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

Cause of Action Institute Secures Rare Preservation Order in Fight to Obtain DOJ Records Created on Personal Email Account

Government official caught using personal email to conduct official business ordered to maintain copies of all records in Gmail account

Washington, D.C. (April 26, 2019) – Cause of Action Institute (CoA Institute), a nonpartisan government watchdog organization, today announced it had secured a rare federal court order requiring a former U.S. Department of Justice (DOJ) employee to preserve the contents of her personal email account, which had been used to conduct official agency business. Those records may be subject to later release.

Ryan Mulvey, counsel for CoA Institute, issued the following statement:

“Government transparency is a fundamental necessity in a free and open society. The use of personal devices to conduct official business remains a serious concern, resulting in records being lost, unsecured, or improperly destroyed. In some cases, personal email accounts are used to avoid disclosure altogether. This court order is an important reminder to all government employees to avoid using personal email and devices and adhere to all relevant agency rules and government transparency statutes. It also is a warning to agencies to ensure that they meet their record-keeping obligations.”

U.S. District Court Judge Amit Mehta granted Cause of Action’s motion, ordering the U.S. Department of Justice to require a former employee, Sarah Isgur Flores, not to delete any emails stored in her personal Gmail account, and to store copies of the account’s contents onto a thumb drive or other storage device, including all emails in archived or deleted folders. The Court also ordered Ms. Flores to maintain the emails until further instructed, and gave the U.S. Department of Justice until May 2, 2019 to provide notice of its compliance with the preservation order. Although the issuance of such a preservation order is rather rare, it is the latest example in a developing trend. Federal courts have become increasingly concerned about the use of personal email to conduct agency business, and they are taking serious the possible loss or destruction of government records that may be subject to the Freedom of Information Act (FOIA) and other federal records management statutes, including the Federal Records Act.

Background

In 2017, media reports indicated that Sarah Isgur Flores, then-spokeswoman for Attorney General Jeff Sessions, used her personal email to issue official statements on behalf of the government. Due to concerns that this sort of behavior could harm the public’s access to official records, and in light of past instances of personal email having been used as a way to conceal public information, Cause of Action Institute filed a FOIA request for Ms. Flores official work-related emails sent or received through her personal devices or accounts. After waiting more than 18 months for a response, CoA Institute sued DOJ to force the disclosure of the Flores records.

On September 27, 2018, DOJ responded, “As is evident from the enclosed records, Ms. Flores forwarded emails sent to her personal account to her official Department of Justice email account, including through an automatic forward. As such, all of these emails were located pursuant to our search of Ms. Flores’ official Department of Justice email account.”

However, within the 112 pages produced by DOJ, the original email issued by Ms. Flores, as reported by members of the press, was missing. Despite raising this issue with DOJ, the government insisted the 112 pages were a full-and-complete record. As a result, and after learning of Ms. Flores’s departure from public service, CoA Institute filed a motion, urging the court to compel DOJ and Ms. Flores to preserve all relevant records.

Late on Thursday, April 25, the Court granted CoA Institute’s motion in full, compelling the government to coordinate with Ms. Flores to preserve her personal email account and maintain copies pending further court proceedings.

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CoA Institutes’s Motion for Preservation Order

Federal Court’s Order for Preservation of Records 

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CoA Institute Discovers Curious DHS FOIA Notification Process for Employee Records

Earlier today, Cause of Action Institute (CoA Institute) received a misdirected email from the Department of Homeland Security (DHS) that apparently was intended to serve as a notification to an unidentified agency employee that certain personnel records were to be released under the Freedom of Information Act (FOIA).

The “awareness” email indicated that employee-related records were scheduled to be released in response to a FOIA request.  It also identified the name of the FOIA requester—a CoA Institute employee—and included an attached file containing the records at issue.  The email was issued “[i]n accordance with DHS Instruction 262-11-001,” which is publicly available on the DHS’s website and appears to have been first issued at the end of February 2018.

Under Instruction 262-11-001, the DHS is required to “inform current [agency] employees when their employment records . . . are about to be released under the FOIA.”  “Employment records” is defined broadly to include any “[p]ast and present personnel information,” and could include any record containing personal information (e.g., name, position title, salary rates, etc.).  Copies of records also are provided as a courtesy to the employee.

The DHS instruction does not attempt to broaden the scope of Exemption 6, and it recognizes that federal employees generally have no expectation of privacy in their personnel records.  More importantly, the policy prohibits employees from interjecting themselves into the FOIA process.  This sort of inappropriate involvement has occurred at DHS and other agencies in the past under the guise of “sensitive review,” particularly whenever politically sensitive records have been at issue.

Nevertheless, the DHS “awareness” policy still raises good government concerns.  As set forth in the sample notices appended to the instruction, agency employees are routinely provided copies of responsive records scheduled for release, as well as the names and institutional affiliations of the requesters who will be receiving those records.

To be sure, FOIA requesters typically have no expectation of privacy in their identities, and FOIA requests themselves are public records subject to disclosure.  There are some exceptions.  The D.C. Circuit recently accepted the Internal Revenue Service’s argument that requester names and affiliations could be withheld under Exemption 3, in conjunction with I.R.C. § 6103.  Other agencies, which post FOIA logs online, only release tracking numbers or the subjects of requests.  In those cases, a formal FOIA request is required to obtain personally identifying information.

Regardless of whether the DHS policy is lawful, it is questionable as a matter of best practice.  Proactively sending records and requester information to agency employees could open the door to abuse and retaliation, particularly if an employee works in an influential position or if a requester is a member of the news media.  The broad definition of “employee record” also raises questions about the breadth of implementation.

Finally, there are issues of fairness and efficiency.  If an agency employee knows that his records are going to be released, is it fair to proactively disclose details about the requester immediately and without requiring the employee to file his own FOIA request and wait in line like anyone else?  The public often waits months for the information being given to employees as a matter of course, even though the agency admits that there are no cognizable employee privacy interests at stake.

More importantly, an agency-wide process of identifying employees whose equities are implicated in records and individually notifying them about the release of their personal details likely requires a significant investment of agency resources.  Would it not be more responsible to spend those resources on improving transparency to the public at large?  To reducing agency FOIA backlogs?  Notifying employees whenever their information is released to the public is likely only to contribute to a culture of secrecy and a further breakdown in the trust between the administrative state and the public.

Ryan P. Mulvey is Counsel at Cause of Action Institute

2018.02.20 DHS Instruction 262-11-001

2018.12.20 DHS Notification Email