Washington Times: Senate GOP demands Obama turn over all communications with IRS

Read the full story: Washington Times

Outside groups already have tried to get a look at the communications between the White House and the IRS, though they have largely been unsuccessful.

Cause of Action, an interest group, has gone to court to try to compel the IRS‘ inspector general to turn over documents it has stemming from its investigation into White House-IRS communications. The inspector general says it has 2,500 pages of records from its investigation but can’t turn most of them over, saying it would violate the privacy of taxpayers involved.

Forbes: Enough Already On IRS Targeting! Maybe, But Whose Tax Returns Went To White House And Why?

Read the full story: Forbes

We wouldn’t know anything about this more debilitating scandal except for a lawsuit for transparency against this promised most transparent administration in history. A non-profit group, Cause of Action, began investigating whether the IRS was improperly sharing taxpayer information with the White House in 2012. Cause of Action filed a Freedom of Information Act request for any correspondence between the IRS and White House about tax returns for individuals or businesses. When the IRS refused the request, the group filed a lawsuit.

 

Having to sue sure doesn’t seem transparent, but it gets worse. There have been a number of allegations of politically motivated IRS leaks. But proving such a thing is difficult, particularly when even the Treasury Inspector General for Tax Administration, TIGTA, errs on the side of keeping taxpayer information confidential. Even if the confidentiality law was broken, the theory goes, it would be breaking it again to reveal the confidences that were revealed to the White House in violation of the law.

Washington Examiner: Chaffetz, House Oversight and Government Reform Committee face big challenges

Read the full story: Washington Examiner

The fact that Chaffetz has expressed a willingness to work with the committee’s top Democrat, Maryland Rep. Elijah Cummings, is a “refreshing” sign that the committee could pass key legislation, said Daniel Epstein, executive director of Cause of Action.

 

Epstein told the Washington Examiner Chaffetz has staffed the committee with a “dynamite” investigative team, highlighting the appointments of deputy staff director Rachel Weaver and general counsel Andrew Dockham.

 

“Staffers are key to whether you get effective oversight,” Epstein said.

Washington Free Beacon: Watchdog Group Appeals Government’s Definition of Media

Read the full story: Washington Free Beacon

The FTC in 2012 denied requests from Cause of Action for fee waivers on several FOIA requests, saying it did meet the qualifications because it was not a news media outlet.

 

““FTC’s desire to chill criticism appears to explain what occurred here,” Cause of Action executive director Dan Epstein said in a statement. “Upholding FTC’s ‘weaponization’ of FOIA will empower agencies to selectively define what is and isn’t ‘media’, thereby blocking transparency and significantly reducing the federal government’s accountability to all Americans.”

 

Cause of Action appealed the denial, but the U.S. District Court of Washington, D.C., ruled in favor of the FTC in 2013, finding that the watchdog group did not qualify as media because it was insufficiently disseminating news to the public.

ABA Panel Presentation: FOIA: Considerations for Practitioners

The ABA Section of Administrative Law and Regulatory Practice Presents:
Freedom of Information Act Workshop

Download the presentation.

Listen to the presentation.

FOIA: Considerations for Practitioners

Daniel Epstein, Executive Director

Read agency FOIA regulations

  • Where do I send the request?
  • What is the method of transmission?
  • What is the fee schedule?
  • What is the deadline to appeal a response?

Are the docs you want already publicly available?

Be specific: This is not a discovery request

  • Provide dates, search terms, and names of agency employees, if possible.
  • Examples:
    • “The work calendars of TIGTA Inspector General J. Russell George from March 1, 2012 to July 31, 2013.”
    • “All documents regarding Mr. Edwards’ official travels for site checks or any other purpose, including the names of any individuals who accompanied Mr. Edwards from February 27, 2011 to the present.”
  • Document follow-up with agency in writing.

FOIA for FOIAs

FTC FOIA

 

FOIA for communications with Congress (because you can’t FOIA Congress directly)

FOIA Congress

Ask different agencies for the same type of documents

DOE FOIA

How do agencies define terms?

OMB

Ethical/practical considerations of using FOIA while in litigation with an agency

According to the Department of Justice:

“[T]here simply exists no statutory or other legal prohibition against using the FOIA to supplement civil, criminal or administrative discovery in pending cases.”

-DOJ, FOIA Update Vol. VI, No. 3 (1985)

 

 

Cause of Action Appeals Ruling In Case Of Government Overreach Against Arkansas Small Business Owner

Cause of Action (CoA), a government accountability organization, today appealed a District Court ruling in the case of Rhea Lana, Inc. v. U.S. Department of Labor.

For a brief history of the case, please click here.

As we announced back in November:

The U.S. District Court for the District of Columbia, though it ruled to dismiss Rhea Lana, Inc. v. U.S. Department of Labor, invited the D.C. Circuit to determine whether the Department of Labor (DOL) may lawfully destroy a small business by finding “violations” and soliciting others to sue using notice letters that evade judicial review.

Cause of Action Executive Director Dan Epstein issued the following statement:

The Department of Labor is hiding behind a false characterization of volunteers as employees, which has the practical effect of preventing the use of volunteers and will shut down successful franchise owners like Rhea Lana.  As the District Court recognized, agencies cannot avoid judicial review by hiding behind such administrative tactics, which essentially demand the recipient to comply or face stiff penalties.

Rhea Lana Riner issued the following statement:

I’m happy to see this appeal filed because it shows that we won’t stop fighting back against unfair government meddling. This case isn’t just about protecting my business – it’s about protecting the rights of mothers everywhere to use their personal time for their own benefit, and the consignment event industry at large. On an even bigger level, it’s about protecting small business owners who find themselves being threatened by big government overreach and overregulation.

The Hill: Six recommendations to make Washington more transparent

Six recommendations to make Washington more transparent

The 114th Congress, which convened on January 6, faces a deeply uncomfortable reality: The American people simply don’t trust their government. Fully two-thirds of Americans believe that Washington is on the wrong track. Public approval of Congress currently hovers around 15 percent—only one point above its all-time low.

The incoming Congress must seek to address this crisis of confidence. Our elected officials can start by taking up transparency and accountability issues to make the government more accountable to taxpayers.

Cause of Action recommends that Congress act in six specific policy areas:

Require Inspectors General to Actually Investigate. Perhaps the most important pro-transparency initiative that Congress can implement is ensuring compliance with the Inspector General Act. Under the Act, Inspectors General are authorized to conduct full investigations when they receive tips that illegal activity is occurring at a federal agency.

This topic is particularly newsworthy given the recent report from the Treasury Inspector General for Tax Administration (TIGTA) confirming that the IRS targeted certain conservative nonprofits based on their political beliefs. However, TIGTA’s report was based only on an audit and not a full investigation. This limited inquiry into IRS’s clearly inappropriate behavior raised more questions than it answered.

In such situations, Inspectors General—whether at the IRS or any other federal agency—should conduct investigations, based upon compulsory interrogatories, subpoenas, and depositions. Audits, which are designed to review program effectiveness, are not the appropriate method of identifying and resolving allegations of illegality, remediable only through an investigative process.

Reintroduce the Grant Act. The Grant Act, originally introduced by then-Rep. James Lankford (R-Okla.) in 2011, is a straightforward bill that would make the federal grant process transparent. It requires federal agencies to establish uniform standards for how they notice, award, and disclose competitive grants. It would also require agencies to rank grant applicants according to those standards—and make them justify any deviation from those rankings. Ultimately, this would allow taxpayers to ensure that federal agencies are awarding grants using a merit-based—and not a politicized—process.

Police Fraud. In 2013, 3.5 percent of all federal payments were improperly awarded—a sum reaching $106 billion.  Congress should conduct oversight to ensure that agencies and the Department of Justice in particular are enforcing anti-fraud laws like the False Claims Act, the Improper Payments Information Act, and the Program Fraud Civil Remedies Act.

The U.S. Government Accountability Office reports that most Inspectors General fail to enforce the Program Fraud Civil Remedies Act.  Further, public reports by federal agencies that merely identify allegations of fraud (like an audit) have barred whistleblowers from pursuing claims under the False Claims Act even when the feds fail to remedy the abuses.

Congress must ensure that these laws designed to empower whistleblowers are not being misread to incentivize agency failures to prevent fraud.

Hold the White House Accountable. In 2009, the White House, secretly demanded that federal agencies keep it apprised of any document requests containing “White House equities”—a term undefined by statute or regulation. Notwithstanding this lack of clarity, the White House obstructs congressional oversight and violates the spirit of FOIA when its political staff chills public oversight for the benefit of the President’s political image.

Congress should increase its oversight over the FOIA process to prevent the White House’s political offices from meddling into records requests to agencies or otherwise amend FOIA to subject those political offices to greater transparency.

Ensure Agencies Follow the Law. The Federal Records Act requires that agencies notify the Archivist of the United States if there is a proposed removal or destruction of records. The Internal Revenue Services’ failure to properly notify the Archivist regarding the supposed destruction of Lois Lerner’s emails shows that this process must be reformed.

Congress can strengthen enforcement of the Federal Records Act by reviewing the reporting process. Congress should also require that agencies create multiple sets of electronic back-ups to preserve emails and other important data.

Encourage FOIA Compliance. The Freedom of Information Act has been updated numerous times to keep pace with changes in technology, yet federal agencies continue to find new ways to avoid transparency. For example, while text messages involving official government business are records subject to FOIA, some agencies simply do not know how to locate and search for these records, disenfranchising the public of information. Another problem, reflected by the 30,000 “lost” and then later “found” Lois Lerner e-mails, is that agencies routinely destroy records – a crime – without any liability.

In light of this, Congress should conduct aggressive oversight to deter agencies from destroying or improperly withholding relevant records.

Effective congressional oversight would demonstrate to the public that the 114th Congress is serious about wisely stewarding taxpayer money and protecting the public from arbitrary and abusive executive power. It’s time for our elected officials to prove that they’re serious about making government work for, rather than against, the American people.

Epstein is the executive director of Cause of Action, a non-partisan organization that uses public advocacy and legal reform tools to ensure greater transparency in government, protect taxpayer interests and promote economic freedom.