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Court Dismisses Hillary Clinton Email Recovery Case

November 9, 2017 by

Washington D.C. – A federal judge in the U.S. District Court for the District of Columbia today dismissed a case brought by Cause of Action Institute (“CoA Institute”) and Judicial Watch against the Secretary of State and the Archivist of the United States to compel them to fulfill their legal obligations to recover all of Hillary Clinton’s unlawfully removed email records during her tenure as Secretary of State.

In December 2016, the D.C. Circuit Court of Appeals ruled in favor of CoA Institute and Judicial Watch, overturning an earlier opinion by the same district court judge that had dismissed the case as “moot.” Despite the higher court’s rebuke, the Secretary of State and U.S. Archivist still refused to perform their statutory obligations under the Federal Records Act to recover Secretary Clinton’s email records by initiating action through the Attorney General.

CoA Institute President and CEO John J. Vecchione: “The fact that this case was dismissed does not absolve Secretary Clinton or show that all of her unlawfully removed email records have been recovered. In fact, the Court’s decision shows that Secretary Clinton violated the Federal Records Act and that a subset of her work-related emails remains missing. Unfortunately, the Court concluded that efforts by the FBI in its investigation of Secretary Clinton’s handling of classified material, which resulted in the recovery of numerous emails that Clinton had not previously turned over, left nothing further for the Attorney General to do.”

This case, for the first time, brought to light that the FBI’s investigation included the issuance of grand jury subpoenas. The Court stated that “referral to the Attorney General” is the typical remedy for unrecovered records, but found that unnecessary in this case because:

The Government has already deployed the law enforcement authority of the United States to recover Clinton’s emails, as the FBI has sought those records as part of its investigation into whether Clinton mismanaged classified information. The Court thus need not speculate about what the Attorney General might do.

Testimony submitted by FBI Assistant Director E.W. Priestap opined that the Bureau’s investigation was conclusive. However, the FBI’s investigation focused solely on “unauthorized transmission and storage of classified information” and was not a Federal Records Act record-recovery effort, which was the focus of this litigation. Regardless, the Court found Agent Priestap’s opinions “relevant and reliable,” stating:

Although the FBI and the Attorney General are not one and the same, Jeff Sessions would necessarily look to his investigative arm to recover Clinton’s emails. The FBI’s own assessment of its searches is therefore telling.

Read the full opinion here

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Coal Subsidies: Just As Bad As Green Energy Subsidies

November 7, 2017 by

Republicans promote the free market rhetorically, but in crafting policy, all too often they jump ship and support corporate subsidies for favored industries. For example: coal subsidies.

President Donald Trump followed that well-worn path last month when he called for coal subsidies that would cost American taxpayers an estimated $10.6 billion per year, according to a joint analysis from Climate Policy Initiative and Energy Innovation.

Trump appears to be trying to live up to his promise to bring back coal jobs, but he shouldn’t ignore free market principles or force the energy market at the expense of the economy as a whole. Coal has been declining in its percentage of the energy market for several decades. Although anti-coal regulations put in place by previous administrations have played a role, the increased efficiencies in the production and use of natural gas have been the primary driver of coal’s loss of market share.

Coal production started declining in the ‘80s when low-sulfur coal become harder to find. It dipped again in the late 2000s as hydraulic fracturing made natural gas cheaper to produce. Once natural gas became competitive with coal, power companies started building cheaper and more efficient gas-run generation plants.

In addition, power generation from renewable energy is estimated to increase by 169% by 2040, while coal, as a percentage of our energy mix, could decrease by 51%, Bloomberg New Energy Finance predicts. For a number of reasons, solar has even become cheaper than coal in many countries, and as the Guardian reported, even with Trump’s laudatory hands-off approach on green energy, companies are still investing heavily in alternative fuel sources.

As with all state-controlled markets, government policies that favor one sector over another end up helping certain companies and individuals at the expense of others, and ultimately, it injures consumers and the economy, generally. President Trump’s plan would subsidize only a handful of companies that operate about 90 plants in the East Coast and Midwest. Meanwhile, the specter of cronyism has emerged. As E&E News reported, the official leading the charge on this initiative previously lobbied for FirstEnergy Corp., a company that stands to benefit directly from the coal subsidies.

Trump’s plan to help the coal industry is similar to former President Obama’s initiatives to prop up green energy, which conservatives properly lambasted as inappropriately “picking winners and losers.” Indeed, President Obama funded select green energy groups that played politics well, even if they didn’t use the money as efficiently as they could. For example, Solyndra received guaranteed loans, but an investigative report showed it never got close to yielding its expected results. Its principals played politics, wasted and misused taxpayer money, and kicked the can down the road until everything collapsed. Companies like Solyndra were able to ignore the signals of the market, cash in on government largesse, funnel massive bonuses to high-salary CEOs even as their business crumbled beneath them, and were never held accountable.

If Trump uses federal coal subsidies, one should expect similar results. Coal companies will be encouraged to play politics to stay afloat instead of being encouraged to provide more efficient products and services. And this means Americans may be forced to prop up companies that aren’t able to compete in the market. It is a waste of taxpayer money.

Trump and other Republicans should embrace free market principles that incentivize competition rather than embracing a top-down approach that will help a few businesses at the expense of everyone else.  By all means, eliminate the regulations that unfairly target coal at the expense of other energy sources, but don’t transfer taxpayer money in the form of subsidies, another failing business model.  The government should not be in the business of picking who wins and who loses.

Tyler Arnold is a communications associate at Cause of Action Institute.

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Federal Records Law Must Keep Pace with Evolving Technology

November 3, 2017 by

Technology develops faster than law.  This maxim has implications across society, but one place it has particular purchase is in federal recordkeeping and the public’s right to access government information.  The two primary federal statutes that require government to preserve records and then allow the public to access those records are the Federal Records Act (“FRA”) and the Freedom of Information Act (“FOIA”).  Federal agencies, unfortunately, do not always live up to their obligations under these laws and government-oversight organizations turn to the courts to seek relief.  The public’s right to sue under the FOIA is well established.  However, courts rarely compel agencies to fulfil their FRA obligations.  My organization, Cause of Action Institute (“CoA Institute”), is currently involved in two important FRA lawsuits that may shape the future of agency obligations under the FRA for decades to come, as information technologies continue to change.

Both lawsuits arose from Secretaries of State failing to preserve their emails in compliance with the Federal Records Act.  Former Secretary Hillary Clinton’s email travails are well catalogued.  But former Secretary Colin Powell also used a non-governmental email account to conduct official government business.  The factual difference between these two cases is that while Secretary Clinton primarily used a personal email service with a server in her basement, Secretary Powell used an AOL account.  But Secretary Clinton also used a BlackBerry email account for the first two months of her tenure as Secretary of State.  So, from these two cases the same legal issue arises: what is an agency’s FRA obligation to recover unlawfully removed federal email records that are housed on commercial email servers?

This question is important to the future of federal recordkeeping law and public access to information because we are already seeing an explosion of non-email methods of electronic communication.  Some of these methods of communication store information locally, such as on a phone or computer, and some store them on commercial servers.  For example, FOIA requesters have been battling for access to text messages for years, agency employees use various forms of instant messaging while at work, and we’ve now seen the rise of the surreptitious use of phone applications such as Signal and Confide that do not always preserve the communications.

In Armstrong v. Bush, the D.C. Circuit recognized two cognizable private rights of action under the Federal Records Act.  First, a plaintiff may bring a case against an agency if that agency does not have the requisite recordkeeping policies in place or if the policies are insufficiently clear so that an employee does not know what type of records he is required to save.  Second, a plaintiff may bring a case to compel the head of an agency or the Archivist of the United States to recover records that have been unlawfully removed from the agency.  If the agency head or Archivist is either unable or unwilling to perform that duty, then the FRA requires them to “initiate action through the Attorney General for the recovery” of those records.  To our knowledge, no such referral to the Attorney General has ever occurred.

At stake in CoA Institute’s Clinton and Powell cases is whether a plaintiff can force the agency head and Archivist to refer the matter to the Attorney General when, through their own actions, they have failed to recover all the missing records.  In both cases the State Department asked representatives of Secretaries Clinton and Powell to recover the unlawfully removed records and return them to the agency for historical preservation and for response to FOIA requests.  In both cases those representatives responded that they were unable to obtain copies of the records that were housed on BlackBerry and AOL servers, respectively.  The State Department and Archivist have responded in the ongoing suits that those efforts are sufficient and that they are not required to use legal process or refer the matter to the Attorney General for more forceful efforts at record recovery.

CoA Institute’s case related to Secretary Clinton has already been to the D.C. Circuit once and the appellate court held that the agency is only absolved of its Federal Records Act obligations if it can establish the “fatal loss” of the records in question.  The State Department and Archivist have not made a sufficient affirmative showing that BlackBerry, and AOL in the case of Secretary Powell, do not have, and cannot recover, these email records.  They have offered no statements from either company or detailed efforts by those companies to recover and return the federal records.

Whether the district court compels the current Secretary of State and Archivist to make such an affirmative showing or requires them to refer the matter to the Attorney General for him to attempt record recovery could set an important precedent.  This decision will shape the future of agency responsibilities under the Federal Records Act and the public’s ability to have access to its government’s information as communications technology continues to change.

James Valvo is counsel and senior policy advisor at Cause of Action Institute.  He is counsel in both cases discussed in this article.  You can follow him on Twitter @JamesValvo.

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Cause of Action Institute Sues White House OMB Over Failure to Act on Transparency Rules

November 2, 2017 by

Washington, DC – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the White House Office of Management and Budget (“OMB”) for failing to act on two petitions for rulemaking submitted well over a year ago. Both petitions ask OMB to take its transparency obligations seriously and enact rules that would promote public disclosure of agency records.

The first petition requests that the Office of Management and Budget update its fee guidance for Freedom of Information Act (“FOIA”) requests. OMB’s fee guidance is outdated and now conflicts with both statutory and judicial authorities. The FOIA law requires OMB to establish these guidelines and requires every agencies’ fee rules to conform to OMB’s guidance. The FOIA Advisory Committee and the Archivist of the United States have also recommended that Office of Management and Budget update this guidance.

The second petition relates to protecting taxpayers against wasteful executive branch earmarks. Previous administrations have required agencies to disclose congressional efforts to meddle in agency spending decisions, an effort first started under President George W. Bush’s Executive Order 13457. The Trump administration has yet to address this issue.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “It does not appear the Trump administration has any plans to finalize these rules, which would go a long way to promoting government transparency. FOIA requesters are often deterred due to high costs agencies charge to produce records. In recent years, the courts have clarified that many groups beyond traditional journalists are now eligible for news media fee waivers. Updating OMB’s FOIA guidance to reflect this broad definition is critical. This lawsuit is a great opportunity for the Trump administration to show its leadership on transparency issues.”

The lawsuit can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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Transparency Groups: Finalize Release to One, Release to All FOIA Policy

October 31, 2017 by

Cause of Action Institute and Sunlight Foundation file petition to advance rule that would promote broad disclosure of agency records

Washington, DC – Cause of Action Institute (“CoA Institute”) today joined the Sunlight Foundation in filing a petition for rulemaking demanding the Trump administration move forward with a rule to promote government transparency and broad public disclosure of agency records. The Release to One, Release to All rule, first proposed by the Obama administration, mandates that agencies make records produced in response to Freedom of Information Act (“FOIA”) requests also publicly available on the agencies’ websites, with certain limited exceptions. CoA Institute also led a broad coalition of government transparency organizations in sending a letter to the White House Office of Management and Budget (“OMB”) and Department of Justice Office of Information Policy urging action to finalize the rule.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “‘Release to One, Release to All’ is a great way to increase the amount of government information in the public sphere. When agencies release information under FOIA, with limited exceptions, it is prepared for release to the public. The Obama administration has already run the pilot program and the Department of Justice has already accepted public comment on the policy. It’s time to finalize it.”

Sunlight Foundation Deputy Director Alex Howard: “Despite multiple requests for updates from the Justice Department over the past year, it does not appear the Trump administration has any plans to finalize and promulgate this policy, or even answer basic questions about why it has stalled. Our petition compels the Trump administration to either move forward with disclosure and implementation, or explain why they don’t believe the policy is workable. The ‘Release to One, Release to All’ policy for the Freedom of Information Act has broad support within the transparency community, and we deserve an explanation as to why progress has ground to a halt after months of analysis, planning and responsive feedback to a request for public comment.”

On June 30, 2016, President Obama directed a review of the feasibility of such a FOIA policy. More than ten months have passed since the January 1, 2017 completion deadline for that review. Despite this analysis and gathering public comments, progress on the rule has now halted completely without explanation.

For these reasons, CoA Institute led a group of 22 organizations in sending a letter to the White House and Justice Department urging them to take the next step in finalizing the policy.

The letter states:

“Release to One, Release to All” is sound public policy that would increase government transparency and leverage the existing investment in FOIA disclosures… Placing this information in the public domain would allow the public to know what type of information is being requested, to search these prior productions for information relevant to their own purposes, and, perhaps, decrease the number for future requests or facilitate future requesters making more informed and targeted requests. What’s more, placing these information resources into the public domain has the potential to create unknown benefits, such as analyses of patterns in FOIA requests and harnessing of the information for other uses… We urge you to take the next step and finalize the policy.

The petition for rulemaking can be found here.
The letter can be found here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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DHS Watchdog Claims Political Appointees No Longer Politicizing FOIA

October 20, 2017 by

One of the earliest transparency scandals of the Obama Administration erupted in 2010 when the Associated Press discovered that officials at the Department of Homeland Security (“DHS”) had, “in a highly irregular move,” started to “filter hundreds of public records requests through political appointees, allowing them to examine what was being requested and delay releasing sensitive material.”  These appointees, along with senior officials and public affairs staff, effectively blocked or delayed the disclosure of potentially embarrassing or politically-damaging agency records under the Freedom of Information Act (“FOIA”).  Their interjection into the FOIA process—and retaliation against career staff members who objected to this “sensitive review”— resulted in a congressional inquiry and damning Oversight Committee report.  The Obama Administration politicized FOIA the same way at the Department of Housing and Urban Development, the Environmental Protection Agency, the State Department, and the Department of the Treasury.  The situation at DHS, however, has improved, according to a recently-released Inspector General report.

The July 7, 2009 memorandum establishing sensitive review procedures at DHS included extensive reporting requirements, including updates to the White House about agency disclosures.  The DHS Inspector General politely described this, in a March 2011 report, as “unprecedented.”  It “created inefficiencies that hampered full implementation” of the FOIA.  More troubling, the policy had the practical effect of targeting media organizations and critics of the Administration.  Agency officials regularly delayed requests from media outlets, for example, so that they could develop a public response to damaging records.  And other disclosure decisions were sometimes based on the political affiliation of a requester.

Now, in response to a June 2015 request from the U.S. Senate Homeland Security and Governmental Affairs Committee, the Inspector General has published a new report that revisits its earlier findings and suggests that the culture of FOIA politicization at DHS has improved.  Since 2011, DHS has “reduced the number of days that political appointees . . . have to review releases from 3 days to 1 day.”  The sensitive review process has been renamed the “1-Day Awareness Notification Process.”  And, in most cases, FOIA officers “no longer wait for approval before releasing responses to significant FOIA requests” because it is “not required.”  An audit of 57 “significant requests” showed that none were delayed because of political appointee intervention.

These findings are positive.  The more limited involvement of fewer political appointees—“an advisor to the DHS Secretary, an official in the Office of Public Affairs, and the Chief FOIA Officer”—as well as a shorter “notification” period, limits the potential for politicization while respecting agency leadership’s concern for being kept aware of disclosures that might ignite media attention.  The apparent removal of any sort of necessary “clearance” authorization from political staff, or the removal of a requirement to obtain such clearance before release, is also a helpful development.  Oddly, DHS’s revised procedures are only “informally documented” in a “2012 email” and “2015 draft guidance.”  According to the Inspector General’s report, the DHS Privacy Office aims to finalize them by the end of the year.  The sooner, the better.

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

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Litigation Update: Ensuring Access to Records of the Executive Branch’s Interaction with Congress

October 5, 2017 by

In December 2016, Cause of Action Institute (“CoA Institute”) sued the Internal Revenue Service (“IRS”) after it refused to produce a variety of records concerning its dealings with the Joint Committee on Taxation .  The IRS claimed that all such records, which CoA Institute requested under the Freedom of Information Act (“FOIA”), would be “congressional records” exempt from disclosure.  Yet the IRS never conducted a search.  Instead, it based its determination on questionable guidance from its Office of Chief Counsel, which contradicts long-standing legal precedents for when agency records must be provided to the public.

The IRS moved to dismiss CoA Institute’s lawsuit for lack of subject-matter jurisdiction, arguing that because any and all responsive records were presumptively “congressional,” the court lacked the authority even to hear CoA Institute’s arguments.  Once again, the IRS founded its position on the Chief Counsel’s guidance, as well as generalized descriptions of a consistent course of “confidentiality” in IRS’s communications with the Joint Committee on Taxation.  CoA Institute opposed the IRS’s motion and explained that the agency’s position relied on a serious misunderstanding and misapplication of the law, prescribed an overbroad and unjustified approach to distinguishing “agency” and “congressional records,” and would sweep a broad range of records, which should otherwise be subject to the FOIA, into an “exempt” category.  As I have argued elsewhere, “[t]he mere fact that a record controlled by an agency relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a congressional record.”  Its availability instead depends on whether Congress manifested clear intent to maintain its control over it.  Here, the IRS had failed to meet its burden in demonstrating that intent.  How could the agency do so when it refused to conduct a search for the very records at issue?

During oral argument at the end of August, the Court expressed its reservation about the novelty of the IRS’s argument and its presumptive application of the relevant legal standards to exclude categorically all of the requested records as being “congressional” records.  The Court also questioned whether the IRS had properly moved to dismiss for lack of subject-matter jurisdiction, rather than moving to dismiss for failure to state a claim upon which relief can be granted.  Although the distinction may seem like mere “legalese,” it is an important one that affects what sort of evidence outside the pleadings the Court may examine and whether the Court lacks authority to adjudicate a claim arising under federal law (i.e., subject-matter jurisdiction), or simply has no basis to provide the relief sought by a plaintiff, (i.e., an order to disclose non-exempt agency records).

Yesterday, CoA Institute filed a supplemental brief, arguing that the Court was correct to question whether the IRS had properly moved to dismiss for lack of subject-matter jurisdiction.  It is important that the Court reach the right answer to this procedural question.  It will have important implications for FOIA litigation.  The government, here and in other recent FOIA cases, seeks to collapse merits determinations—e.g., whether a requester has sought “agency records”—into jurisdictional questions.  The courts should not allow that to happen.  There is already an asymmetry of knowledge between requesters and agencies.  Forcing a requester to fight an agency on jurisdictional grounds, without the benefit of a search having been conducted and relevant records identified, is not only unfair but would provide the government yet another tool to evade its transparency obligations under the FOIA.

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

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