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.

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Settlement in Federal Trade Commission v. D-Link Systems Includes No Finding of Liability

WASHINGTON D.C. – Today, Cause of Action Institute (CoA Institute) announced the resolution its client, D-Link Systems, Inc., has reached with the Federal Trade Commission (FTC) regarding 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.

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Supreme Court Expands FOIA Exemption 4, Cramping Government Oversight and Marring Text

Washington, D.C. (June 24, 2019) – Cause of Action Institute (CoA Institute) today released the following statement regarding the Supreme Court’s decision in FMI v. Argus Leader, a case considering the scope of Exemption 4 under the Freedom of Information Act (FOIA), which will impact all FOIA requesters including news media, individuals, and government transparency groups:

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Commerce Provides Poor Excuse in First Substantive Answer on Secrecy of 232 Auto Tariff Report

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.

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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.

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CoA Institute Sues 14 Federal Agencies in Ongoing FOIA Investigation

Washington, D.C. (May 23, 2019) – Today, Cause of Action Institute (CoA Institute), a government watchdog organization, filed a lawsuit against 14 federal agencies seeking access to records concerning government-wide implementation of the Freedom of Information Act’s (FOIA) “foreseeable harm” standard. In October 2018, CoA Institute sent FOIA requests to 25 federal agencies as part of an investigation into the Administration’s implementation of this provision. The 14 agencies named in the lawsuit failed to provide timely determinations to the organization’s requests.

Ryan Mulvey, counsel at Cause of Action Institute:

“The failure of these 14 federal agencies to adhere to FOIA’s required timeline for response is unacceptable. For nearly seven months, we have waited for information concerning the agencies’ adherence to FOIA and diligence in implementing important amendments passed by Congress in 2016. The FOIA process is an integral vehicle for government accountability but it is only effective when government meets its statutory obligations. CoA Institute is committed to holding the government accountable and will continue to pursue these important records concerning fair administration of the FOIA.”

Background

The FOIA Improvement Act of 2016 included a “foreseeable harm” provision designed to ensure that federal agencies only withhold requested records when they “reasonably foresee” that disclosure would harm an interest protected by a statutory exemption. This “foreseeable harm” standard builds upon the so-called “presumption of openness,” which was introduced on a discretionary basis by the Obama White House and requires agencies to go beyond mere formulaic justifications for redacting records.

The Department of Justice Office of Information Policy (OIP) is tasked with providing guidance to the rest of the Executive Branch on the proper administration of the FOIA. After it failed to publish any government-wide directives on the proper interpretation and implementation of the “foreseeable harm” standard, CoA Institute opened an investigation into the administration of the FOIA and the “foreseeable harm” standard of 25 federal agencies. Fourteen of those agencies failed to issue a final determination in response to the requests within the statutorily required period, thus prompting CoA Institute to file a lawsuit to ensure the production of agency records.

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

Techdirt Sues ICE for Records Relating to Seizures of Website Domains

Washington, D.C. (May 23, 2019) – Cause of Action Institute (CoA Institute) today, on behalf of Floor64 and Techdirt, a media outlet that reports on technology, filed a complaint against U.S. Immigration and Customs Enforcement (ICE) seeking records responsive to a FOIA request regarding ICE’s “Operation In Our Sites.” The government failed to provide any responsive records to Techdirt’s FOIA request – leaving them with no recourse but to sue the government.

Techdirt requested information about “Operation In Our Sites,” after the agency issued a press release touting its efforts to work with “high-profile industry representatives and anti-counterfeiting associations” to seize 1 million website domains. There are general concerns the sites, while allegedly offered counterfeit or copyrighted material, were seized without due process, and that federal law enforcement agents relied on industry representatives to identify the alleged website domains – raising the concern of actual or the appearance of cronyism.

James Valvo, counsel and senior policy advisor at CoA Institute, issued the following statement:

“This lawsuit and its underlying issues are why transparency and FOIA are so important. One million website domains were seized in partnership with corporate industry representatives, and the public deserves to know which sites were seized, the process by which they were taken to ensure due process, and the level of involvement corporate interests had on targeting sites to ensure the process was free of cronyism. These answers could be cleared up quickly if the government had responded properly to our client’s FOIA and produced responsive records.”

Techdirt is a news site, operated by Michael Masnick and Floor64, that relies on a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology, and legal issues that affect companies’ ability to innovate and grow.

Michael Masnick, founder of Floor64 and editor of Techdirt, issued the following statement:

“At Techdirt, we’ve been following ICE’s questionable website seizures, based solely on input from a few corporations, for years — including the fact that it has had to quietly return many of the domains it improperly seized. It is quite worrisome that after those past mistakes, ICE has now chosen to completely hide the ball and ignore lawful FOIA requests to avoid scrutiny of its process for censoring websites.”

Background

In November 2018, ICE issued a press release touting its enforcement efforts in “Operation In Our Sites,” a global operation aiming to combat copyright-infringement, announcing the seizure of more than one million website domains through “combined efforts of law-enforcement agencies across the world, high-profile industry representatives and anti-counterfeiting associations.”

In response, Mr. Masnick of Techdirt submitted a FOIA request to the agency seeking access to the information ICE advertised in their release: a list of the domains seized, court filings relating to the seized domains, and email communications with the high-profile industry representatives and anti-counterfeiting associations mentioned.

ICE issued a determination in February 2019, stating that it had found no responsive records to Techdirt’s request. After a successful appeal, the FOIA request was remanded to the ICE FOIA Office, but the agency has failed to produce responsive records.

Complaint, Floor64 v. U.S. Immigration and Customs Enforcement

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018