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CoA Institute Investigates Role of DHS, Shooter’s Motives in Dallas Shooting

July 14, 2016 by

Washington, DC – Cause of Action Institute (CoA Institute) today filed a Freedom of Information Act (FOIA) request to investigate the involvement of the Department of Homeland Security (DHS) in investigating and responding to the recent shooting of Dallas police officers. In light of seemingly contradictory statements by Secretary Johnson and President Obama regarding the shooter’s motives, CoA Institute seeks to better understand if information is being withheld from the American public.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Statements about the shootings by President Obama and DHS Secretary Jeh Johnson raise questions about the DHS role in responding to the Dallas shooting and whether there is information about the shooter being withheld from the public.  Because Secretary Johnson appears to be the first public official to confirm that only one shooter existed, it raises questions as to what extent DHS was involved during the aftermath of the shooting and why local authorities were not first in alerting the public. Additionally, discrepancies between statements by President Obama and the Dallas police chief raise concerns that there may be additional information about the motives of the gunman that are being withheld from the public by the Obama administration.”

Background:

On July 7, 2016, a gunman killed five police officers in Dallas, Texas.  On July 8, Chief David Brown held a press conference and stated that multiple suspects may be involved. Three suspects were ultimately taken into custody. Later the same day, Secretary Johnson contradicted initial reports by announcing that the gunman apparently acted alone. According to media reports, Secretary Johnson was the first public official to announce that the gunman was a sole actor.

Additionally, at a press conference on July 9, President Obama said that it is “very hard to untangle the motives” of the Dallas shooter.   He further stated, “I’ll leave that to psychologists and people who study these kinds of incidents . . . I think the danger is that we somehow suggest the act of troubled individuals speaks to some larger political statement across the country.”   President Obama’s statement that the motives of the gunman appear uncertain directly contradicts Dallas Police Chief David Brown’s description of the incident.  According to Chief Brown, the gunman stated that he “was upset about the recent police shootings…and he wanted to kill white people, especially white officers.”

CoA Institute requests documents and communications to better understand the role of DHS in the aftermath of the Dallas Shooting. The full FOIA request is available HERE.

Filed Under: Press Release, Media Tagged With: , , ,

Did Federal Government Push Controversial Hawaii Gun Law?

July 7, 2016 by

Washington, DC – Cause of Action Institute (CoA Institute) today filed a Freedom of Information Act (FOIA) request to examine any potential involvement by the Department of Justice (DOJ) in preparing or advocating for Hawaii’s recently-passed law to restrict the exercise of constitutionally-protected gun rights.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “While touted as an important public safety measure designed to encourage responsible gun ownership and assist law enforcement, in reality this legislation will place law-abiding American citizens into a database maintained by the federal government to monitor criminals. This measure has the potential to severely chill gun ownership in Hawaii and limit individuals from exercising their Second Amendment rights.”

On June 23, 2016, Hawaii Governor David Ige signed into law SB 2954, thereby authorizing “county police departments in Hawaii to enroll firearms applicants and individuals registering their firearms” into a federal database known as “Rap Back,” which is a centralized “criminal record monitoring service” maintained by the FBI.

The Hawaiian gun law is unprecedented.  It makes Hawaii the first state to submit information about its gun-owning citizens to the federal government. In light of current efforts by the Obama administration to create a national gun registry—which would be prohibited under current law —there is significant interest in examining the role, if any, played by the federal government in the development of this new law.

The full FOIA request is available HERE

Filed Under: Press Release, Media Tagged With: ,

More needs to be done to fix FOIA (Judge Lechner Opinion–The Hill)

July 7, 2016 by

More needs to be done to fix FOIA

By Alfred J. Lechner, Jr. | July 06, 2016

Having just celebrated its “golden” 50th anniversary this Independence Day, the Freedom of Information Act (FOIA) is in desperate need of reform. President Obama issued a memorandum a day after his inauguration directing that the FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”  Instead, Obama administration agencies have sought to delay FOIA document production and taken advantage of FOIA loopholes to keep the public in the dark when disclosure of government information is most beneficial.  As described in the 2016 House Committee on Oversight and Government Reform report, “FOIA Is Broken,” agencies routinely “overuse and misapply exemptions,” create policies “designed to deter requesters from pursuing requests and create barriers to accessing records.”

Bipartisan efforts in Congress to amend FOIA, which the president supports, reaffirm the importance of this essential tool for democratic governance and accountability.  In June, the FOIA Improvement Act of 2015 (S. 337) passed both the House and the Senate and the president signed the bill into law last week.

The FOIA Improvement Act ultimately aims to codify a “presumption of openness” by amending the FOIA to state that unless the agency “reasonably foresees” that disclosure would cause identifiable harm to an interest protected by an exemption, or if the disclosure is prohibited by law, the material should be released. Under the bill, agencies will be required to make records available in an electronic format and there will be an expanded and codified role for a more independent Office of Government Information Services.  These are commonsense ideals for a more open government. The primary principle underlying FOIA when it was signed into law a half century ago was to “hold the governors accountable to the governed.”

Unfortunately, the broad language in the FOIA Improvement Act does not address powerful agency disincentives to comply with and promote the goals of FOIA. The well-intentioned, yet undefined “reasonably foresee” standard may result in years of litigation until its transparency goal is achieved.  Courts will rule upon the application of this standard after viewing documents behind closed doors.  Such in camera review, in which the court reviews the documents in secret without disclosure to the opposing party, is antithetical to our adversarial system of justice; it places the judge in the awkward position of serving as both judge and advocate.

Fundamental problems with the FOIA will remain.  A recent study by the Associated Press (AP) found that the government, across agencies, was taking “longer to turn over files,” increasingly claiming that it could not locate records, and had “refused a record number of times to turn over files quickly that might be especially newsworthy.”  The AP also found that the government “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.”

My organization, the Cause of Action Institute, spent three years litigating two Federal Trade Commission misinterpretations of FOIA fee provisions that were superseded by the OPEN Government Act of 2007, a law that anticipated the increased scalability of the news industry.  Justice was finally achieved following appeal to the D.C. Circuit and an opinion authored by Chief Judge Merrick Garland.  Agency delay, misapplication of exemptions, and reliance upon outdated guidance contribute to the problems of a broken FOIA and result in unnecessary agency costs.

Congress periodically updates the FOIA, yet federal agencies continue to find new ways to delay or avoid compliance. For example, although text messages and instant messages involving official government business are records subject to the FOIA, some agencies simply make no effort to store, locate, or search for these records, depriving the public of appropriate information.  Others, such as the IRS, acknowledge that such messages are records subject to the FOIA, and yet do not preserve them long enough for a requestor to seek access to them. Cause of Action Institute has sued the IRS over an agreement it signed with its employee union to destroy instant messages sent between IRS employees. This is a violation of the Federal Records Act and makes FOIA requests for these communications impossible.

Agencies and their employees need to be incentivized to provide greater disclosure and penalized for non-compliance.  Agencies should recognize and reward employees who timely produce public records.  Congress should also enact penalties for agency non-compliance by making attorneys’ fees and costs mandatory if a FOIA requester has to sue to obtain records.

Since it was first enacted in 1966, Congress has passed major FOIA reform legislation in 1976, 1986, 1996 and 2007. The current decennial effort to amend the FOIA, while a welcome demonstration of congressional bipartisanship to promote Executive Branch transparency, is a missed opportunity to fix many longstanding, fundamental problems. Hopefully, the political will to solve these problems will manifest in time for the “FOIA Improvement Act of 2026.”

Alfred J. Lechner, Jr. is a former U.S. District Judge for the District of New Jersey, and President and CEO of the Cause of Action Institute, a District of Columbia non-profit oversight and transparency law firm.

http://thehill.com/blogs/congress-blog/judicial/286632-more-needs-to-be-done-to-fix-foia

 

 

Filed Under: News, Media

#TBT – Prescient CoA Institute Report Anticipated Clinton Email Scandal

June 2, 2016 by

In July 2012, CoA Institute published “Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?” in the Federalist Society legal journal Engage.[1]  More than two years before Secretary Clinton’s decision to use a personal email address and private server to conduct official government business first came to light, CoA Institute warned:

“The practical reality is that … federal agency employees have and will continue to conduct agency business using personal e-mail accounts and personal communications devices.  Until Congress or the courts definitively clarify whether these work-related communications are subject to FOIA’s disclosure provisions, a dangerous loophole enabling unscrupulous agency employees to intentionally evade the light of public scrutiny may exist.”

CoA Institute noted the practical and technical problems associated with obtaining “agency-business-related communications that are never captured on government computers or servers,” which are nonetheless agency records subject to the Freedom of Information Act (FOIA)—a federal transparency statute.  But as CoA Institute said in 2012, “federal executive branch agency personnel should not be able to use personal communications devices, such as home computers and personal e-mail accounts, to intentionally circumvent the FOIA’s disclosure provisions and evade public scrutiny of their professional conduct.”

A May 2016 State Department Inspector General report examining Secretary Clinton’s use of a private email account and server to conduct government business has now confirmed CoA Institute’s suspicions, illustrating the need for action. The IG Report reveals email correspondence suggesting that the private Clinton server and Clintonemail.com were used, at least in part, to intentionally shield Clinton’s work-related communications from public disclosure under FOIA:

“In August 2011, … [t]he then-Executive Secretary informed staff of his intent to provide two devices for the Secretary to use: ‘one with an operating State Department email account (which would mask her identity, but which would also be subject to FOIA requests)….’ In another email exchange, the Director of S/ES-IRM noted that an email account and address had already been set up for the Secretary and also stated that ‘you should be aware that any email would go through the Department’s infrastructure and subject to FOIA searches.’ However, the Secretary’s Deputy Chief of Staff rejected the proposal to use two devices, stating that it ‘doesn’t make a whole lot of sense.’ OIG found no evidence that the Secretary obtained a Department address or device after this discussion.”

The IG report indicates that Clinton’s email practices were driven, at least in part, by a sophisticated understanding of FOIA and a deliberate effort to frustrate the public’s right to know what the government is up to, as CoA Institute warned in 2012.

[1] Cause of Action Institute, Gmail.gov: When Politics Gets Personal, Does the PublicHave a Right to Know?, Engage, Vol. 13, Issue 2 (July 2012), available at http://www.fed-soc.org/publications/detail/gmailgov-when-politics-gets-personal-does-the-public-have-a-right-to-know (last visited June 1, 2016).

Filed Under: Blog

Supreme Court Ruling Protects Property Rights

May 31, 2016 by

Today, the United States Supreme Court issued an 8-0 opinion in U.S. Army Corps of Engineers v. Hawkes Company protecting landowners’ right to meaningfully challenge government overreach and arbitrary deprivation of private property rights.  The Court rejected the Corps’ argument that a federal court was not allowed to weigh in on the agency’s assertion of jurisdiction to regulate the Hawkes Company’s use of its own land to mine peat unless the company first spent hundreds of thousands of dollars to complete a time-consuming, complicated government permitting process. Cause of Action (CoA) Institute filed an amicus brief in support of the Hawkes Company, which was represented by the Pacific Legal Foundation.   The Court held that an approved Jurisdictional Determination (approved JD)—a federal agency determination that private property contains “waters of the United States” subject to the Clean Water Act (CWA) and the Environmental Protection Agency (EPA) “Waters of the United States” (WOTUS) regulation— is judicially reviewable under the federal Administrative Procedure Act (APA).

In its amicus brief, CoA Institute argued that the Corps approved JD deprived Hawkes of a property interest protected by the Fifth Amendment to the federal Constitution because it reduced the value of its land by preventing Hawkes from mining peat on it without fear of an EPA enforcement action.  Coupled with substantial criminal and civil penalties for CWA violations, a due process violation would result if immediate APA review of the Corps-approved JD is unavailable.

Justices Kennedy, Thomas, and Alito appear to share CoA Institute’s due process concerns and agree that the Constitution requires immediate judicial review of the federal government’s assertion of jurisdiction to regulate private property under the CWA.  In a concurring opinion joined by Justices Thomas and Alito, Justice Kennedy said that “the Court is right to construe a JD as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.”  Justice Kennedy wrote that the CWA, “especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”  CoA Institute applauds this unanimous Supreme Court decision protecting landowner property and due process rights.

Filed Under: Blog Tagged With: , ,

Press Call to Discuss Justice Department’s Mortgage Settlements

May 20, 2016 by

WASHINGTON – Cause of Action (CoA) Institute has led efforts to investigate the settlements between the Justice department and big banks over their allegedly faulty mortgage practices. Last year, CoA Institute issued multiple public records requests aimed at exploring whether DoJ has the legal authority to enter into these settlements in the first place.

Representative Sean Duffy (R-Wis), Chairman of the House Financial Services Subcommittee on Oversight, recently held a hearing to examine the Department of Justice’s settlements with big banks over these mortgage practices. CoA Institute is also probing whether DoJ has the legal right to encourage banks to steer settlement funds to preferred third-party groups that support various initiatives backed by the Obama administration. To date, the Justice Department has not answered any of these important questions.

Today, CoA Institute President and CEO Alfred J. Lechner, Jr. hosted a press call with Rep. Duffy to discuss the Justice Department’s mortgage settlements with banks. The administration should be held accountable to taxpayers who deserve to know why the money from these settlements is not being returned to the Treasury Department, as the law requires.

The audio file can be found HERE.

Filed Under: Investigation, News Audio, News, Blog, Media