Cause of Action Institute Files Appeal with D.C. Circuit to Secure FOIA Access to Internet Browsing History Records

Arlington, VA (Jan. 16, 2020) – Earlier this week, Cause of Action Institute (“CoA Institute”) filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action Institute v. White House Office of Management and Budget, a Freedom of Information Act (“FOIA”) lawsuit concerning access government officials’ Internet browsing histories.  The appeal seeks to overturn the district court’s determination that such records are outside the scope of disclosure, even when they are created on government-issued computers in the course of official business.  CoA Institute field the underlying lawsuit against the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) in June 2018.

As CoA Institute Counsel Ryan Mulvey explained at the beginning of the litigation:

The taxpayer foots the bill for the government’s Internet usage; the taxpayer deserves to know whether bureaucrats are behaving as proper stewards of their online resources. . . . The public has a right to know what websites are being accessed in the course of official agency business. . . . [Internet browsing history] records reveal the sorts of resources that have influenced decision-making[.]

The most problematic aspect of the district court’s opinion concerns the application of the so-called Burka test, which is often used to determine whether records are under agency “control” and therefore available under the FOIA.  Judge Reggie B. Walton held that one of the four factors of the Burka test—namely, the extent to which agency personnel have read or relied on certain records—was “decisive” in determining control, even when it is undisputed that an agency created the records in the legitimate course of agency business.  Because there was no evidence suggesting that agency officials later referenced or used their browsing histories for another purpose, the court ruled against CoA Institute, even though the three remaining Burka factors were all in CoA Institute’s favor.

Unless corrected by the D.C. Circuit, Judge Walton’s opinion threatens to confuse prevailing caselaw on the application of the Burka test.  Although an inquiry into how an official may have actually used certain records could be important in some instances—such as when the records originated with a third-party or were created by the employee for purely personal purposes—it is entirely out-of-place when the records at issue were created at the agency, with agency resources, and while conducting agency business.  Especially in a rapidly evolving electronic age, when many records are created automatically by government information systems and perhaps infrequently used thereafter, it is vitally important to avoid an “actual use” test that could sweep swathes of agency information outside the reach of disclosure.

# # #

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

About Cause of Action Institute

CoA Institute is a 501(c)(3) nonprofit, nonpartisan government oversight organization that uses investigative, legal, and communications tools to educate the public about how government accountability, transparency, and the rule of law protect liberty and economic opportunity.

 

# # #

Cause of Action Institute Files Transparency Lawsuit Against California State Controller on behalf of OpenTheBooks.com

Arlington, VA (Jan. 16, 2020) – Last week, Cause of Action Institute (“CoA Institute”) filed a California Public Records Act lawsuit against the California State Controller on behalf of its clients, OpenTheBooks.com and Adam Andrzejewski.  The lawsuit seeks to compel the agency to release records concerning state spending information, including records reflecting line-by-line vendor payments.  OpenTheBooks.com, founded and led by Mr. Andrzejewski, is the largest private repository of United States public-sector spending.  It has been trying to acquire checkbook data from the Controller for over six years, but it has faced continual delay, silence, and obfuscation.

To date, California is the only state to refuse public access to line-by-line spending information; OpenTheBooks.com regularly collects and publishes all 49 other states’ spending information.  The Controller’s actions, in this case, are especially egregious as it claims it is unable to even identify the requested information.  This is an astounding claim from an agency that openly admits to paying 49 million bills annually, totaling approximately $320 billion in payments.  If the Controller is truly unable to effectively manage public records concerning its core operations, then it calls into question its ability to effectively combat waste, fraud, corruption, and taxpayer abuse in the fifth largest economy in the world.

The public has a right to understand how its tax dollars are spent.  The Controller has yet to offer any legal basis for its refusal to produce records to OpenTheBooks.com’s auditors and investigators.  CoA Institute’s efforts in this new lawsuit, however, should help to bring a little more sunshine to the operation of the California government and secure information about the 49 million bills paid by the Controller in 2019 alone.

OpenTheBooks.com and Mr. Andrzejewski are represented by CoA Institute Counsel Ryan P. Mulvey and local counsel K. Greg Peterson, Esq. of Sacramento, CA.  OpenTheBooks.com’s press release is available here.  A copy of the Complaint and initial exhibits is available here.

# # #

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

About Cause of Action Institute

CoA Institute is a 501(c)(3) nonprofit, nonpartisan government oversight organization that uses investigative, legal, and communications tools to educate the public about how government accountability, transparency, and the rule of law protect liberty and economic opportunity.

# # #



2020 01 10 Am Transparency v Calif State Controller, No 34 2020 80003296 (Calif Sup Ct Sacramento) (Text)

CoA Institute Urges Supreme Court to Rein In FTC’s Unconstitutional Pursuit of Money Damages

Washington, D.C. (November 13, 2019) – Today, Cause of Action Institute (“CoA Institute”) filed an amicus brief in the U.S. Supreme Court supporting cert petitions filed by AMG Capital Management and Publishers Business Services. The petitions urge the Court to review the Federal Trade Commission’s (“FTC”) claim that Section 13(b) of the FTC Act, which authorizes injunctions, also grants the agency power to obtain money damages, raid businesses, and impose asset freezes and receiverships.

Learn More

Cause of Action Sues Commerce Department for Failing to Release Section 232 Uranium Report

Washington, D.C. (Sept. 10, 2019) – Cause of Action Institute (CoA Institute) has stepped up its ongoing battle with the Department of Commerce (Commerce) by suing the agency for failing to respond to its Freedom of Information Act (FOIA) requests seeking access to the agency’s final report to the President regarding its Section 232 investigation into the “Effect of Imports of Uranium on the National Security” and the Department of Defense’s response letter to that report. Learn More

Court Approves Consent Agreement in Federal Trade Commission v. D-Link Systems

WASHINGTON D.C. (August 6, 2019) – Today, the U.S. District Court for the Northern District of California entered a consent order between the Federal Trade Commission (“FTC”) and D-Link Systems, Inc. Cause of Action Institute has represented D-Link Systems throughout this matter. This joint resolution resolves the FTC’s allegations about the security practices D-Link Systems used for its products. D-Link Systems is an industry leader in Internet of Things (“IoT”) and networking solutions.

Key terms of the consent agreement between D-Link Systems and the FTC include the following:

  • No finding of liability for any alleged violation.
  • No finding of deceptive marketing statements or practices by D-Link Systems.
  • No monetary payment requirement.
  • D-Link Systems continues its current comprehensive software security program and can be granted a two-year Safe Harbor for successful security certifications.

This agreement contrasts sharply with the FTC’s other consent orders with IoT companies, which include very broad restrictions on what those companies may say about their products. Importantly, unlike other IoT matters in which the FTC had alleged “deception,” today’s order contains no such restrictions.

John Vecchione, CoA Institute’s President and CEO and lead trial counsel for D-Link Systems commented on the Court’s consent agreement:

“We are pleased with the order that Judge James Donato has entered in this case. In this evolving regulatory landscape governing the Internet of Things, we are confident that this resolution embodies positive policy for the industry. We are honored to represent D-Link Systems, which will continue to make consumer privacy and security a top priority.”

Case Background:

Cause of Action Institute announced on January 10, 2017 that it would represent D-Link Systems, Inc. in its defense against the FTC.

In May of 2017, the Court instructed the FTC to dismiss D-Link Corp. from the case after D-Link Corp. filed a motion to dismiss the case on the basis that the Court lacked jurisdiction over the Taiwan-based parent company which has not conducted any business activity in the United States for many years.

In September of 2017, the Court dismissed three counts against D-Link Systems, Inc. including the FTC’s Section 5 “unfairness” claim due to the “absence of any concrete facts” supporting the FTC’s allegations of potential consumer harm.

On July 2nd, 2019, a proposed joint settlement agreement was filed with the Court. Today the Court issued a consent order approving the parties’ agreement.

For more information on the background of this case, please visit our website.

###

Media Contact: Nichole Van Valkenburg, nichole.vanvalkenburg@causeofaction.org |
202-317-0266 

Case Information
FTC v. D-Link Systems, Inc., Case No. 17-cv-00039-JD (N.D. Cal.)

About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit, non-partisan government oversight organization working for economic liberty unencumbered by overregulation. Cause of Action uses investigative, legal, and communications tools to educate the public about government accountability, transparency, and the rule of law.

About D-Link Systems, Inc.
D-Link Systems is a global leader in connectivity for home, small business, mid- to large-sized enterprise environments, and service providers.

CoA Institute Commends Bipartisan Group of Senators for Introducing FOIA Bill to Correct the Supreme Court’s Decision on Exemption 4

Washington, D.C. (July 24, 2019) – Cause of Action Institute (“CoA Institute”) commends Senators Grassley, Leahy, Cornyn, and Feinstein for introducing the Open and Responsive Government Act of 2019 (S. 2220), a bill that would correct the Supreme Court’s recent misinterpretation of Exemption 4 within the Freedom of Information Act (“FOIA”).  The bill would clarify that the term “confidential” in Exemption 4 only protects information that, if disclosed, “would likely cause substantial harm to the competitive position of the person from whom the information was obtained.”  Last term, in Food Marketing Institute v. Argus Leader, the U.S. Supreme overturned that long-settled interpretation of the term “confidential.”  The bipartisan bill would re-establish the previous status quo.

“We applaud this bipartisan group of senators who are committed to ensuring that the public can conduct rigorous oversight of the Executive Branch by using the FOIA,” said James Valvo, CoA Institute counsel and senior policy advisor.  “The Supreme Court made a misstep with its decision in FMI v. Argus Leader and we’re glad to see that these senators are working to correct that mistake.”

FOIA’s Exemption 4 is generally considered the exemption that protects from disclosure business information that a federal agency obtains but that is then later requested through the FOIA.  The protection for “confidential” information is one of the categories of protected information, in addition to trade secrets and privileged materials.  In an influential opinion, the D.C. Circuit’s interpretation of the term “confidential” in National Parks was that confidential information was that which, if disclosed to the public, “would likely cause substantial harm to the competitive position of the person from whom the information was obtained.”  This interpretation has set the baseline for Exemption 4 withholdings for decades.

The Food Marketing Institute challenged this interpretation as inconsistent with the statute, and the Supreme Court agreed.  The Court provided a new interpretation, which protects information that is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy[.]”  This ruling is likely to dramatically increase the amount of information that the government can withhold from FOIA requesters.  The decision has been met with criticism from open government advocates and members of Congress who are concerned that it will make it more difficult to conduct government oversight.

CoA Institute and a group of cross-ideological open government advocates—including Citizens for Responsibility and Ethics in Washington, FOIA Advisor, Open the Government, and Project on Government Oversight—filed an amicus brief in FMI v. Argus Leader, urging the Supreme Court to apply appropriate canons of statutory construction and maintain the status quo.

The Open and Responsive Government Act of 2019 also codifies the D.C. Circuit’s 2016 decision in American Immigration Lawyers Association v. Executive Office for Immigration Review, which held that agencies may not withhold a portion of a record simply because part of the record may not be responsive to a FOIA request.  CoA Institute applauds this effort as well.

# # #

Media Contact: Nichole Van Valkenburg, nichole.vanvalkenburg@causeofaction.org | 202-317-0266

CoA Institute Defeats IRS Motion to Dismiss Lawsuit Over Access to Congressional Communications

Washington, D.C. (July 18, 2019) – U.S. District Court Judge Ketanji Brown Jackson yesterday denied the Internal Revenue Service’s (“IRS”) motion to dismiss Cause of Action Institute’s (“CoA Institute”) Freedom of Information Act (“FOIA”) lawsuit over the agency’s refusal to produce records relating to its dealings with Congress’s Joint Committee on Taxation (“JCT”).  To date, the IRS has refused to search for records potentially responsive to CoA Institute’s FOIA requests.  The agency instead has argued that all relevant records would categorically be “congressional records” outside the scope of disclosure permitted under the FOIA.  In its failed motion, the IRS claimed that the federal district court even lacked the authority—or subject-matter jurisdiction—to adjudicate CoA Institute’s well-pleaded claims in the first instance.

CoA Institute Counsel Ryan Mulvey: “We are grateful for Judge Jackson’s careful legal analysis, which exposes the government’s flawed understanding of a fundamental legal concept—subject-matter jurisdiction—and which calls into question the agency’s motivation for its motion.  By allowing our case against the IRS to continue, the Court has recognized the potential merit in our claims and, more importantly, provided the public with an affirmation of its right to access government information.  Federal agencies should pay heed: they cannot shift the burden of meeting their obligations under the FOIA onto requesters under the guise of a jurisdictional prerequisite.”

Pointing to the IRS’s “misguided” and “confused contention[s],” Judge Jackson clarified the ambiguous use of the term “jurisdiction” in Section 552(a)(4)(B) of the FOIA, which could refer either to subject-matter jurisdiction—the authority of a court to hear a case—or remedial power—the authority to order certain remedies for a party.  The Court rejected the government’s argument that a requester had to establish certain “factual prerequisites” to gain access to a federal court, and instead reiterated that these “factual prerequisites of a successful claim” involve a “merits-based inquiry” that cannot implicate subject-matter jurisdiction.

The Court also rejected the IRS’s sovereign immunity argument, explaining that the government’s position would reverse the traditional presumptions made in jurisdictional inquiries, and that it would improperly shift the burden of proving that an agency had met its FOIA obligations onto a requester.  In plain terms, Judge Jackson characterized the IRS as trying to put the “cart before the horse.”  Finally, looking to Rule 12(b)(6), the Court affirmed that CoA Institute had “made a plausible claim for relief under the FOIA.”

Case Background

In December 2015, the IRS Office of Chief Counsel issued new guidance claiming that nearly all IRS records relating to the JCT should be treated as “congressional records” and therefore shielded from public disclosure under FOIA.  This revised guidance contradicted long-standing precedent for the sorts of records that agencies must provide under the FOIA.

For months, CoA Institute fought to gain access to IRS communications with the JCT, and other JCT-related records.  Such information, by definition, would comprise “agency records,” as they would have necessarily been received or created by the IRS and are currently in the possession of the agency.  Further, these records would have been used by IRS employees and uploaded or stored into IRS recordkeeping systems, including e-mail or correspondence tracking databases.

Judge Jackson’s decision comes nearly two years after the IRS’s motion was argued in court.  The agency is expected now to file an Answer and to search for and process the records responsive to CoA Institute’s FOIA requests.