Washington, D.C. (June 19, 2019) – After nearly four months, Cause of Action Institute (CoA Institute) has finally received an explanation from the Department of Commerce (Commerce) that claims the Commerce Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed automobile tariffs may constitute a presidential record. In this determination, which is in response to CoA Institute’s Freedom of Information Act (FOIA) request and subsequent litigation, Commerce states it is reviewing whether the report does in fact constitute a presidential record, which would remove it from the scope of the FOIA. It also claims that if the report ultimately is classified as an “agency record,” Commerce will still refuse to provide access to the report under the guise of presidential communications or deliberate process privileges.
District Court Denies FBI’s Open America Motion in Daily Caller News Foundation FOIA Lawsuit
Washington, D.C. (June 12 2019) – Cause of Action Institute (CoA Institute), celebrated a victory for its client, the Daily Caller News Foundation (DCNF), after the U.S District Court for the District of Columbia denied the Federal Bureau of Investigation’s (FBI) motion for an Open America stay. The victory for DCNF will ensure the FBI produces court ordered records, 500 records per month, pertaining to DCNF’s Freedom of Information Act (FOIA) request for documents relating to Special Government Employee Daniel Richman. The Court largely echoed the arguments made by CoA Institute that the FBI failed to show any unexpected spike in FOIA requests or litigation and had not properly reduced its FOIA backlog.
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.
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.
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.
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.
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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Open in new tab [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).