CoA Institute Joins Coalition Supporting Transparency and Public Access During Coronavirus Emergency

Today, Cause of Action Institute joined the National Freedom of Information Coalition and 130 other organizations in a statement urging government transparency during the current coronoavirus emergency.

At all times, but most especially during times of national crisis, trust and credibility are the government’s most precious assets. As people are asked to make increasing sacrifices in their daily lives for the greater good of public health, the legitimacy of government decision-making requires a renewed commitment to transparency.

In times of crisis, access to information is vital to protecting public health and the people’s rights. As federal, state, and local governments implement emergency measures, they should make every effort to commit to transparency throughout this process.

Read the 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.  

The report scored IMrecordsmanagement practices of more than two dozen agencies and only four received passing scores: Federal Communications Commission, Council of the Inspectors General on Integrity and Efficiency, Department of Agriculture, and National Aeronautics and Space Administration. Nine agencies received a middling grade of needs improvement and thirteen agencies received a “poor” gradeFourteen agencies did not produce records in response to the investigation and were not graded.  

AFPF Chief Policy Counsel and CoA Institute Executive Director James Valvo issued the following statement: 

Retaining government records in a searchable system is fundamental to transparency, allowing journalists, citizen watchdogs, and the general public to oversee what their government is doingWith the use of instantmessaging platforms in the workplace, it is troubling that only four agencies have acceptable policies to preserve records, as required by the Federal Records ActThis report should serve as a wakeup call for Congress and federal agencies to take decisive action to ensure agencies are complying with federal law. 

Key Findings from the Report: 

  • Thirteen of the sixteen agencies that produced their IM policies do not preserve instant messages as a matter of policy—a violation of federal law and NARA guidance. For example: 
  • The General Services Agency declared in a memo that the instant messaging platform it uses, Google Hangouts, “would not be considered a system of record. Therefore, GSA-IT should set the History feature to off for the GSA.gov domain. 
  • The Department of Labor’s records management program, dated 2017, contains a single sentence regarding IM policy: “NOTE: At this time DOL has determined Instant Messaging will not be used to create records.” 
  • Only three agencies produced records reflecting policies to automatically preserve IMs, a commonly available feature on most instant-messaging platforms. 
  • Of the twenty agencies that produced their policies for employee use of IM, thirteen allow its use but prohibit employees from creating or sending an official record through IM and three ban IM use altogether. Prohibiting IM use to conduct business is unrealistic and contrary to NARA guidance. 
  • Many agencies have not incorporated the 2014 Presidential and Federal Records Act Amendments and subsequent NARA guidance into their records management policies. 
  • Agencies are shirking their responsibility to manage IM records by prohibiting the use of instant messaging or erroneously claiming instant messages are insignificant and do not need be saved. 
  • Only ten of the twenty-five agencies that responded to our FOIA requests could produce records of instant messages. 

Read the full report HERE. 

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Media Contact: briggs@standtogether.org 

About Americans for Prosperity Foundation 

Americans for Prosperity Foundation is a 501(c)(3) nonprofit organization committed to educating and training Americans to be courageous advocates for the ideas, principles, and policies of a free and open society. 

 

About Cause of Action Institute 

Cause of Action Institute is a 501(c)(3) nonprofit, nonpartisan government oversight organization that uses investigative, legal, and communications tools to educate the public on how government accountability, transparency, the rule of law, and principled enforcement of the separation of powers protects liberty and economic opportunity. 

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.

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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.

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USDA Adopts CoA Institute’s Recommendations for Improved FOIA Regulations

The Department of Agriculture finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency last year.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More

NASA Adopts CoA Institute’s Recommendations to Improve Revised FOIA Regulations

The National Aeronautics and Space Administration (“NASA”) finalized a rule last week to implement revised Freedom of Information Act (“FOIA”) regulations.  That final rule incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in May 2019.  CoA Institute’s comment recommended improvements to several aspects of NASA’s proposed regulations that were inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for agency records.  CoA Institute also recommended that NASA add a provision to implement the  “foreseeable harm” standard—a new statutory requirement that CoA Institute has been investigating government-wide.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More

The EPA bypassed public comment on its new FOIA regulations, which raises some important legal questions

The Environmental Protection Agency (“EPA”) has long struggled with the politicization and abuse of its Freedom of Information Act (“FOIA”) processes.  Indeed, as Cause of Action Institute (“CoA Institute”) has repeatedly argued, the agency has a “terrible track record for anti-transparency behavior”—from the weaponization of fee waivers and the use of undisclosed “alias” e-mail accounts, to the failure to preserve text messages and the creation of special “awareness review” procedures for politically sensitive FOIA requests.  Yet the EPA’s rather poor reputation plunged even further in late June 2019, when the agency published an unexpected direct final rule implementing various changes to its FOIA regulations. Learn More