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08/31/2017

Judge Orders Government to Reveal Evidence in FBI Clinton Email Investigation

Washington D.C. – The Honorable James Boasberg, a federal judge for the U.S. District Court for the District of Columbia, today ordered the government to produce an unredacted declaration filed in secret early this summer containing new, undisclosed details about the scope of the FBI’s investigation into Hillary Clinton’s email practices as Secretary of State.

The government had previously disclosed the evidence to the court ex parte and in camera, meaning only the judge was able to review it, but characterized the declaration as including, “additional details about the grand jury process . . . as well as about other sealed proceedings” and was submitted to provide “further details of the subpoenas to establish to the Court’s satisfaction the thoroughness of the inquiries made in this regard.”

Cause of Action Institute filed a motion in June to produce the declaration and the judge today granted that request.

Cause of Action Institute President and CEO John J. Vecchione: “I applaud the court’s opinion. The government attempted to end a case with evidence no one could review. This order makes public details submitted by the government about the FBI’s efforts to recover then-Secretary Clinton’s unlawfully removed emails. Americans deserve to know the full scope of that investigation, and we, as Plaintiffs, should have an opportunity to contest the relevance of the government’s facts.”

In his order, Judge Boasberg writes:

“The 2016 presidential election may have come and gone, but Plaintiffs Judicial Watch and Cause of Action Institute’s quest for Hillary Clinton’s emails lives on. As most readers will remember, Clinton used private email accounts during her tenure as Secretary of State, embroiling the government in myriad Freedom of Information Act suits. In this case, however, Plaintiffs have taken a different tack, alleging a violation of the Federal Records Act. That is, they claim Defendants State Department and the National Archives and Records Administration failed to maintain records of Clinton’s emails and must now seek the Department of Justice’s Case assistance in their recovery. Most broadly characterized, Plaintiffs’ suit pertains to tens of thousands of communications. At this stage, however, the parties have largely zeroed in on a sliver of that trove — to wit, emails sent by Clinton on two Blackberry accounts during her first weeks in office.

“The present controversy is narrower still. To establish its good-faith recovery efforts, the Government has submitted a declaration describing grand-jury subpoenas issued to Clinton’s service providers. The catch? It offers the full version for in camera and ex parte review only. Plaintiffs have responded with a Motion to Produce, arguing that to the extent this Court might rely on the declaration, they must have unfiltered access. After reviewing the document in camera, the Court concludes that it largely rehashes information already made public, thus obviating any need for secrecy. The Court will therefore grant Plaintiffs’ Motion in large part and, subject to a very limited exception, order that Defendants resubmit an unredacted version of the declaration.”

Judge Boasberg’s full order is available here.
The Plaintiffs’ motion to produce the declaration is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

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08/15/2017

CoA Institute Sues FTC for Records Improperly Withheld Under Immunity Reserved for Congress

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the Federal Trade Commission (“FTC”) for improperly withholding records related to the agency’s communication with the U.S. House of Representatives Committee on Oversight and Government Reform. CoA Institute requested these records under the Freedom of Information Act (“FOIA”) in October 2014.

The agency redacted records under various FOIA exemptions, but also refused to release information on the basis of the Speech or Debate Clause of the U.S. Constitution, a safeguard intended to avoid direct interference with legislative activities and protect members of Congress or their aides from judicial inquiry in certain court proceedings.

CoA Institute Counsel Ryan Mulvey: “The FTC failed to provide sufficient justification for its redaction of records. For example, the Speech or Debate Clause is neither a withholding statute nor a privilege that can exempt agency records from disclosure. The Clause is meant to protect lawmakers and staff from harassment in the courts. The FTC is the defendant in this case; the Oversight Committee is not. The FTC is abusing the Constitution to withhold records that the public has a legal right to review.”

The Speech or Debate Clause provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.” The Clause is meant is to bar lawsuits that would hold individual legislators or their aides liable for legitimate congressional activities or that could interfere with ongoing congressional inquiry. It does not permit other branches of government, let alone an independent agency such as the FTC, to redact agency records simply because they implicate congressional communications.

From the FTC’s response in this case, it is unclear how the Committee on Oversight and Government Reform might have tried to invoke the Speech or Debate Clause through the FTC or how disclosure could interfere with ongoing congressional activity. The agency never indicated which investigations would be jeopardized by the disclosure of the requested records. Rather, the FTC simply claimed the Clause applied without giving an explanation as to why each record should be exempt. Similarly insufficient explanations were provided for the FTC’s use of the recognized FOIA exemptions.

CoA Institute’s lawsuit provides an opportunity for the court to review the Speech or Debate Clause and to limit agencies from using it to justify withholding records.

The full lawsuit is available here. Exhibits are available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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08/9/2017

Lawsuit Seeks Records on White House’s Failure to Update FOIA Fee Guidance

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the White House Office of Management and Budget (“OMB”) for records that would show the agency’s action, or lack thereof, to review two pending petitions for rulemaking, one of which is seeking an update to its official guidance concerning Freedom of Information Act (“FOIA”) processing fees. OMB’s FOIA fee guidance on this issue is critical to government transparency because federal agencies are required by law to conform to OMB’s guidance and routinely deny fee waiver requests that should be granted, based on recent judicial precedent.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “Steep FOIA processing fees are a substantial roadblock for many organizations and individuals attempting to reveal how their government makes decisions. It is critical that OMB take action to update its outdated guidance document, which conflicts with binding statutory and judicial authorities.”

On June 2, 2016, CoA Institute submitted a petition for rulemaking to OMB asking it “to issue updated guidance to agencies on how to make [FOIA] fee determinations in compliance with binding statutory and judicial authorities.” This update is necessary because, “[d]espite Congress amending the FOIA several times during the last twenty-nine years and courts interpreting those changes, OMB has not updated its fee guidance since 1987. Federal agencies, however, continue to rely on OMB for guidance when issuing FOIA fee regulations.”

CoA Institute received no communication from OMB regarding this petition. On March 10, 2017, CoA Institute sent a FOIA request to OMB seeking all records that relate to the petition for rulemaking. OMB acknowledged receipt of the FOIA request, but two subsequent requests for updates on the processing of the request have gone unanswered.

The Archivist of the United States has also forwarded a recommendation from the FOIA Advisory Committee to OMB asking it to update this FOIA fee guidance document.

The full lawsuit is available here

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08/9/2017

FTC Destroying Family-Run Tech Support Business Without Evidence of Wrongdoing or Due Process

Washington, D.C. – Cause of Action Institute (“CoA Institute”) is stepping in to defend a small family-run tech support company, Vylah Tec, LLC (“V-Tec”), after the Federal Trade Commission (“FTC”) targeted the company and conducted an hours-long raid of the company’s headquarters on suspicion of “deceptive” sales practices. The raid was initiated as part of a politically-hyped campaign known as Operation Tech Trap headed by the FTC in conjunction with the Florida Attorney General’s office.

V-Tec is a small start-up owned by Robert Cupo that operates out of a single office in Fort Myers, Florida, and provides tech support to customers who buy electronic devices from the Home Shopping Network and other shopping channels. Individuals who purchase electronic devices such as laptops, printers and tablets are provided pre-paid tech support with their purchase. On top of its tech support operation, V-Tec also generates revenue from selling third-party antivirus and other data security software to customers who want additional security on their devices.

The FTC’s sting-like raid, assisted by local police, included hands-in-the air orders, the temporary confiscation of employee cell phones, and police-escorted bathroom breaks. One mother was told she could not leave to pick up her kids from daycare and police officers would use her phone to call and tell them she had been detained for questioning. Despite the hostile raid, FTC investigators were apparently unable to uncover any concrete evidence of wrongdoing by the company.

Nevertheless, a Florida District Court judge was sufficiently convinced by FTC lawyers to grant the government a preliminary injunctive order against V-Tec. This punitive process includes turning the company’s operation over to a third-party receiver and freezing the assets of the Cupo family members. CoA Institute has filed a motion to stay the District Court’s order.

CoA Institute Senior Counsel Cynthia Crawford: “When the government puts a company in its crosshairs, the process becomes the penalty. In this case, the court’s decision to allow an injunctive order is akin to using a sledgehammer to swat a fly. Freezing assets and turning the business over to a receiver is steadily draining V-Tec’s finances and destroying its reputation. Meanwhile the court’s action is harming the thousands of customers who are not receiving the support they paid for. We urge the court to reevaluate the flawed evidence FTC presented and stay this destructive order so that the Cupo family can have their day in court before the company is destroyed.”

In court, the FTC argued that V-Tec’s sales pitches for the software are deceptive, citing two examples of recorded calls. However, the FTC clearly mischaracterized its evidence and failed to support accusations fundamental to FTC’s case. Much of the evidence presented is either incomplete or incorrect. For example, the government in open court, played a portion of a tech support call that they wrongly alleged as deceptive “upselling.” What the government omitted, however, was that the technical support representative stayed on the phone after the customer declined to purchase additional software and addressed the caller’s problem.

A second transcript the FTC submitted in court mislabeled the so-called guilty party as a V-Tec employee, when in fact the person trying to harm the consumer did not actually work for V-Tec. A brief investigation of the call and the surrounding context would have made that clear. A V-Tec support representative actually protected the consumer in that instance, disconnecting the other individual from the call and disabling his remote access to the caller’s computer.

Instead of protecting consumers, the court’s injunction order is causing the most significant consumer harm. Since May 3, 2017, V-Tec has failed to answer over 100,000 customer calls. Many of these are likely customers with lifetime service contracts who, instead of receiving the product they paid for, are stuck in a never-ending hold loop. The order also froze assets of individuals with no actual stake in V-Tec. These individuals cannot access their savings and are struggling to pay for basic life expenses, or in one case, access funds of a wholly unrelated business.

The full motion for stay is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

 

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07/31/2017

CoA Institute Urges Court to Reveal Evidence Regarding the FBI Clinton Email Investigation

Journalist files declaration supporting public interest in release of FBI declaration

Washington D.C. – Cause of Action Institute (“CoA Institute”) has made a filing in support of its motion with the U.S. District Court for the District of Columbia, urging the judge to disclose the full contents of a redacted FBI declaration that was filed so that only the judge can review the entire statement.

The government characterized the declaration as containing new, undisclosed details about the scope of the FBI’s investigation into Hillary Clinton’s email practices as Secretary of State. Specifically, the government said the declaration includes “additional details about the grand jury process . . . as well as about other sealed proceedings” and was submitted to provide “further details of the subpoenas to establish to the Court’s satisfaction the thoroughness of the inquiries made in this regard.” As a result of this litigation, the government revealed for the first time early this summer that the FBI issued grand jury subpoenas in its criminal investigation into Clinton’s email practices.

Cause of Action Institute President and CEO John J. Vecchione: “The FBI’s revelation that grand jury subpoenas were issued during its investigation of Secretary Clinton’s emails revealed a criminal component. Details of these subpoenas could be critical to our case to recover those emails. Unfortunately, the government has taken a step back behind the curtain and submitted a supplemental declaration, in camera and ex parte, meaning only the judge and the government’s lawyers are allowed to see it. We can only surmise the declaration shows that the FBI issued subpoenas to the service providers in search of Ms. Clinton’s BlackBerry emails. Without access to the un-redacted declaration, we cannot know the scope of those subpoenas, nor will we be able to contest the relevance of new facts.

“The public interest in learning the extent of the government efforts to recover unlawfully removed records and basic notions of fair play outweigh the need to protect grand-jury secrecy, the existence of which the government has already revealed.  The government should not be permitted to use the grand jury information as a sword and also shield it from public view. Anglo American law frowns on litigation through secret filings. Accordingly, the Court should require the government to open the curtain, so we can properly respond to the new evidence.”

Matthew Continetti, editor in chief of the Washington Free Beacon, an independent news publication based in Arlington, Virginia, submitted a declaration urging full public disclosure of the government’s filing.  As Mr. Continetti explained:

This matter is one of intense public interest given Secretary Clinton’s nomination in 2016 by the Democratic Party for the presidency of the United States, high-profile positions in government, and continued involvement in public life…

It is essential for the public to understand the full scope and breadth of the FBI’s investigation into Secretary Clinton’s email server for the public to make an informed decision about what transpired during Secretary Clinton’s service to the State Department.  I believe the information sought by Plaintiffs would be of significant public interest and of interest to the readers of the Washington Free Beacon.

The Plaintiffs’ reply in support of its motion is available here.

Mr. Continetti’s declaration in support of the Plaintiffs’ motion is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

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07/18/2017

CoAI Sues for Records of House Committee Chair’s Urging FOIA Obstruction

Records could shed light on DOJ’s communications with Chairman Hensarling, reveal guidance to agencies

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the Department of Justice (“DOJ”) for records that could reveal whether the agency’s Office of Information Policy or Office of Legislative Affairs was involved with a controversial, and legally dubious, directive from the House Committee on Financial Services concerning the processing of records under the Freedom of Information Act (“FOIA”).  The suit also seeks records of related communications between DOJ and twelve federal agencies under the Committee’s jurisdiction.

In May 2017, CoA Institute filed a FOIA request with the DOJ in response to reports that Rep. Jeb Hensarling (R-Texas), Chairman of the House Committee on Financial Services, directed the Department of the Treasury and eleven other agencies to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

CoA Institute Counsel Ryan Mulvey: “Through its Office of Information Policy, the DOJ is responsible for overseeing government-wide compliance with the FOIA.  The DOJ likely would have been consulted by agencies that received Chairman Hensarling’s letter, as well as by the Committee itself when it was considering the directive.  The public deserves to know how and to what extent DOJ FOIA experts have been involved in formulating and implementing this new anti-transparency policy.’”

Because Congress is not subject to the FOIA, a request for records that have been exchanged with the legislative branch can present unique difficulties for an agency.  The law and well-established court precedents require that Congress manifest a clear intent to maintain control over specific records to keep them out of reach of the FOIA.  Chairman Hensarling’s directive is ineffective in this respect.  The mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  Any deviation from the acknowledged standard for defining a “congressional record” would frustrate the FOIA and impede transparent government.

CoA Institute’s complaint is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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07/13/2017

CoAI to President Trump: Appoint Commissioners to FTC

Letter urges swift action to break deadlock, free U.S. businesses from unwarranted, abusive enforcement actions

Washington, D.C. – Cause of Action Institute (“CoA Institute”) sent a letter to President Trump, imploring him to move quickly to appoint one or more commissioners to fill current vacancies at the Federal Trade Commission (“FTC”). The letter suggests that just one additional commissioner could break deadlock to halt the agency’s pattern and practice of regulatory overreach and rein in recent unconstitutional enforcement actions that harm the economy and the rule of law.

The letter states that although the FTC’s acting chair, Maureen Ohlhausen, “has done a commendable job of addressing the excesses and lawlessness that plagued the agency, the acting chair cannot fully right the ship unless and until you appoint one or more commissioners who share her commitment to advancing economic liberty and believe that responsible businesses should have the freedom to succeed, unfettered by rogue regulators chasing chimerical harms.”

The letter states:

“The acting chair’s ability to promote competition and protect the free market and consumers from overregulation and overreach is hamstrung by the current gridlock on the Commission. Although Congress intended for the Commission to be an independent, bipartisan, five-member administrative body, there are currently only two commissioners: Acting Chair Ohlhausen, a Republican, and Commissioner Terrell McSweeney, a Democrat.

“Because a majority of commissioners must vote to approve most Commission actions, and because only one of the two current commissioners shares the administration’s commitment to cutting bureaucratic red tape to grow the economy, the Commission is hopelessly deadlocked on important policy issues affecting the entire private economy, such as the FTC’s controversial efforts to regulate data security, technology, and privacy for all U.S. businesses citing its authority under Section 5 of the FTC Act to prohibit ‘unfair’ or ‘deceptive’ business practices.”

The letter highlights several controversial “midnight” enforcement actions initiated just before the Trump administration began, that were undertaken in the absence of proven consumer harm. For instance, as the acting chair explained in her dissent from one such “midnight” enforcement action:

“[I]n the Commission’s 2-1 decision to sue Qualcomm, I face an extraordinary situation: an enforcement action based on a flawed legal theory (including a standalone Section 5 count) that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections.”

The letter concludes, “[T]he acting chair should not be the lone (and thus powerless) voice of reason and sound economic policy on the Commission. For these reasons, we respectfully ask that you expeditiously appoint one or more Commissioners to the FTC at your earliest convenience to assist the Acting Chair in furtherance of this Administration’s efforts to reduce regulatory burdens and improve Americans’ liberty to create.”

The letter was signed by John J. Vecchione, president and CEO of CoA Institute. The full letter is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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