Litigation Update: Cause of Action Institute Forces Department of Commerce to Release 232 Uranium Report

On the eve of oral argument before the District Court for the District of Columbia, the Department of Commerce says it intends to publish its Section 232 report on the “Effect of Imports of Uranium on the National Security” tomorrow, July 29, 2021, in a just-filed motion:

On July 29, 2021, Commerce intends to publish the Uranium Report on its website and, on August 2, 2021, it intends to publish the report in the Federal Register. Undersigned counsel has been authorized to represent that the Office of the President has agreed with this course of action.

Cause of Action Institute originally filed FOIA requests for the report over two years ago on April 15, 2019, and filed suit on September 10, 2019.

Ryan Mulvey, counsel at CoA Institute:

We are pleased that the Department of Commerce finally decided to provide transparency on this report, but It should not have taken a FOIA lawsuit to force release when the 232 statute requires publishing reports in the Federal Register. 232 reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.

The remaining issues in the lawsuit include a “policy or practice” claim, which CoA Institute is using to seek judicial review of Commerce’s systematic approach of denying access to Section 232 reports, and the failure of agency to provide the response letter from the Department of Defense.

232 Uranium Report Documents:

More information about CoA Institute’s FOIA litigation for the 232 Auto-Tariff report:

Herring fishermen appeal district court decision upholding industry-killing at-sea monitoring regulations

Washington D.C. – Cause of Action Institute today filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of several family-owned fishing companies based in New Jersey, who hope to block a new regulation that would force them to pay for third-party “at-sea monitors.”  That regulation—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic Atmospheric Administration—requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at industry’s cost, all without congressional authorization.

Last month, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia granted the government’s motion for summary judgment, ruling federal regulators had statutory authorization to force fishermen to bear the cost of monitoring, regardless of the severe economic impacts and lack of scientific justification.  Judge Sullivan also discounted procedural deficiencies in the government’s rulemaking, including its prejudgment of the legality of industry funding.

Jeff Kaelin, Director of Sustainability and Government Relations at Lund’s Fisheries, Inc., and representative for the New Jersey plaintiffs:

The district court reached an unfortunate decision, providing deference to the government, which is enforcing the industry-funded monitoring program without the statutory authority to do so.  The commercial herring fleet has been over-regulated for years, but with little demonstrated biological benefit to the Atlantic herring resource itself.  Industry-funded monitoring, along with reduced quotas and other burdensome regulations, is forcing some herring fishermen out of business and increasing costs to those who still hope to hang on.  The district court’s decision is likely to perpetuate that trend.  We are grateful for the work Cause of Action Institute has undertaken, and we look forward to pursuing our appeal at the D.C. Circuit.  In the end, we hope the rule of law will prevail.

Ryan P. Mulvey, Counsel at Cause of Action Institute:

We aim to convince the D.C. Circuit that Judge Sullivan’s ruling is contrary to the law and facts.  The federal government has overextended its regulatory power far beyond what Congress authorized.  The Magnuson-Stevens Act simply does not give the government and fishery management councils a blank check to regulate according to their whim. The imposition of industry-funded at-sea monitoring is likely to weigh down an already beleaguered commercial fishing industry.

The herring fishermen filed their lawsuit in February 2020.  Further information is available here and here.

Media Contact: James Valvo, james.valvo@causeofaction.org | (571) 482-4182

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DC Circuit Rejects DOJ Attempt to Use “Non-Responsive” as a Tenth Exemption to FOIA

This week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Cause of Action Institute in its challenge to the Department of Justice’s (“DOJ”) attempt to segment records as “non-responsive” in order to avoid disclosure under the Freedom of Information Act (“FOIA”).

The records at issue were DOJ responses to questions from members of Congress known as Questions for the Record (“QFR”). The Circuit shot down DOJ’s argument that it could withhold individual questions and answers as non-responsive within a single QFR document:

DOJ’s position in this case is that each individual question and its corresponding answer within each of the self-contained QFR documents constitutes a separate “record” under FOIA. Resting on this claim, DOJ maintains that if it determined that a particular question-and-answer pairing within a QFR document was unresponsive to Appellant’s FOIA request, DOJ could decline to disclose the material even though none of the material in the QFR document was exempt from disclosure. Though our case law provides for a “range of possible ways in which an agency might conceive of a ‘record,’” we reject DOJ’s approach as an untenable application of FOIA, outside the range of reasonableness.

Unfortunately, the Circuit, while reversing the District Court on standing, dismissed Cause of Action Institute’s second claim challenging to DOJ Office of Information Policy’s guidance on defining a record under FOIA as unripe.

Read more about the decision at Yale Notice and Comment.

Background:

October 30, 2020: Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act

Feb. 8, 2017: Defining a “Record” under FOIA

Aug. 17, 2016: There is No Tenth Exemption

Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule

Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat

Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate job-killing fisheries regulations called the “Omnibus Amendment.” CoA Institute filed suit in February to challenge the industry-killing rule, which requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” at their own cost.

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Cause of Action Institute Urges President Trump To End Coercive Fishing Regulations

On Friday, Cause of Action Institute sent a letter to President Trump thanking him for his Executive Order helping the fishing industry and asking him to intervene and order the suspension and repeal of coercive fishing regulations. We recently filed suit on behalf of a group of herring fishermen, challenging a rule that requires them to pay for government contracted monitors that watch them fish. Not only are these monitors unnecessary, they cost upwards of $710 dollars per day, which can actually exceed a fisherman’s daily revenue. This regulation is unlawful, passed without any statutory authorization of Congress. We request that President Trump act now to immediately lessen the regulatory burden on fishermen and save jobs.

You can read the letter here.

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Cause of Action Institute Joins Coalition Opposing DoD’s Latest Attempt to Create New FOIA Exemption

Cause of Action Institute has signed a joint letter with groups from across the ideological spectrum urging the Chairmen and Ranking Members of the Senate and House Committees on Armed Services to oppose the Department of Defense’s (“DOD”) sixth attempt to undermine the Freedom of Information Act’s (“FOIA”) through a new FOIA exemption.

The DOD proposal would use the FY2021 National Defense Authorization Act to exempt from disclosure “information on military tactics, techniques, and procedures, and of military rules of engagements.” The coalition writes:

The Pentagon’s proposed language would undermine FOIA by creating an unnecessary and overbroad secrecy provision at odds with the law’s goal of transparency and accountability to the public…The Department of Defense, and all federal agencies, already have broad and proper authority to withhold classified information under FOIA exemption one, and to withhold unclassified information under a variety of other statutes… We cannot support the proposed language, but we encourage the Defense Department to work with the committees of jurisdiction over FOIA to address the outstanding concerns and accomplish those mutual goals without codifying language that could be easily abused to keep the public and Congress in the dark about our military.

CoA Institute previously signed a coalition letter pushing back on a similar DoD proposal in 2017.

Read the full letter here.

Gone in an Instant: How Instant Messaging Threatens the Freedom of Information Act

New Report: Federal Agencies Violating Federal Law,  
Not Preserving Instant Messaging Records

Arlington, VA (March 16, 2020)Cause of Action Institute (“CoA Institute”) and Americans for Prosperity Foundation (“AFPF”) today released an investigative reportGone in an Instant: How Instant Messaging Threatens the Freedom of Information ActThe report reveals how numerous federal agencies are violating federal records law and guidance from the National Archives by not preserving instant messaging (“IM”) records. Like email in the 1990s, IM’s increasing integration into the workplace is changing the way people do business. In 2014, Congress amended the Federal Records Act to specifically require that electronic messages be retained. Agencies’ failure to preserve records created on IM platforms (Slack, Teams, Hangouts, etc.), which are prevalent in the workplace, threatens to undermine the Freedom of Information Act (“FOIA”) and put much of the federal government in the dark.  

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