The Hawaiian gun law is unprecedented.  It makes Hawaii the first state to submit information about its gun-owning citizens to the federal government. In light of current efforts by the Obama administration to create a national gun registry—which would be prohibited under current law —there is significant interest in examining the role, if any, played by the federal government in the development of this new law.

The full FOIA request is available HERE

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07/7/2016

More needs to be done to fix FOIA (Judge Lechner Opinion–The Hill)

More needs to be done to fix FOIA

By Alfred J. Lechner, Jr. | July 06, 2016

Having just celebrated its “golden” 50th anniversary this Independence Day, the Freedom of Information Act (FOIA) is in desperate need of reform. President Obama issued a memorandum a day after his inauguration directing that the FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”  Instead, Obama administration agencies have sought to delay FOIA document production and taken advantage of FOIA loopholes to keep the public in the dark when disclosure of government information is most beneficial.  As described in the 2016 House Committee on Oversight and Government Reform report, “FOIA Is Broken,” agencies routinely “overuse and misapply exemptions,” create policies “designed to deter requesters from pursuing requests and create barriers to accessing records.”

Bipartisan efforts in Congress to amend FOIA, which the president supports, reaffirm the importance of this essential tool for democratic governance and accountability.  In June, the FOIA Improvement Act of 2015 (S. 337) passed both the House and the Senate and the president signed the bill into law last week.

The FOIA Improvement Act ultimately aims to codify a “presumption of openness” by amending the FOIA to state that unless the agency “reasonably foresees” that disclosure would cause identifiable harm to an interest protected by an exemption, or if the disclosure is prohibited by law, the material should be released. Under the bill, agencies will be required to make records available in an electronic format and there will be an expanded and codified role for a more independent Office of Government Information Services.  These are commonsense ideals for a more open government. The primary principle underlying FOIA when it was signed into law a half century ago was to “hold the governors accountable to the governed.”

Unfortunately, the broad language in the FOIA Improvement Act does not address powerful agency disincentives to comply with and promote the goals of FOIA. The well-intentioned, yet undefined “reasonably foresee” standard may result in years of litigation until its transparency goal is achieved.  Courts will rule upon the application of this standard after viewing documents behind closed doors.  Such in camera review, in which the court reviews the documents in secret without disclosure to the opposing party, is antithetical to our adversarial system of justice; it places the judge in the awkward position of serving as both judge and advocate.

Fundamental problems with the FOIA will remain.  A recent study by the Associated Press (AP) found that the government, across agencies, was taking “longer to turn over files,” increasingly claiming that it could not locate records, and had “refused a record number of times to turn over files quickly that might be especially newsworthy.”  The AP also found that the government “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.”

My organization, the Cause of Action Institute, spent three years litigating two Federal Trade Commission misinterpretations of FOIA fee provisions that were superseded by the OPEN Government Act of 2007, a law that anticipated the increased scalability of the news industry.  Justice was finally achieved following appeal to the D.C. Circuit and an opinion authored by Chief Judge Merrick Garland.  Agency delay, misapplication of exemptions, and reliance upon outdated guidance contribute to the problems of a broken FOIA and result in unnecessary agency costs.

Congress periodically updates the FOIA, yet federal agencies continue to find new ways to delay or avoid compliance. For example, although text messages and instant messages involving official government business are records subject to the FOIA, some agencies simply make no effort to store, locate, or search for these records, depriving the public of appropriate information.  Others, such as the IRS, acknowledge that such messages are records subject to the FOIA, and yet do not preserve them long enough for a requestor to seek access to them. Cause of Action Institute has sued the IRS over an agreement it signed with its employee union to destroy instant messages sent between IRS employees. This is a violation of the Federal Records Act and makes FOIA requests for these communications impossible.

Agencies and their employees need to be incentivized to provide greater disclosure and penalized for non-compliance.  Agencies should recognize and reward employees who timely produce public records.  Congress should also enact penalties for agency non-compliance by making attorneys’ fees and costs mandatory if a FOIA requester has to sue to obtain records.

Since it was first enacted in 1966, Congress has passed major FOIA reform legislation in 1976, 1986, 1996 and 2007. The current decennial effort to amend the FOIA, while a welcome demonstration of congressional bipartisanship to promote Executive Branch transparency, is a missed opportunity to fix many longstanding, fundamental problems. Hopefully, the political will to solve these problems will manifest in time for the “FOIA Improvement Act of 2026.”

Alfred J. Lechner, Jr. is a former U.S. District Judge for the District of New Jersey, and President and CEO of the Cause of Action Institute, a District of Columbia non-profit oversight and transparency law firm.

http://thehill.com/blogs/congress-blog/judicial/286632-more-needs-to-be-done-to-fix-foia

 

 

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07/5/2016

Cause of Action Institute Investigates Private Meeting Between Bill Clinton, Attorney General

Washington, DC – Cause of Action Institute (CoA Institute) filed a Freedom of Information Act (FOIA) request for information surrounding the recent private meeting between Attorney General Loretta Lynch and President Bill Clinton that occurred on June 27, 2016 at the Phoenix airport, just days before the FBI announced it would not recommend charges against former Secretary of State Hillary Clinton. The Department of Justice (DOJ) apparently attempted to keep the meeting secret, as reporters on the ground were told: “no photos, no pictures, no cell phones.” 

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “A private meeting between President Bill Clinton and Attorney General Loretta Lynch raises serious concerns about impartiality at the Department of Justice. Today’s announcement that the FBI will not recommend pursuing charges against Hillary Clinton does not remove the public interest in knowing what was discussed.”

To understand the purpose of this meeting, Cause of Action Institute has requested all records, transcripts, or recordings of the meeting as well as the Attorney General’s schedule for June 26 – 28, 2016, including but not limited to pre- and post-meeting email which concern the meeting in any way.

The full FOIA request is available HERE

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06/29/2016

Cause of Action Institute Calls for Investigation into Massive Disclosure of IRS Taxpayer Information to DOJ, FBI

Washington D.C. – Cause of Action Institute (CoA Institute) today called upon Treasury Inspector General for Tax Administration (TIGTA) J. Russell George to investigate whether IRS employees violated the law by disclosing more than a million pages of confidential information on tax-exempt groups to the FBI and DOJ’s Public Integrity Section.  CoA Institute also demanded DOJ Inspector General Michael Horowitz examine whether FBI and DOJ employees violated taxpayer confidentiality laws by inspecting that data.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “The intentional disclosure of taxpayer information, especially information about groups that may have been targeted for their political viewpoints, not only violates the law but represents a breach of public trust.  Americans deserve to know how Washington handles their most private information.  Vigilant oversight is necessary to determine whether federal officials improperly accessed IRS records.  This incident may be the largest and most significant breach of taxpayer confidentiality laws by the federal government in U.S. history.”

The call for investigation comes more than three years after CoA Institute first submitted a request for records seeking information relating to the disclosures.  The IRS finally responded to the request on March 9, 2016, showing that, between 2009 and 2012, neither the FBI nor the DOJ submitted the statutorily-required requests for disclosure of sensitive tax return information.  CoA Institute investigators also obtained reports submitted by the U.S. Treasury, which oversees the IRS, to the Joint Committee on Taxation of Congress, which reported only around 2,000 routine tax disclosures from IRS to the DOJ, mainly through U.S. Attorneys’ Offices. However, the IRS actually disclosed more than 1.1 million pages of tax return information to the FBI in October 2010, and the DOJ Public Integrity Section appears to have inspected that information.

To read the full letter, click HERE.

Section 6103 of the Internal Revenue Code provides a strict rule of confidentiality for tax returns and return information.  Unless a statutory exception applies, government agencies and their employees may not disclose or inspect such information.  Violations can include fines, termination from employment, and imprisonment.

The information in today’s letter will be incorporated into a comprehensive investigative report to be released in the coming weeks by CoA Institute. The report will outline a pattern of abuse by the Obama administration relating to the safeguarding of confidential taxpayer information.

CoA Institute Executive Director Daniel Epstein: “Our staff’s detailed review of thousands of documents over more than fifty months has confirmed the lack of compliance by this administration with statutory requirements designed to safeguard Americans’ most private information.  As our forthcoming report will reveal, the administration’s revealed indifference to compliance has serious implications not only for the politicization of the bureaucracy but for the freedoms of any individual targeted by that bureaucracy’s menacing crosshairs.”

BACKGROUND

In October 2010, the IRS Exempt Organizations segment of the Tax Exempt and Government Entities Division disclosed more than 1.1 million pages of return information on 21 disks to the FBI and DOJ Public Integrity.  DOJ Public Integrity and the FBI sought this information to investigate potential prohibited political activity allegedly undertaken by these groups.  As part of a Freedom of Information Act lawsuit against the IRS and DOJ, CoA Institute obtained records demonstrating that neither the Public Integrity Section nor the FBI ever submitted a request for disclosure of tax return information to the IRS between 2009 and 2012, as required by federal statute.

CoA Institute alerted TIGTA about the possible violation of Section 6103 with respect to the October 2010 disclosure by letter dated July 23, 2015.  But that notice went unanswered.  Similar concerns raised in June 2014 by the U.S. House Committee on Oversight and Government Reform also were ignored.  Now, newly-disclosed IRS records confirm these earlier concerns that the IRS, DOJ, and FBI likely broke laws prohibiting the unauthorized disclosure and inspection of taxpayer information.

As described in today’s letter, both the FBI and DOJ Public Integrity failed to file requests for disclosure under the relevant provisions of Section 6103, and the IRS lacked authorization to disclose the 1.1 million pages of tax-exempt entity return information.  Given the pattern of abuse in the current Administration with respect to tax-exempt organizations, independent inquiry into what actually happened is not only appropriate, but necessary.

To access CoA Institute’s June 29, 2016 Letter to TIGTA and the DOJ IG, click here.
A full list of exhibits can be accessed here.
To access CoA Institute’s July 23, 2015 letter to TIGTA, click here.

 

 

 

 

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06/24/2016

Cause of Action Institute Investigates Federal Censorship of Islamic Terrorism Terminology

Washington, DC – Cause of Action Institute (CoA Institute) today sent three Freedom of Information Act (FOIA) requests for documents surrounding recent instances where federal agencies have decided to censor language dealing with Islamic terrorism in order to keep full information from the public.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Political censorship not only chills public access to information, but also undermines public safety. The proposed DHS policy on censorship is counterintuitive and dangerous. The American public has the right to know who is engineering this censorship.”

Orlando shooter 911 transcript redactions:

CoA Institute sent a letter to the U.S. Department of Justice (DOJ) and the FBI seeking information on the redaction of the transcripts of a 911 telephone call made by Omar Mateen, the Orlando shooter, during his horrific rampage. The FBI has not explained when, if ever, it will release the entirety of the transcripts.

U.S. Attorney General Loretta Lynch indicated that the Obama administration withheld portions of the transcript linking the killings in Orlando to the Islamic State “to avoid re-victimizing those people that went through this horror,” but failed to provide any explanation as to how releasing information already public knowledge would “re-victimize” survivors.

After broad criticism, the DOJ reversed course and released a partial transcript without redactions. Yet the DOJ is still attempting to obscure the record by withholding critical information. The full transcript has not been released and, while the White House states that the DOJ ordered the redactions, the agency has refused to identify the individuals responsible. The FOIA request by CoA Institute seeks to better understand agency decision-making on this this matter, as well as the release of the full, un-redacted transcript.

Islamic terrorism terminology:

CoA Institute also is investigating a decision by the Obama administration to redact and purge the use of certain terms relating to Islamic terrorism in law enforcement and counterterrorism training materials and in presentations to the public and the media.

Following the June 12, 2016 mass murder of American citizens in Orlando, CIA Director John Brennan testified in an open session of the Senate Select Committee on Intelligence on the status of the United States fight against the Islamic State (ISIL), explaining that “despite all our progress against ISIL on the battlefield and in the financial realm, our efforts have not reduced the group’s terrorism capability and global reach.”

Unfortunately, Director Brennan left unaddressed the significant handicap that he and others in the Obama administration have placed on law enforcement and counterterrorism personnel by censoring and eliminating references to the underlying religious motivations of Islamic terrorists. Starting in 2011, Brennan led an aggressive campaign to purge any critical references to, or even mention of, Islamic ideology, beliefs, and cultural terms from intelligence and law enforcement training materials. In addition, a recent report from the Homeland Security Advisory Council recommends that law enforcement involved in fighting violent extremism “[r]eject religiously-charged terminology and problematic positioning by using plain meaning American English.”  The report specifically calls for eliminating the use of terms such as ‘jihad,’ ‘sharia,’ ‘takfir’ and ‘umma.’

The use of specific, accurate, and even technical terminology in law enforcement is integral to effective counter-terrorism operations and training. CoA Institute accordingly has sent FOIA requests to both the CIA and the Department of Homeland Security seeking information on the Administration’s policies relating to Islamic terrorism terminology.

The full FOIA request for details of the Orlando killer’s 911 call is available HERE
The full FOIA request to CIA is available HERE
The full FOIA request to DHS is available HERE

 

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06/20/2016

Cause of Action Institute Files Opening Brief in Appeal for Clinton Emails

Washington, DC – Cause of Action Institute (CoA Institute) and Judicial Watch, Inc. today filed a joint brief with the U.S. Court of Appeals for the District of Columbia arguing that email records from the private server of former Secretary of State Hillary Clinton likely exist and have yet to be recovered by the State Department in accordance with the Federal Records Act. This evidence was ignored in a previous decision by the lower court.

On December 5, 2014, twenty-two months after Sec. Clinton left office, paper copies of 30,490 work-related emails were delivered to the State Department. However, Secretary Clinton held back an additional 31,830 emails, which her attorneys declared to be personal records. None of those additional emails were reviewed by anyone at the State Department or the National Archives and Records Administration (NARA).

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Former Secretary of State Hillary Clinton did not preserve her emails in accordance with the law and the State Department should be held accountable. Evidence shows that the email Mrs. Clinton belatedly returned to the State Department is an incomplete set. Through its appeal, the Cause of Action Institute seeks to compel Secretary Kerry and NARA to recover all of Mrs. Clinton’s email records in accordance with the Federal Records Act.”

The brief shows the defendants have refused to initiate action through the Attorney General to recover a complete and accurate set of all federal records that Secretary Clinton unlawfully removed from State Department custody. The brief follows the release of a recent State Department Office of Inspector General (IG) report that also found Hillary Clinton failed to comply with the Federal Records Act. Consistent with the brief filed today, the IG report found that Mrs. Clinton failed to provide all of her emails to the State Department.

Cause of Action Institute filed its initial complaint on July 8, 2015 in federal court in Washington, D.C. The defendants in that suit argued the case was moot because the State Department received 55,000 pages of emails from Mrs. Clinton.  The district court agreed with defendants and dismissed the suit. Today’s filing presents compelling evidence that contradicts the lower court’s decision.  Cause of Action Institute’s case has been consolidated with a similar case by Judicial Watch.

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06/16/2016

Cause of Action Institute Investigates Terms of $14 Million Contract Between CFPB and Political Ad Firm

Washington, DC – Cause of Action Institute (CoA Institute) sent a Freedom of Information Act (FOIA) request to the Consumer Financial Protection Bureau (CFPB) for information surrounding a recent contract worth an estimated $14 million with GMMB, Inc., a powerful media consulting shop. GMMB, Inc. has produced partisan political ads for numerous high-profile campaigns, including for President Obama and Hillary Clinton.

“CFPB is a federal agency engaged, as part of its consumer protection responsibilities, in substantial consumer information collection activities,” wrote Alfred J. Lechner, Jr. Cause of Action Institute President and CEO and a former federal judge. “Given GMMB’s partisan political clients, CoA Institute is concerned about the nature of and safeguards applied to any CFPB information supplied to or received from GMMB.”

Recent empirical data show political favoritism in federal contract awards. Given GMMB, Inc.’s statement that the CFPB contract covers costs for “independent research on messaging and demographic targeting,” Cause of Action Institute seeks to confirm that appropriate firewalls are in place to ensure that American taxpayers are not subsidizing political coordination.

“Firms contracted by campaigns should not and cannot be using information garnered by federal agencies to support political causes,” the letter states.

CoA Institute requests information about the contract, all communications between CFPB and GMMB, Inc., as well as any consumer data CFPB may have shared, including consumer lists, individual addresses, and targeted advertising.

Related

WSJ_Financial_Reg

Group Asks CFPB for Details of Ad Campaign
Nearly all of the federal agency’s advertising dollars are going to GMMB Inc.

Read more HERE

 

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