CoA Institute Files FOIA Lawsuit for Internet Browsing Records of OMB’s Mulvaney and USDA’s Perdue

WASHINGTON, D.C. – JUNE 26, 2018– Cause of Action Institute (“CoA Institute”) sued the White House Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) today for failure to disclose records reflecting top officials’ Internet browsing history.  The records at issue—which were the subject of two July 2017 Freedom of Information Act (“FOIA”) requests (here and here)—include the web browsing histories of OMB Director John Mulvaney and USDA Secretary Sonny Perdue, as well as their communications directors, on any government-issued electronic devices.

Cause of Action Institute Counsel Ryan Mulvey said, “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.  Agencies must be held accountable for their refusal to disclose vital information about the operations of the administrative state.  The public has a right to know what websites are being accessed in the course of official agency business.  Not only would such records reveal the sorts of resources that have influenced decision-making, but they also could expose questionable or inappropriate online activity by government employees.”

To date, OMB has failed to respond to CoA Institute’s 2017 FOIA request.  USDA has responded but refuses to release the requested records because it believes they are not under agency “control” and would entail the “creation” of a new record.  CoA Institute disputes both claims.

The operation of an Internet browser typically creates an electronic record of the user’s online activity.  This record is stored locally and is accessible through the browser’s “History” function.  In this case, the requested records were created on government computers, integrated into their file systems, and can be used by agency officials as they see fit, subject to any applicable record retention laws.  This means that such records fall under “agency” control and should be available to the public, particularly given past scandals involving the abuse and misuse of Internet-based programs.

The full complaint, filed in the U.S. District Court for the District of Columbia, can be found here.

For more information, please contact Mary Beth Gombita, mbgcomms@gmail.com.

GAO Report Highlights Agencies Failing to Implement the FOIA

A report released yesterday by the Government Accountability Office (“GAO”) provides alarming details about the dearth of agency efforts to fully implement the Freedom of Information Act (“FOIA”).  GAO previewed a draft of its report in March 2018 when its Director of Information Technology Management Issues, David Powner, testified at a hearing on FOIA compliance before the Senate Committee on the Judiciary.  At the time, GAO published a concurrent report on how federal courts regularly fail to refer cases to the Office of Special Counsel (“OSC”) to determine whether disciplinary action is warranted in instances where officials have acted arbitrarily or capriciously in withholding records.  (Cause of Action Institute’s (“CoA Institute”) commentary on that issue can be found here.)  Yesterday’s report finalizes GAO’s findings and incorporates feedback from the eighteen agencies in the sample subject to the audit.

Many Agencies Have Failed to Update Regulations and Appoint Chief FOIA Officers

One aspect of GAO’s audit involved reviewing whether the eighteen agencies properly implemented various requirements introduced by the FOIA Improvement Act of 2016 and the OPEN Government Act of 2007.  Those amendments to the FOIA require agencies, inter alia, to designate chief FOIA officers, publish timely and comprehensive regulations, and update response letters to indicate things such as an extended, 90-day appeal period.  GAO also evaluated what efforts were underway by the Office of Management and Budget and the Office of Information Policy to develop a government-wide FOIA portal.

The chart above, which is taken from the GAO report, encapsulates some of the unfortunate findings.  Even though it is a statutory requirement, five of the eighteen agencies have not designated a chief FOIA officer in line with applicable requirements (e.g., appointing a senior official at the Assistant Secretary or equivalent level).  Chief FOIA officers are responsible for monitoring agency-wide compliance with the FOIA, making recommendations for improving FOIA processing, assessing the need for regulatory revisions each year, and serving as a liaison with the Department of Justice Office of Information Policy, the Office of Government Information Services, and the Chief FOIA Officers Council.  It remains unclear why some agencies are reticent to comply with this aspect of the FOIA.

Another disturbing finding is that few agencies in the sample timely updated and published regulations to implement the FOIA Improvement Act of 2016.  At least five agencies have deficient regulations—such as the Department of State—or have not bothered to issue a preliminary rulemaking—such as the White House Office of Management and Budget (“OMB”).  Agencies offered several reasons for why they have not complied with the law, with most citing a lengthy internal review process.  The State Department explained that it had just finished updating its regulations before passage of the FOIA Improvement Act.  The U.S. African Development Foundation, however, claimed that it did not even need “to disclose information regarding fees in their regulation” because it “has not charged a fee for unusual circumstances.”

OMB’s failure to satisfy GAO’s criteria for proper FOIA regulations is unsurprising and indicative of a general disregard for regulatory compliance with the FOIA at the agency.  For example, for the past few years, CoA Institute has carefully tracked whether agency FOIA regulations have been updated to include the current statutory definition of a “representative of the news media.”  Prior to the D.C. Circuit’s landmark 2015 decision in Cause of Action v. Federal Trade Commission, many agencies relied on OMB’s Uniform Freedom of Information Fee Schedule and Guidelines to impose an “organized and operated” standard that deprived nascent media groups of preferential fee treatment.  The OMB Guidelines, which were written in 1987, have never been updated, despite requests from the FOIA Advisory Committee and the Archivist of the United States.  CoA Institute thus filed its own petition for rulemaking on the issue in June 2016, followed by a lawsuit last November after OMB failed to respond.

Agencies Have Made Little Progress on FOIA Backlogs

Another aspect of GAO’s audit involved examining whether the eighteen agencies had made any headway in reducing their FOIA request backlog, as well as cataloging the statutes used in conjunction with Exemption 3 to withhold records from the public.  GAO found that few agencies had managed to reduce their outstanding backlog.  One major reason for the lack of progress on reducing backlogs was the failure of most agencies to implement “comprehensive plans” laying any sort of strategy.  As for GAO’s catalogue of statues used to withhold information exempt as a matter of law, the most commonly cited provisions were 8 U.S.C. § 1202(f), which concerns records about the issuance or refusal of a visa, and 26 U.S.C. § 6103, which protects the confidentiality of tax returns and return information.

GAO’s audit is an important indication of how far many agencies must go to comply fully with the FOIA.  This is particularly true insofar as GAO’s findings can be generalized across the entire administrative state.  Congress, the transparency community, and the American public must exert even greater pressure on Executive Branch agencies to meet their obligations under the law and to improve their commitment to open government.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Federal District Court Excuses IRS’s Refusal to Search for Email Records Concerning White House Interference with the FOIA

Last week, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issued an order denying Cause of Action Institute’s (“CoA Institute”) cross-motion for summary judgment in a Freedom of Information Act (“FOIA”) brought against the Internal Revenue Service (“IRS”).  The opinion was long awaited—summary judgment briefing ended over a year-and-an-half ago.  Although we do not intend to appeal the decision, it is worth highlighting some issues with Judge Sullivan’s opinion and the IRS’s arguments.  The case is a fine example of how courts too frequently defer to agencies when it comes to policing their compliance with the FOIA.

Background: “White House equities” review and FOIA politicization

In March 2014, CoA Institute published a report revealing the existence of a non-public memorandum from then-White House Counsel Gregory Craig that directed department and agency general counsels to send to the White House for consultation all records involving “White House equities” when collected in response to any sort of document request.  This secret memo stands in stark contrast to President Obama’s January 2009 directive on transparency, as well as Attorney General Holder’s March 2009 FOIA memo.  Although originally praised as setting the bar for open government, the Washington Post eventually described the Obama Administration as one of the most secretive governments in American history.

As part of the system of politicized FOIA review established under the “White House equities” policy, whenever a requester sought access to records deemed politically sensitive, potentially embarrassing, or otherwise newsworthy, the agency processing the request would forward copies of those records to a White House attorney for pre-production review.  Not only did the entire process represent an abdication of agency responsibility for the administration of the FOIA, but it severely delayed agency compliance with the FOIA’s deadlines.  As we have previously suggested, “White House equities” review likely continues under the Trump Administration.

The specific FOIA request at issue in this case, which was submitted to the IRS in May 2013, sought records of communications between IRS officials and the White House reflecting “White House equities” consultations.  Similar requests were sent to eleven other agencies.  All those agencies produced the requested records; only the IRS failed to locate a single relevant document.  And the IRS only communicated its failure to find any responsive records two years after CoA Institute submitted its request and filed a lawsuit.

Why the IRS failed to conduct an adequate search for records

Our argument for the inadequacy of the IRS’s search for records reflecting “White House equities” consultations focused on several points, but two were especially important.  First, the IRS failed to search its own FOIA office—the most likely custodian of the records and issue.  Second, the IRS improperly refused to search for any responsive email correspondence within the Office of Disclosure.

The IRS inexplicably limited its search efforts to the Office of Legislative Affairs, a sub-component of the Office of Chief Counsel, and the Executive Secretariat Correspondence Office, which handles communications with the IRS Commissioner.  The agency offered no evidence that it sent search memoranda to its FOIA office, which is part of the “Privacy, Governmental Liaison, and Disclosure” or “PGLD.”  In fact, the IRS effectively admitted that it had foregone a search of the Office of Disclosure because a single senior employee testified that he did not believe any responsive records existed.  And because “White House equities” review was not mentioned in the Internal Revenue Manual, the FOIA officer assigned to CoA Institute’s request determined that consultations with the White House would never have taken place.

The IRS also refused to search individual email accounts within the Office of Disclosure because it would be too “burdensome.” Remarkably, the IRS claimed it would “take one IRS IT person at least 13 years” to capture the correspondence of all 165 employees within the Office of Disclosure.  Yet the IRS offered no explanation for why other reasonable options to search email did not exist, such as requiring individual employees to “self-search” email, conducting a preliminary sample search of individuals within the Office of Disclosure most likely to have responsive records, or making use of e-discovery tools like “Clearwell” and “Encase.”

The Court’s Flawed Opinion and Hyper-Deference to the IRS

One major flaw in the Court’s decision concerns its uncritical acceptance of a single IRS attorney’s belief about the existence of responsive records within the Office of Disclosure.  Although the IRS admittedly conducted a keyword search of its tracking system for incoming FOIA requests, it refused to send out search memoranda or engage in other typical search efforts.  The IRS instead relied on the declaration of John Davis, Deputy Associate Director of Disclosure, who claimed that he had never heard of “White House equities” and was unaware of White House consultations ever taking place.  On this basis alone, the IRS concluded it was “unreasonable” to conduct a more vigorous search.  The Court accepted this reliance without any real explanation when it should have given more consideration to the text of the Craig Memo, which was addressed to the entire Executive Branch—including the IRS—and the fact that the eleven co-defendants in the same case all produced responsive records—nearly all of which were email chains.

As for the search of individual email accounts, the Court yet again uncritically deferred to the IRS’s bizarre claim that it would take thirteen years to process CoA Institute’s FOIA request.

In deferring to the IRS, the Court failed to address the IRS’s practice of conducting email searches by manually inspecting the content of individual hard drives, a central reason why an email search would take so preposterously long.  This practice, which requires the IRS to warehouse a lot of old computer equipment, has been repeatedly criticized by the Treasury Inspector General for Tax Administration because it could lead to violations of records management laws.

Additionally, some doubt exists, based on information independently received by CoA Institute from IRS employees, as to the accuracy of the IRS’s claims regarding its ability to conduct an agency- or component-wide search of its email system.  Because FOIA cases rarely make it to trial, it is nearly impossible to pin the IRS down on the accuracy of its claims.  Regardless, the IRS has certainly made a habit of regularly evading its disclosure obligations, a habit buttressed in this instance by an overly deferential judiciary.

Ryan Mulvey is Counsel at Cause of Action Institute

CoA Institute Calls on General Services Administration to Revise Proposed FOIA Regulations

Cause of Action Institute (“CoA Institute”) submitted a comment today to the General Services Administration (“GSA”) concerning the agency’s proposed rule revising its Freedom of Information Act (“FOIA”) regulations.  CoA Institute explained that the planned changes could cause confusion by directing agency staff to interpret the FOIA statute and GSA’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (“OMB”).

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987.  Although the FOIA requires an agency to promulgate its fee schedule in conformity with the OMB Guidelines, they are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities.  Over the past thirty years, OMB has made no effort to revise the Guidelines.  They should not be used as a reference point for the proper administration of the FOIA.

One problematic aspect of the OMB Guidelines is the definition of a “representative of the news media.”  The current statutory definition of this fee category, which was introduced by the OPEN Government Act of 2007, differs from the definition provided by OMB.  Indeed, the OMB definition, which incorporates an “organized and operated” standard, has long been one of the more contentious aspects of the OMB Guidelines.  In 2015, however, the D.C. Circuit issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.

The OMB Guidelines also have been rendered obsolete by other jurisprudential developments.  For this reason, in 2016, the FOIA Advisory Committee and Archivist of the United States called on OMB to update its fee guidance.  CoA Institute filed a petition for rulemaking on the issue, too.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  Our lawsuit is still pending.  Until the OMB Guidelines have been revised to reflect modern circumstances and the actual text of the FOIA, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law.

Ryan Mulvey is Counsel at Cause of Action Institute

Litigation Update: Cause of Action v. Department of Justice and the House Financial Services Committee’s Attempt to Undermine the FOIA

In July 2017, Cause of Action Institute (“CoA Institute”) sued the Department of Justice (“DOJ”) after the agency refused to produce records under the Freedom of Information Act (“FOIA”) that would have revealed whether the Office of Information Policy (“OIP”) or Office of Legislative Affairs (“OLA”) were involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services.  CoA Institute’s FOIA request, which was filed in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

As a result of litigation, DOJ identified sixteen pages of responsive records.  Eleven pages, which represent communications between an “unidentified Executive Branch agency” and DOJ, were withheld in full.  One additional record—an email between the Office of the White House Counsel and OIP—was partially redacted, but an attachment—a copy of Chairman Hensarling’s letter—was withheld in full.  DOJ defended its treatment of these records by invoking the attorney-client and deliberative process privileges.

Last Friday, CoA Institute moved for summary judgment, rebutting DOJ’s claims and arguing that the agency could not use the attorney-client and deliberative process privileges.  With respect to the White House email and attachment, DOJ failed to establish that an attorney-client relationship existed between the White House Counsel and OIP.  Assuming the requisite relationship did exist, the email still neither revealed private confidences nor solicited legal advice.  It also did not reflect a deliberative or consultative process.  Instead, the email was a literal “FYI”—the sort of informational notice that courts regularly compel agencies to disclose:

DOJ also wrongly withheld the email attachment—a copy of Chairman Hensarling’s letter—because the letter is already in the public domain and, in any case, does not reveal confidential information pertaining to the White House or DOJ.

Communications with the “unidentified Executive Branch agency” similarly cannot be exempt under the attorney-client and deliberative process privileges.  Although these records may contain legal advice on responding to Chairman Hensarling’s directive, they were shared outside of the Office of Legal Counsel, which is the DOJ component responsible for providing legal opinions to the White House and the rest of the Executive Branch.  To maintain attorney-client confidentiality, an agency must not circulate privileged material beyond those officials tasked with providing (or receiving) legal counsel.  Here, by involving OLA, which functions as DOJ’s congressional affairs office and does not serve as an “attorney” to other agencies, the “unidentified” agency waived any expectation of confidentiality.  Finally, DOJ misused the deliberative process privilege because it failed to explain how these inter-agency communications reflected DOJ’s recommendations or opinions or were otherwise non-factual.

Importantly, DOJ also failed to meet its burden under the new “foreseeable harm” standard.  Congress introduced this standard with the FOIA Improvement Act of 2016 to codify the so-called “presumption of openness,” which discouraged the mere “technical” application of exemptions.  The FOIA, as amended, now requires an agency, such as DOJ, to explain how specific records can reasonably be foreseen to harm agency interests.  DOJ failed to provide a satisfactory argument in this case and did not even mention its obligations under the new standard.

* * *

The public deserves to know how, and to what extent, DOJ was involved in formulating and implementing Chairman Hensarling’s anti-transparency policy.  Because Congress is not itself subject to the FOIA, a request for records that have been exchanged with the legislative branch presents unique difficulties.  Nevertheless, the law requires that Congress manifest a clear intent to maintain control over specific records to keep them out of reach of public disclosure.  As I have argued previously, 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 this acknowledged standard for defining a “congressional record” would frustrate the FOIA and impede transparent government.

The real-world implications of these sorts of congressional anti-transparency efforts are hardly imaginary or speculative.  The House Financial Services Committee has already intervened in a FOIA lawsuit to enforce its directive.  (That lawsuit is still ongoing.)  And CoA Institute is involved with a lawsuit against the Internal Revenue Service that involves a similarly overbroad effort by the Joint Committee on Taxation to sweep a range of agency records outside the scope of the FOIA.  CoA Institute has twice joined with other good government groups to express concern over these developments (here and here).  We are hopeful that the courts will put a stop to Congress’s games, and ensure public access to vital records revealing the interaction of the administrative state with the federal legislature.

CoA Institute’s brief is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

ICYMI: Lee Steven Appears on The Daily Ledger to Discuss Use of Encrypted Messaging Apps at EPA

 

Last week, Cause of Action Institute Assistant Vice President Lee Steven appeared on The Daily Ledger—a national cable TV political news program airing on the One America News Network. Couched in broader discussion of the “Deep State,” Lee spoke with Graham Ledger, the show’s two-time EMMY Award-winning host, about Environmental Protection Agency (“EPA”) employees’ use of unauthorized communications applications on agency-furnished and taxpayer-funded mobile devices.

Steven’s interview with Ledger comes after Cause of Action Institute’s investigative efforts revealed EPA employees had installed WhatsApp, Signal, and at least sixteen other messaging apps on their work-issued devices. As discussed in the video (and previously written about on this website), EPA employees’ use of encrypted messaging apps is in violation of agency policy and, necessarily, the Federal Records Act as well.

2016-2018 FOIA Advisory Committee Issues Final Report

The 2016-2018 iteration of the federal Freedom of Information Act (FOIA) Advisory Committee, of which I was a member, has just issued its final report and recommendations.  The report takes the form of recommendations to the Archivist of the United States about how to improve the administration of the FOIA.  The Committee is composed of government FOIA staff and representatives from the requester community, and the report represents areas where those professionals’ ideas for improvement overlap.  The Committee also sought to foster dialogue between these two groups who otherwise do not have an opportunity to discuss these issues.

The Committee’s Recommendations

Improving proactive disclosure. The Committee recommends that the Archivist direct OGIS to publish as a best practice that agencies proactively post specific categories of records, including calendars of top agency officials, unclassified reports provided to Congress, FOIA logs, and other categories identified below. The best practice also offers methods to ensure FOIA logs are most useful, and provides considerations for agencies when identifying additional areas for proactive disclosure.

Balancing proactive disclosure and accessibility obligations. The Committee recommends that the Archivist direct OGIS to publish a best practice encouraging agencies to avoid the removal of documents already posted on agency websites that are not currently compliant with Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794d. Instead, the best practice would be to remediate such documents. When agencies are concerned about the practicality of remediation, the best practice would be to conduct an “undue burden” analysis by balancing Section 508 with their FOIA statutory obligations; the Rehabilitation Act allows agencies to release electronic documents that are not Section 508-compliant if rendering them compliant would “impose an undue burden” on the agency.

Improving FOIA Searches. The Committee recommends that the Archivist address the lack of public information about current methods and technologies agencies use to search for responsive records by: (1) requesting that the U.S. Department of Justice’s (DOJ) Office of Information Policy (OIP) affirmatively collect this type of information in next year’s Chief FOIA Officer (CFO) Reports, and (2) recommending that the CFO Council work with the Chief Information Officers (CIO) Council to explore the technological issues related to searches and to promote best practices. The Committee further recommends that the Archivist suggest a modification to the Federal Acquisition Regulation (FAR) to ensure that all agencies consider FOIA obligations when acquiring electronic records management software and that the Archivist also direct OGIS to examine and report on the use of appropriate FOIA performance standards for federal employees.

Making efficient use of agency resources. The Committee recommends that the Archivist direct OGIS to publish as best practices a number of identified strategies to ensure agencies maximize the use of available resources. These best practices address several issues, including staffing, career incentives, workflow, accountability, and technology.

The full report is available here.

James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute.  He was a member of the 2016-2018 FOIA Advisory Committee.  You can follow him on Twitter @JamesValvo.