close X

Search Results for: IRS

SEC Adopts CoA Institute’s Recommendations in Updated FOIA Regulations

June 28, 2018 by

The Securities and Exchange Commission (“SEC”) finalized new Freedom of Information Act (“FOIA”) regulations today, adopting two revisions from a comment that Cause of Action Institute (“CoA Institute”) proposed in January 2018.  The FOIA allows for the disclosure of records of federal agencies, including documents, emails, and reports, and is an essential tool for promoting government transparency.

CoA Institute made three recommendations in response to the SEC’s proposed rulemaking.  First, we urged the agency to remove outdated “organized and operated” language from its definition of “representative of the news media.”  Such language has been used in the past to deny FOIA fee waivers to organizations like CoA Institute that investigate agency waste, fraudulent activity, cronyism, and wrongdoing.  In 2015, we argued Cause of Action v. Federal Trade Commission before the D.C. Circuit, which resulted in a landmark ruling that invalidated the “organized and operated” requirement.

In Cause of Action, the D.C. Circuit clarified proper fee category definitions and the application of fees for FOIA requests.  CoA Institute cited this case in its comment to the SEC and the agency concurred with our proposal to remove the outdated “organized and operated” language from its definition of a news media requester.  The FTC also acknowledged the D.C. Circuit’s landmark decision in its final rule.

Second, CoA Institute recommended eliminating “case-by-case” fee category determinations.  Under the original rule proposed by the SEC, FOIA offices would “determine whether to grant a requester news media status on a case-by-case basis based upon the requester’s intended use of the requested material.”  CoA Institute again cited Cause of Action to argue that the focus of the fee waiver inquiry should be on “requesters, rather than [their] requests.”  The SEC agreed and removed the restrictive language.

Finally, CoA Institute recommended that the SEC recognize that a news media requester may use “editorial skills” to turn “raw materials into a distinct work” when writing documents such as press releases and editorial comments.  This understanding broadens the potential pool of news media requesters and our recommendation tracks language from the D.C. Circuit’s decision in Cause of Action.  Although, in this respect, we did not recommend any specific changes to the final rule the SEC nevertheless acknowledged our comments by stating that it “will consider Cause of Action and any other relevant precedents in applying the fee provisions in its regulations.”

Americans have an interest in living free and prosperous lives without the interference of arbitrary and abusive executive power.  One of the ways CoA Institute monitors government overreach is by fighting for access to information on the federal government’s activities.  Our successful comment is a small but important victory in our work to ensure a transparent government that works for the benefit of all Americans.

Chris Klein is a Research Fellow at Cause of Action Institute

Filed Under: Media, Blog Tagged With: , , , ,

Department of Labor Denies FOIA Appeal After Nearly Four Years, and Unilaterally Narrows the Scope of the Request, Despite OGIS Intervention

June 22, 2018 by

The Department of Labor (“DOL”) recently denied CoA Institute’s long-pending Freedom of Information Act (“FOIA”) appeal concerning records of consultations between DOL and the Office of the White House Counsel (“OWHC”) on any documents containing “White House equities.”  CoA Institute filed its request on November 26, 2013 and its appeal on September 25, 2014.  After attempting to contact a responsible DOL official on over fifteen occasions, either through email or by voice message, CoA Institute finally asked the Office of Government Information Services (“OGIS”) to intervene in October 2017.  Despite DOL’s promise to try to issue a determination this past March, its appeal decision only arrived last week—forty-five months after CoA Institute’s appeal was submitted and long past the applicable FOIA deadlines.

“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 stood 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.

DOL’s deficient processing of CoA Institute’s FOIA request

In this case, CoA Institute’s request sought all records reflecting “White House equities” consultations.  DOL released fifty-seven (57) pages of records with various pieces of information withheld under Exemptions 5 and 6, mostly personally identifying information—such as the names of lower-level DOL employees—or substantive portions of the agency’s conversations with White House attorneys.  Interestingly, DOL never indicated which privileges it sought to apply with Exemption 5.  (CoA Institute argued against the application of the attorney-client, attorney work product, and deliberative process privileges in its appeal.)

Most egregiously, DOL unilaterally limited the scope of its search to include only records reflecting White House review of FOIA requests, rather than the wide range of record requests covered by the Craig Memo:

DOL based its narrowing on stray language in CoA Institute’s request for a public interest fee waiver.  But there is no authority to support an agency limiting the subject-matter scope of a FOIA request based on a fee waiver argument.  A fee waiver request should only impact a requester’s obligations to pay any applicable fees.

DOL’s incorrect appeal decision . . . overdue by over three-and-an-half years

DOL’s appeal determination is troubling.  The agency again chose to ignore the plain language of the Craig Memo, which was cited by CoA Institute and establishes the clear scope of “White House equities” review.  Once more, DOL relied on CoA Institute’s fee waiver request.  But that language simply cannot justify limiting a search to White House consultations on “FOIA requests.”  As some type of consolation, DOL suggested that CoA Institute submit a new request.

After admitting that it had applied the deliberative process privilege, DOL summarily upheld its use of Exemption 5, describing the White House’s pre-production clearance of agency records to be part of DOL’s deliberative processes.  DOL also refused to release the names of the lower-level employees who were involved in “White House equities” consultations, arguing that there was no public interest in the disclosure of their identities.

Concluding thoughts on OGIS and its lack of enforcement power

Congress created OGIS to help mediate disputes between requesters and agencies.  OGIS is meant to provide an alternative to litigation.  Yet OGIS lacks any sort of enforcement authority, and it can only intervene if an agency and the requester voluntarily submit to the mediation process.  Thus, even if OGIS “resolves” a dispute, it has no power to hold the parties to their agreement.  Agencies suffer no consequences for disregarding the outcome of OGIS mediation.  This is a tremendous flaw in how OGIS is designed.

As this email chain demonstrates, CoA Institute asked OGIS to intervene in October 2017; OGIS closed its case in February 2018, following DOL’s commitment to trying to finish its adjudication of CoA Institute’s appeal by March 26, 2018.  That date came and went.

This is not the first time OGIS mediation has proven ineffectual and an agency has refused to honor the promises it made as part of the dispute resolution process.  CoA Institute is currently litigating another FOIA suit against the Department of Treasury over records reflecting the “sensitive review” process, which subjects certain FOIA requesters—such as representatives of the news media—to extra scrutiny.  Treasury and CoA Institute agreed to a series of scheduled interim productions; Treasury missed every one of those deadlines, and it only began to release records once CoA Institute filed a lawsuit.  This is an unacceptable practice, and Congress should look to reform the OGIS process.

Ryan Mulvey is Counsel at Cause of Action Institute

Filed Under: Media, Blog Tagged With: , , , , , ,

The VA’s Acting Secretary Claimed He Has Authority Over the Agency’s Independent Watchdog. He’s Wrong.

June 21, 2018 by

Department of Veterans Affairs (VA) acting secretary Peter O’Rourke incorrectly claimed authority over the VA Inspector General (IG) in a letter sent to the IG on June 11 and published by Stars and Stripes on June 20.  In the letter, O’Rourke wrote to VA IG Michael Missal:

“You also appear to misunderstand the independent nature of your role and operate as a completely unfettered, autonomous agency. You are reminded that OIG is loosely tethered to VA, and in your specific case as the VA Inspector General, I am your immediate supervisor. You are directed to act accordingly.”

The letter from O’Rourke was in response to IG Missal’s concerns outlined in a June 5 letter to the VA that claimed the agency was withholding information from the IG, including information about whistleblower complaints. By trying to strongarm the IG, not only is O’Rourke blatantly mistaken in his interpretation of federal law, but his threatening language in the letter is deeply troubling. While the relevant law, the Inspector General Act of 1978, does put IGs under “general supervision” of agency heads, it makes clear that they have their own independent authority:

“Establishment IGs [IG Act, § 3(a)]: The Act specifies that each IG ‘shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment.’ Except under narrow circumstances discussed below, even the head of the establishment may not prevent or prohibit the IG from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.” (Emphasis added)

The Council of the Inspectors General on Integrity and Efficiency (CIGIE) explains that “[w]hile by law, IG’s are under the general supervision of the agency head or deputy, neither the agency head nor the deputy can prevent or prohibit an IG from conducting an audit or investigation. The VA’s own Functional Organization Manual states that the VA IG is “an independent oversight entity” that “[h]as authority to inquire into all VA programs and activities.”

Simply put, an IG is an independent entity that operates separately from the oversight of any official within the agency it oversees. The independent authority of the IG ensures that investigators can conduct their work without fear of reprisal.

Cause of Action Institute has often written about the issues of having watchdogs without permanent leadership, but an uncooperative agency is a similar, if not greater, problem for accountability and oversight. The VA’s acting secretary should stop claiming authority he does not have and should not try to hinder accountability at a federal agency that desperately needs it.

Ethan Yang is a Research Fellow at Cause of Action Institute.

Filed Under: Blog, Media Tagged With: , , , , ,

What Happens When Government Emails are Allegedly “Fatally Lost”?

May 31, 2018 by

President Trump’s phone and email behavior are coming under scrutiny for security reasons, but regardless of the device used, the type of email account being used could be a bigger concern.  Did you know that a government official’s use of private email to conduct government business is wrong?  If the Hillary Clinton email scandal didn’t showcase that, consider one of our recent and ongoing investigations into former Secretary of State Colin Powell’s work-related email records, which were hosted on a personal AOL account.

In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Powell’s work-related email.  In October 2016, Cause of Action Institute sought access to Secretary Powell’s work-related emails under the Freedom of Information Act (“FOIA”).  At the same time, we advised the Secretary of State and the Archivist of the United States of their obligations under the Federal Records Act (“FRA”) to recover those same email records.  Once it became apparent that the State Department would not respond to our FOIA request, and the obligation to initiate action through the Attorney General for the recovery of Secretary Powell’s work-related email would not be met, we filed suit in federal district court.  In January 2018, when the court denied the government’s first motion to dismiss, it described the State Department’s efforts at recovery as “anemic.”  As we’ve noted, U.S. District Court Judge Trevor McFadden explained that “[t]he Defendants’ refusal to turn to the law enforcement authority of the Attorney General is particularly striking in the context of a statute with explicitly mandatory language.”  “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”

After being repeatedly asked by the National Archives and Records Administration (“NARA”) to contact AOL directly for Powell’s emails, the State Department never did so until CoA Institute filed its lawsuit.  But the State Department continues to use the line that the emails have been “fatally lost” and that our lawsuit should therefore be dismissed.  The Defendants argue that, even if they cannot prove fatal loss or completely recover unlawfully removed records, their obligation to initiate action through the Attorney General (and thus marshal the law enforcement authority of the federal government) can be excused if they have no “reason to believe” records are recoverable.

We’re currently pushing back on that argument, as it rests on a fundamental misapprehension of the FRA.  We have asked the court to order the Secretary of State and the U.S. Archivist to initiate action through the Attorney General for the recovery of Powell’s email, as required by law.  This would entail enlisting the law enforcement authority of the federal government to investigate the possibility of forensically recovering the records at issue, among other things.  Such techniques have been successful in previous cases of unlawfully removed federal records, as evidenced by Hillary Clinton’s email scandal and the FBI’s recovery of Peter Strzok and Lisa Page’s text messages.

The problem with the Defendants’ position is that it ignores the clear text of the FRA and thirty years of precedent, which recognizes a non-discretionary obligation for an agency head to go to the Attorney General whenever its own recovery efforts have failed.  In this last line of their closing brief, the Defendants sum up their argument: “We recognize that the Court has previously rejected the contention that the FRA requires referral only when an agency has reason to believe that records can be recovered but respectfully reserve the right to seek further review should the Solicitor General determine that such review is warranted.”

This case illustrates how careless the federal government can be with the protection of government work – the use of a personal account and the subsequent years-long legal battle to recover Secretary Powell’s work-related emails are a failure of our government to follow both the FRA and the FOIA.  Secretary Powell should never have used a personal email account, and the State Department should have acted quicker to recover and preserve vital records of government business that were stored on a third-party commercial server.  If it is this difficult to recover materials that ultimately belong to the American people, the work of the government becomes more and more opaque and the gap between the American people’s knowledge and the federal government’s behavior only widens.

Mary Beth Gombita, Cause of Action Institute.

Filed Under: Media, Blog Tagged With: , , , , , , , ,

Senate finally confirms President Trump’s nominee for Intelligence Community watchdog

May 21, 2018 by

Last week, the Senate finally approved the nomination of former Department of Justice attorney Michael Atkinson to be Inspector General of the Intelligence Community.  We commended President Trump on his decision to name Mr. Atkinson as a watchdog back in November 2017.  According to one source, part of the long delay in the confirmation process was due to Senate negotiations with the Director of National Intelligence over the firing of Dan Meyer, the Intelligence Community’s whistleblower ombudsman.  Yet it is still a sad reflection of the current political climate that Mr. Atkinson’s nomination was pending for roughly six months.

As I have argued previously, one of the most troubling aspects of President Obama’s legacy was his failure to nominate permanent Inspectors General (“IGs”) at many agencies across the federal government.  Without presidentially-appointed, Senate-confirmed leadership, there is always a real danger that IG offices will lack the necessary commitment to transparency and accountability in government.  Indeed, Senator Ron Johnson has argued that “acting” IGs—who are typically career civil servants—risk being “not truly independent [because] they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”

When President Obama left office, twelve agencies lacked an IG.  During his first year in office, President Trump steadily moved to remedy this dearth of leadership, but the pace of new nominations slowed at the end of last year, and much more now needs to be done.  According to the Project on Government Oversight, which has been tracking IG vacancies since the Obama Administration, there are currently nine agencies without a permanent watchdog, six of which must be appointed by the White House.  This includes vacancies at major Cabinet-level agencies, including the Department of Defense, the Department of Energy, and the Department of Housing and Urban Development.  The Department of the Interior, sadly, continues to lack a permanent IG since the previous watchdog left office 3,374 days ago.

Of course, not all the blame should be placed on the inaction or slow decision-making of President Trump.  Aside from Mr. Atkinson’s recent confirmation, another four presidential nominations have been pending in the Senate for an average of 236 days.  When the White House has moved to fill these watchdog vacancies, the Senate should prioritize its consideration and the confirmation process.  Many Executive Branch agencies have substantial budgets, and presidentially-appointed IGs provide a vital internal check on waste, fraud, and abuse.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

Filed Under: Blog Tagged With: , , , ,

Federal Court Upholds Cigar Labeling Requirements — Why and What This Means

May 18, 2018 by

Cause of Action Institute (“CoA Institute”) has been active as an amicus curiae (friend of the court) in an ongoing federal lawsuit regarding cigars and other tobacco products.  Meaning, while we don’t represent any of the parties, we have been submitting briefs to help the Court reach its final decision. The Food and Drug Administration (“FDA”) originally proposed a burdensome tobacco-safety regulation that would have effectively crippled the premium cigar market, putting countless American small businesses out on the street.  After the 2016 election, however, new FDA leadership delayed that rule with the intent to change it. This was a wonderful development for both cigar companies and hobbyists alike. However, the FDA kept pushing a scaled-back rule that would require large, intrusive warning labels on premium cigar products.  We submitted a brief opposing that rule.

CoA Institute did not take a position on the efficacy or utility of tobacco warning labels.  Our concern was, as it frequently is, that agencies must show their work when they enact a new regulation.  The governing statute here, the Family Smoking Prevention and Tobacco Control Act (“FTA”), required the FDA to show that any new regulations would be appropriate for the protection of the public health.  Plaintiffs, as well as CoA Institute, argued that the FDA had not done its work and, indeed, had conceded it had no real quantitative data or analysis for the efficacy of these new warning labels for cigar products.  Regulatory action for the sake of regulatory action is bad policy.

Unfortunately, the Judge disagreed, finding that the FDA had done its due diligence in determining that the warning labels would be effective.  He held that the FDA’s statements connecting the labels to public health, as well as their citation of certain data, such as the overall addictiveness of nicotine, was enough.  Furthermore, he found that the agency’s concession that it had no data available was merely an admission of the “agency’s inability to quantify the benefits of the Deeming Rule’s requirements prior to their implementation date.”  He held that a mere connection, quantifiable or not, between smoking prevention and the larger warning labels is enough.  He cited the agency’s prior work with other tobacco products, singling out cigarettes, as the foundation for the FDA’s contention that the new health warnings were appropriate and would affect cigar and pipe tobacco usage.

As any cigar aficionado knows, cigars and cigarettes are distinct products.  I regularly enjoy cigars, but I never touch cigarettes.  Why?  Because, in my opinion, the health risks are profoundly different for the two products.  More importantly, the addictive nature of the two is incomparable.  I regularly smoke cigars during the summer—which, for me, is 1-3 a week—and completely stop for the long winter months with no undesired effects or feelings of withdrawal.  That, to put it lightly, is not the usual experience with cigarettes.  Aficionados know: these are two different worlds.

Some might criticize me for relying on personal anecdotes to argue a federal regulation is unfounded.  I agree!  And that’s why the FDA should have conducted quantitative studies specific to premium cigars, rather than just relying on general science on nicotine addiction and the agency’s experience with a totally different product, cigarettes.  I suspect this is why Congress included language in the statute mandating that a “finding as to whether such regulation would be appropriate for the protection of the public health shall be determined[.]”  Of course, we live in the era of Chevron deference, where the Supreme Court has instructed the lower courts to defer to an agency’s interpretation of a statute and, sometimes by extension, the agency’s own science (or lack thereof).  Accordingly, the agency’s own statements in support of the rule were given enormous deference by the Court.

The Plaintiffs in the case argued that it was ridiculous for the FDA to claim to not have access to quantitative data, since they’ve had “sixteen years and an entire nation’s worth of data to examine the efficacy of the [prior-implemented] FTC warnings.”  After all, most of the cigars produced and sold in the United States are subject to an FTC consent decree that requires these companies to put warning labels on their products.  The FDA could have studied the efficacy of the FTC warnings on cigar use, but failed to do so.  In rejecting this argument, the Judge made an interesting comment: “Plaintiffs, however, have identified no requirement, statutory or otherwise, that compelled the FDA to undertake such studies to make the findings required by [the statute].”  CoA Institute, as amici, did just that though.  We contended that Chamber of Commerce of the United States v. Securities & Exchange Commission, which applied to similar statutory language in the financial sector, was controlling here.  The SEC made basically the same claim the FDA did, arguing “it was without a reliable basis” to determine costs associated with a regulation.  In Chamber, the D.C. Circuit recognized that limitations on data cannot “exclude the Commission from its statutory obligation to determine as best it can the economic implications of the rule it has proposed.” In its decision upholding the labeling rule, the District Court did not cite Chamber.

If this case were to be appealed—and, again, CoA Institute was just amici and did not represent any of the parties—we believe the D.C. Circuit would be faced with two interesting questions.  First, is the statutory language enforced by the Court in Chamber similar enough to the FTA that the case controls here?  And second, if Chamber does apply, can the FDA comply by simply reaching back and pointing to data based on cigarettes and other general science on tobacco?  We, of course, would argue no, given the distinct differences between premium cigars and cigarettes.

What does this all mean for cigar smokers?  Probably not that much, at least for now.  The original rule would have rocked the market, cutting off competition, reducing quality, and increasing prices exponentially.  The new, cutback rule might result in some increase in price, given the labeling costs cigar companies will now need to endure, but the same quality and quantity of cigars should be available for purchase.

But here’s the important point: there’s nothing preventing a future administration from bringing back the original rule.  And, given the Judge’s opinion in this case, the FDA would not have to reach a high bar to “deem” and regulate cigars the same way it does cigarettes.  This could be a death knell for the pastime.  The Courts and Congress must act to hold agencies accountable to good science and, most importantly, to doing their job.

*There were many other strong arguments made by the Plaintiffs, including Administrative Procedure Act and constitutional claims.  These were similarly rejected by the Court. For this blog post, I concentrated only on the arguments CoA Institute highlighted in our amicus brief.  The Court did vacate one part of the rule, which defined retailers who blend pipe tobacco in their stores as “manufacturers,” asking the agency to justify its reasoning.*

Filed Under: Media, Blog Tagged With: , , ,

New Records Reveal the FAA Has Been Tracking FOIA Media Requesters

May 16, 2018 by

The Freedom of Information Act (“FOIA”) was introduced to ensure public access to records of the Executive Branch.  Unfortunately, agency FOIA processes have long suffered from politicization at the hands of bureaucrats and political appointees who hope to frustrate the disclosure of embarrassing or newsworthy documents.  A recent report about enhanced “vetting” of FOIA requests at the Environmental Protection Agency (“EPA”), for example, demonstrates the tenacity of those who govern—regardless of their political affiliation—to keep secrets from the concerned public.  Similarly, earlier this year, Cause of Action Institute (“CoA Institute”) revealed how the National Oceanic and Atmospheric Administration expanded its “sensitive review” procedures by putting records requests from attorneys, and requests concerning the Trump Administration’s transition period, into special processing categories.  Now, newly disclosed records from the Federal Aviation Administration (“FAA”) demonstrate how that agency has made concerted efforts to keep tabs on news media requesters.

The FAA’s FOIA “Media Reports”

“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records at issue are politically damaging, embarrassing, or otherwise newsworthy.  Politicization can come in different forms.  Sometimes sensitive review entails an agency’s public affairs team or communications specialists being kept informed of new requests or outgoing productions of records.  In other instances, it involves political appointees supervising searches or making redaction decisions.  In all cases, sensitive review delays, and sometimes prevents, the disclosure of records that the public has a right to view.

According to records obtained by former CoA Institute attorney Allan Blutstein, the FAA’s sensitive review process includes a “tracking system” for requests submitted by representatives of the news media.  News media requesters automatically receive a fee reduction under the FOIA and presumptively satisfy some of the requirements for expedited processing. This preferential treatment is meant to recognize the vital role of the media in a participatory democracy.  The intentional targeting of media requesters within a framework for sensitive review, therefore, is especially concerning.

The following screenshot from one of the FAA’s “Media Request” charts shows just how the agency tracks pending requests.  Each line includes a description of the records at issue and each request’s processing “status,” such as whether a search has been conducted or responsive records are under review.

Although approximately half of the requests recorded in the FAA chart (100 of 184) were submitted during the Trump Administration, the remainder date from as early as April 2009.  Not only does this reveal an unacceptable backlog at the FAA, but it suggests that the practice of targeting media requesters for special scrutiny or “tracking” may have originated with the Obama White House.  CoA Institute warned in early 2014 that FOIA processes across the government were being clogged up by political intervention because of news media requesters seeking the disclosure of records about embarrassing scandals.  It appears that the FAA’s current practice reflects the politicization that was covertly emphasized by the Obama Administration.

(A complete copy of the FAA tracking chart is available here.  FOIA requests highlighted in blue have not yet been assigned to a FOIA officer, while requests in yellow are, in most cases, pending legal, business or supervisor review.  An agency-created summary of the highlighted FOIA cases is available here.)

As a representative of the news media, CoA Institute itself was subject to the FAA’s tracking regime.  Three of our pending requests, dating from early 2012 and 2013, were flagged.  One of those three requests has not even been assigned to a disclosure officer for processing, despite the fact that it was submitted to the FAA almost five years ago.

The version of the FAA’s “Media Request” tracking table obtained by CoA Institute, which is dated April 26, 2018, was circulated amongst several officials within the FAA’s Office of Communications (“AOC”) and the Department of Transportation’s Office of the Secretary (“OST”).  The cover email also includes a batch of incoming record requests.  All of this suggests that a key group at the FAA is responsible for managing the sensitive review process and keeping key officials within the Administration knowledgeable about ongoing FOIA affairs.

A complete copy of this email is available here.  To the extent we have been able to identify the individuals involved, we believe they hold the following positions within the FAA’s FOIA Office, Office of Communications, or the Office of the Secretary of Transportation:

  • Kimberly McCormick – FOIA Management Specialist
  • Kathy Ray – Departmental FOIA Officer, Department of Transportation
  • Laura Brown – Deputy Assistant Administrator for Public Affairs
  • Gary Kolb – Chief of Staff, Communications Division
  • Greg Martin – Assistant Administrator for Communications
  • Elisabeth Smeda – Senior Advisor to the Acting Administrator
  • Collen Donovan – Senior Advisor to the Deputy Administrator
  • Carlos Alfaro – Director, Information and Technology
  • Geraldine Gour – Manager, Administrative Services for the Aircraft Certification Service
  • Duke Taylor – Manager, FOIA Program
  • Louis Fuss – Senior FOIA Management Specialist
  • Laurie Karnay – FOIA Management Specialist
  • Susan McLean – FOIA Management Specialist
  • Delphine Ndi – FOIA Analyst

A collection of the incoming FOIA requests attached to the email is available here.  Those requests were submitted by various reporters from Mother Jones, ABC, NBC, Fox10 News of Mobile, various local newspapers, and ProPublica.

The Problem of FOIA Politicization

Unfortunately, there is nothing unlawful about an agency keeping separate “tracking” notes on FOIA requests submitted by members of the media.  Nor is there anything unlawful in an agency keeping its communications officials, or even other parts of the Executive Branch, aware of incoming requests or outgoing records that could elicit media coverage or public inquiries.  But the sort of intentional tracking and obvious backlog that has become standard procedure at the FAA is unacceptable and clearly violates the spirit of the FOIA.  The fact that requests from the beginning of 2009 are still pending is inexcusable.  The real danger of politicization at the FAA should be self-evident.  When an agency is committed to treating media requesters in a special way, the tendency will always be to delay and obstruct disclosure, thus impairing FOIA rights and inhibiting the proper functioning of a critical media.

Ever since President Trump took office, the transparency community—including CoA Institute—has raised valid concerns about the White House’s coordinated effort to stifle transparency, both in the context of FOIA and with respect to congressional inquiries and oversight requests.  This is an unfortunate development, and CoA Institute remains committed to fighting for open government.  But insofar as the current Administration questions the value of President Obama’s legacy, it should commit itself to greater transparency.  The Washington Post described the Obama Administration as one of the “most secretive,” “most elusive,” and “most punitive toward whistleblowers and leakers who want to bring light to wrongdoing they have observed from inside powerful institutions.”  The Trump Administration should endeavor to do better.  No one should fear the disinfecting power of sunlight, and the federal government is always in need of some cleaning.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Filed Under: Media, Blog Tagged With: , , , , ,