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Congress May Give the FTC More Money and Power, Making Its Internal Watchdog More Important than Ever

December 4, 2018 by
  • Congress may grant more power and money to the FTC, even though it needs stronger oversight from its internal watchdog at its current budget and authority.
  • Currently, FTC’s internal watchdog is hired and fired by the FTC, and lacks independence
  • Left unchecked, the powers of the FTC can undermine the ability for entrepreneurs and innovators to reach their full potential

In a recent hearing before the Senate Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security, the five commissioners of the Federal Trade Commission (FTC) requested more resources and authority, and Senators on the committee appear inclined to approve the FTC’s request. According to National Journal:

“I’ve never met an agency, or a department or a commission, that didn’t believe they needed more resources,” [Senator Jerry] Moran said. “I hear it on an ongoing basis. But I think this is different.”

Senator Moran, who chairs the Subcommittee, assembled the five FTC commissioners to hear their recommendations for a burgeoning bill to create a national standard on data privacy. FTC Chairman Joseph Simons opportunistically pushed for greater funding and the authority to make additional rules on data protection and levy civil fines against corporate actors found to have violated consumers’ privacy; and the senator found himself “sympathetic” to the pitch.

However, greater power requires greater accountability, and the FTC’s past use of its funding and authority has not been without controversy. In August 2018, Cause of Action Institute (CoA Institute) submitted comments outlining structural and procedural reforms to prevent the FTC from abusing its authority in the future. Without those reforms and a potential increase in the Commission’s budget and authority, effective oversight of the FTC will be as important as ever.

To that end, the FTC’s Inspector General (IG) is charged with ensuring the agency doesn’t overreach its authority, but CoA Institute’s experience with the IG suggests the office may be reluctant to hold the FTC accountable. This could be because the FTC IG is constrained by its lack of structural independence but also could be because of the IG’s cozy relationship with the agency. While many Inspectors General are nominated by the President and confirmed by the Senate to oversee their respective agencies, the FTC is one of 29 agencies where the IG is appointed by—and can be removed by—the head of the agency.

Most recently, Chairman Simons appointed Andrew Katsaros as the FTC’s Acting IG on June 8, 2018, following Roslyn Mazer’s retirement after three years as IG. So, not only was IG Katsaros chosen by the head of the agency he is supposed to oversee, but he is also designated only as “Acting IG.”  Crucially, the Project on Government Oversight (POGO) notes that acting inspectors general are less effective than permanent inspectors general:

Inspector general offices are most effective when led by a permanent inspector general, rather than an acting official … a permanent IG has the ability to set a long-term strategic plan for the office, including establishing investigative and audit priorities. An acting official, on the other hand, known by all IG office staff to be temporary, may tend to lack direction or vigor.

Curiously, while many inspectors general make their investigative reports public (there is a website dedicated to just publishing these reports from across the government), the FTC IG does not. It appears the FTC IG’s investigative reports aren’t available without a FOIA request, which CoA Institute recently submitted to obtain a September 30, 2015 report (a revised version was sent on October 16, 2015) relevant to one of our prior cases defending against FTC overreach. The report takes the form of a letter from the FTC IG to the U.S. House Committee on Oversight and Government Reform (OGR) regarding the FTC’s handling of its case against LabMD, a small cancer detection lab that, despite ultimately prevailing in court, was put out of business by the FTC’s egregious overreach.

The first substantive section of the letter suggests the IG had no interest in conducting oversight if OGR was investigating the matter, even though IGs and congressional committees commonly conduct investigations in tandem into the same matters: OGR “staff’s representation that they would cease investigative activity factored strongly in the OIG’s decision to initiate investigative activity.”  The IG also complained that OGR did not provide the IG documents related to the inquiry, but the IG has the authority to conduct interviews and request documents from the agency to conduct its oversight duties.

Further, OGR published a report in January 2015 outlining many troubling findings related to FTC’s conduct in the LabMD case. Despite having access to that report, the FTC IG appears to have written its letter more like the agency’s defense counsel, rather than its independent overseer.

For example, the IG’s letter tries to roll back the position the FTC previously represented to OGR on a key issue in a way that is favorable for the agency:

From the OGR Staff Report Dated January 2, 2015:

The FTC admitted that the use of Tiversa’s information was unusual relative to standard agency operating procedures for enforcement measures.

From the FTC Letter to OGR on September 30, 2015:

Based on our investigative activities, the OIG found that the FTC handled evidence received from Tiversa in the same manner it had handled other evidence about data security breaches.

There are other aspects of the letter that also suggest disinterest in holding the FTC accountable. The IG went out of its way to note that LabMD had lost rulings in various federal courts:

We note that LabMD litigated cases against the FTC in the U.S. District Court for the Northern District of Georgia and the U.S. Court of Appeals for the Eleventh Circuit. Both courts denied LabMD’s motion for preliminary relief for lack of jurisdiction.

It’s unclear why the FTC IG felt the need to mention that fact, but its inclusion was incredibly short-sighted considering LabMD won its case before the FTC Administrative Law Judge less than two months later and would eventually win before the Eleventh Circuit Court of Appeals in 2018.

Concerned about the independence and prior work of the FTC’s IG, CoA Institute sent a FOIA request in September 2018, asking for the IG’s five most recent investigative reports, a list of all preliminary investigations opened from January 2012 to the present, and a list of all investigations closed from January 2012, to the present. We have yet to receive any responsive documents from the agency.

If Congress follows through with empowering the FTC with more authority and money, the FTC IG needs to do more to safeguard tax dollars and prevent overreach, waste, fraud, and abuse. History teaches that so far it hasn’t been up to the task.

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

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FBI Records Show Former FBI Director James Comey’s Use of Personal Email

November 9, 2018 by

Cause of Action Institute has acquired former FBI Director James Comey’s work-related emails from his personal Gmail account. Garnered from the FBI through the first of rolling document productions in an ongoing Freedom of Information Act (FOIA) lawsuit, the email records start to shed light on the extent of Comey’s use of private email to conduct agency business.

The problems associated with using personal email for government work are obvious but those caught in the act often try to act like they had no idea they were doing anything wrong or justify their behavior as merely incidental. Cause of Action Institute (CoA Institute) has been at the forefront of shining a light on this behavior,  and first explored the issues raised by government employees using private email for official business in a 2012 journal article: “Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?”  In the six years since that article was published, CoA Institute’s investigations have demonstrated how the use of personal email or messaging apps for government business hinders transparency and accountability.

The ability to shroud government action in secrecy can also harm the economic rights of ordinary Americans. For example, small-scale family fishermen were harmed when the National Oceanic and Atmospheric Administration failed to search private accounts for email records related to onerous regulations that would devastate their business. Government overreach cannot be fought effectively if the process and enforcement are kept in the dark. That’s why CoA Institute is committed to holding the government accountable to transparency laws and has brought cases to uncover the private email use of officials such as former Secretary of State Colin Powell, former Secretary of State Hillary Clinton, and now, former FBI Director James Comey.

On June 14, 2018, after the Department of Justice (DOJ) Inspector General (IG) revealed “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business.” CoA Institute submitted FOIA requests to the Federal Bureau of Investigation (FBI) and the IG to obtain copies of that email correspondence.  After the agencies failed to respond to the requests in a timely fashion, CoA Institute filed a lawsuit on August 1, 2018 to bring transparency to Comey’s use of Gmail, which the IG had concluded was “inconsistent with the DOJ Policy Statement.”

The FBI provided its first rolling production late last week. You can read and download the documents here.

The FBI reviewed 526 pages, released only 156 pages, and withheld 370 pages in full. Notably, the FBI withheld seven emails under the FOIA’s law enforcement exemption, which applies only where the government can show that (1) a law enforcement proceeding is pending or prospective, and (2) release of information about that proceeding could reasonably be expected to cause some articulable harm. These withholdings are particularly troubling given that Director Comey told the IG he only used personal email “to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.” And according to news reports, Comey “stressed that his personal email was never used for classified or sensitive work.”

The e-mails records released to CoA Institute show that Director Comey was aware that his use of personal email for government business would be seen as “embarrassing” to anyone who wasn’t aware of it previously.

The records also show that Director Comey used his Gmail to discuss the FBI’s investigation of Hillary Clinton’s email server. In other words, Comey was using a non-governmental email account while he was investigating Secretary Clinton for the same unlawful behavior.
In this case, as with nearly every instance, when public officials conduct business through unofficial channels, they are denying the public’s right to hold officials accountable through the most fundamentally sound principle of a healthy democracy: Transparency. Cause of Action Institute remains committed to holding government officials at all levels accountable and will continue to report on this case as the DOJ releases the more than 700 pages of Comey related emails that remain outstanding.

The full production can be found here.



FBI Production re Comey Gmails 10.31.18 (Text)

Other CoA Institute investigations of the use of personal email or messaging accounts for government business:

Documents Obtained by Cause of Action Show that Officials Worried About Hillary’s Emails But Took No Action (June 4, 2015)

Off-Grid Government: This Administration’s Pattern of Using Personal Email Accounts (December 22, 2015)

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment (February 28, 2018)

CoA Institute Files Reply in Support of Motion to Order Enforcement Action in Colin Powell Email Case (May 4, 2018)

 

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

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DOJ Releases First Set of Documents Showing High-Level Employee Using Private Email

October 8, 2018 by

“[L]ack of transparency is a huge political advantage. And basically, call it the ‘stupidity of the American voter’ or whatever, but basically that was really, really critical to getting the thing to pass.” – Jonathan Gruber, architect of Obamacare.

A fundamental pillar of an open and free society is a transparent and accountable government and the reason why Cause of Action Institute (“CoA Institute”) is investigating the use of non-governmental email for official government business by current and former high-level employees at the Department of Justice.

On March 1, 2017, Politico’s Edward-Isaac Dovere tweeted Sarah Isgur Flores, the new spokesperson at the U.S. Department of Justice, used her personal Gmail account to send out an official statement.

While public officials, by accident or necesity, use personal devices from time-to-time, the Obama Administration was notorious for using personal email and secretive government email accounts to avoid disclosure.

CoA Institute filed a Freedom of Information Act (“FOIA”) request the next day seeking the statement allegedly sent from Flores’ Gmail account along with all emails sent or received by Flores from a non-governmental email account since January 20, 2017, when the Trump Administration took office.

After a year and a half of waiting for a response, we filed suit on August 1, 2018 to obtain the documents. On September 27, 2018, the DOJ Office of Information Policy (“OIP”) provided a final response on the Flores request and claimed that the records were located in an official DOJ email account:

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

OIP’s production included 112 pages of emails showing Flores either forwarding or carbon copying her official DOJ email in late February through the end of March 2017. Yet despite the assurance from OIP that they have provided all the emails sent from a non-governmental account, OIP failed to include the original March 1, 2017 press statement that prompted CoA Institute’s FOIA request. It’s unclear whether  Flores failed to forward it to her official account, or if OIP failed to identify and include it in its document production.

The Flores records are only the first production owed to CoA Institute from DOJ in this litigation. The other records at issue concern the use of non-governmental email accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki. In a September 20, 2018 Joint Status Report, the FBI’s search for records uncovered more then “1,200 potentially responsive records”:

The FBI has completed its search and has located approximately 1,200 potentially responsive records, some of which may require consulting subject matter experts or referrals to other agencies. It anticipates a four-month processing timeline with the first release on October 31, 2018, and additional releases following on a monthly basis.

The 1,200 potentially responsive records is significant because the June 2018 Department of Justice Office of Inspector General (“IG”) report found “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business,” but only cited five examples. Further, Rybicki claimed that the use of non-governmental accounts was “rare”, and Comey stated that it was only used for documents that would be “disseminated broadly.”  From the DOJ IG report:

Comey stated that he did not use his personal email or laptop for classified or sensitive information, such as grand jury information. Comey told us that he only used his personal email and laptop “when I needed to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.”

 

We also asked Rybicki about Comey’s use of a personal email account. In response to the OIG’s questions and in consultation with Comey, Rybicki sent the OIG an email on April 20, 2017, that stated: In rare circumstances during his tenure, Director Comey sends unclassified emails from his official FBI.gov email account address to [his Gmail account]. (emphasis added)

The information we have thus far casts doubt on Comey and Rybicki’s statements to the IG about the frequency and nature of their use of non-governmental email accounts. As James Comey recently wrote, “little lies point to bigger lies.”  Stay tuned.

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8



Final Response (9 27 18) (Text)

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Cause of Action files lawsuit against DOJ relating to Lois Lerner-IRS data scandal

September 14, 2018 by

WASHINGTON, D.C. – Sept. 14, 2018 – Cause of Action Institute (CoA Institute) has filed a lawsuit against the Department of Justice (DOJ) seeking records relating to the infamous Lois Lerner-IRS scandal. In 2010, the Internal Revenue Service (IRS) improperly released 21 CDs of confidential taxpayer information to the DOJ. This illegal release of confidential tax information resulted in several internal investigations, but the government has refused to release any of its internal reports or communications relating to the scandal.

“Taxpayers deserve to a have a full and clear picture of what took place nearly a decade ago when the U.S. Department of Justice and Internal Revenue Service were partnering in an effort to target nonprofits,” said Ryan Mulvey, counsel at Cause of Action Institute. “We have repeatedly requested the release of the internal investigation reports and the records revealing when and what the DOJ shared with Congress about this improper release. Taxpayers deserve a clear picture of who knew what and what really took place in the targeting of nonprofits by the DOJ and the IRS.”

In its investigation of this matter, CoA Institute has engaged with various DOJ components and Treasury Inspector General for Tax Administration (TIGTA), filed multiple unanswered Freedom of Information Act (FOIA) requests, and sought records regarding the potentially illegal access to and disclosure of this confidential taxpayer information.

Background:

  • In 2013, the public learned that the IRS Exempt Organizations Section, led by then-Director Lois Lerner, had been involved in unfairly targeting nonprofits, allegedly for political purposes.
  • Before then, the IRS and DOJ met on several occasions to discuss targeted prosecutorial efforts.
  • At one of those meetings, the IRS improperly provided the DOJ with 21 CDs containing statutorily protected confidential taxpayer information. That information could have been disclosed to the DOJ pursuant to statutory exemptions, none of which applied to this disclosure.
  • DOJ returned to the IRS, the CDs contained 1.1 million pages of confidential information regarding tax return information of various tax-exempt groups.
  • CoA Institute wrote to both the TIGTA and the DOJ Office of Inspector General (DOJ OIG) to request investigations into this illegal access to and disclosure of confidential taxpayer information. TIGTA and DOJ OIG both opened investigations of this matter.
  • TIGTA refused to release its findings.
  • DOJ OIG, in a letter to CoA Institute, explained that, “[b]ased upon [its] initial inquiries, it appears that some protected taxpayer information was included on compact disks (CDs) that the IRS provided to the Department in response to a Department request.” Once “the Department learned of this, it returned the CDs to the IRS and informed Congress about it.” Citing “the absence of available information,” DOJ-OIG “determined that [CoA Institute’s request] does not warrant further investigation.”
  • In October 2016, CoA Institute sent a FOIA request to the DOJ-OIG seeking records of its communication with Congress relating to this unauthorized disclosure.
  • In October 2017, CoA Institute sent two additional FOIA requests to various DOJ components to ensure that CoA Institute received all relevant records pertaining to the IRS’s unlawful disclosure, particularly regarding the DOJ’s communications with Congress.
  • DOJ has refused to respond to any of the CoA Institute FOIA requests for this matter.
  • On Thursday, Sept. 13, 2018 Cause of Action Institute filed the following complaint against the U.S. Department of Justice, Cause of Action Inst. v. U.S. Dep’t of Justice, 18-2126 (D.D.C.)

Full complaint can be viewed below.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

Media Contact:

Matt Frendewey

matt.frendewey@causeofaction.org

202-699-2018

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Department of Veterans Affairs Discloses 2014 Guidance on Intra-Agency Consultations for FOIA Requests of “Substantial Interest” to Agency Leadership

August 16, 2018 by

The Department of Veterans Affairs (“VA”) has released a February 2014 memorandum reiterating the need for “consultations” on certain Freedom of Information Act (“FOIA”) requests, including those of “substantial interest” to the agency’s political leadership.  Cause of Action Institute (“CoA Institute”) obtained the record after submitting a disclosure request in the wake of Senate Democrats expressing concern over possible politicization of VA FOIA processes.

The memorandum, which is addressed to “Under Secretaries, Assistant Secretaries, and Other Key Officials,” indicates that VA regulations require intra-agency consultation or referral whenever incoming FOIA requests implicate records that originate with another component or prove to contain “information” of “substantial interest” to another VA office.  While “referral” entails the effective transfer of responsibility for responding to a request, “consultation” refers to discussing the release of particular records.

Consultation within an agency or with other entities can be a positive practice that ensures records are processed in accordance with the law.  Indeed, in some cases, “consultation” is required.  Executive Order 12600, for example, requires an agency to contact a company whenever a requester seeks confidential commercial information potentially exempt under Exemption 4.  Yet consultations occur in less-easily defined situations, too.

The FOIA only mentions “consultation” in the context of defining the “unusual circumstances” that permit an agency to extend its response deadline by ten working days.

[“Unusual circumstances” include] the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

Unfortunately, the phrase “substantial interest” is not itself defined.  This is where problems begin.  The Department of Justice’s (“DOJ”) guidance on consultation suggests that a “substantial interest” only exists when records either “originate[] with another agency” or contain “information that is of interest to another agency or component.”  The DOJ’s FOIA regulations, and the Office of Information Policy’s model FOIA regulation, while not dispositive, do provide a little more context.  They suggest “consultation” should be limited to cases when another agency (or agency component) originated a record or is “better able to determine whether the record is exempt from disclosure.”

CoA Institute has long sought clarification on the exact nature of a “substantial interest.”  In November 2014, we submitted a public comment to the Department of Defense (“DOD”) arguing that consultation should be restricted to situations where another entity has created a responsive record or is “better positioned to judge the proper application of the FOIA exemptions, given the circumstances of the request or its familiarity with the facts necessary to judge the proper withholding of exempt material.”  Although our proposed definition was admittedly non-ideal—DOD did not accept that portion of our comment—it hinted at the troubling abuse, politicization, and unjustifiable delay that can occur with consultation.

The best example of such abuse and politicization is found with “White House equities” review, which is carried-out as a form of “consultation.”  As CoA Institute has repeatedly documented, however, this form of “consultation” extends far beyond “White House-originated” records or records containing information privileged by White House-controlled privileges.  Instead, pre-production White House review has been extended to almost anything that is potentially embarrassing or politically damaging to the President.  In May 2016, CoA Institute sued eleven agencies and the Office of the White House Counsel in an effort to enjoin the Obama Administration from continuing “White House equities” review, but that lawsuit was dismissed.  It is unclear to what extent President Trump has continued the practice, although at least one other oversight group has uncovered evidence of recent White House review of politically sensitive records from the Department of Housing and Urban Development.

As for the VA, the recently disclosed memorandum is silent about the precise meaning of a “substantial interest.”  But, at least for the “substantial interest” of the agency’s political leadership, the memorandum indicated that “[f]ollow-up guidance will be forthcoming.”

This is especially troubling.  Last week, I discussed how DOD failed to address Inspector General recommendations concerning the agency’s so-called “situational awareness” process for notifying political leadership about “significant” FOIA requests that may “generate media interest” or be of “potential interest” to DOD leadership.  I noted that agencies hide behind technical phrases—like “substantial interest” or “situational awareness”—while allowing non-career officials to inappropriately interfere with FOIA processes.  This could be what is happening with the VA.  Why is special “guidance” needed to identify the “substantial interest” that the VA Secretary may have in a specific request?  Does this not hint of the same sort of inappropriate “sensitive” review implemented at countless other agencies?

CoA Institute has appealed the VA Office of the Secretary’s response.  The 2014 memorandum was the only record produced in response to our FOIA request.  The “follow-up guidance” should also have been located and disclosed.  It must be made public.  Other VA offices are still processing portions of our request; the Office of Inspector General, for its part, was unable to locate records about recent investigations into FOIA politicization.  As further information becomes available, we will post additional updates.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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DoD Watchdog Details Agency’s Failure to Address FOIA Shortcomings

August 8, 2018 by

The Inspector General (“IG”) for the Department of Defense (“DOD”) recently published its annual compendium of unimplemented recommendations given to various DOD components and military departments in past investigations, audits, and inspections.  The list of unresolved matters is rather lengthy—some issues are more serious, others less so.  Relevant here, the watchdog highlighted two outstanding recommendations concerning the Freedom of Information Act (“FOIA”) and, more specifically, the formalization and publication of Pentagon guidance on “sensitive review.”

Both of these FOIA-related recommendations originate with an August 16, 2016 IG report that was prepared at the request of Senator Ron Johnson, Chairman of the Homeland Security and Governmental Affairs Committee (“HSGAC”).  Senator Johnson initiated an investigation in 2015 into interference by political appointees within the Obama Administration in agency FOIA processes.  Cause of Action Institute (“CoA Institute”) actively followed the HSGAC inquiry and sued one agency, the Central Intelligence Agency, for refusing to release its response to the Committee.

“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records sought are potentially newsworthy or politically embarrassing.  In its most benign form, sensitive review involves notifying an agency’s public affairs team, communications specialists, or political leadership of incoming requests and outgoing productions.  At its worst, it entails the active involvement of non-career officials in processing and redacting records, which results in significant delays and sometimes completely prevents the disclosure of records that the public has a right to access.

Sensitive review has been increasingly in the news.  A week ago, I described CoA Institute’s new investigation into politicized FOIA at the Department of Veterans Affairs, following allegations raised by Democrats on the Senate Veterans’ Affairs Committee.  Last month, I explained how an official from the Environmental Protection Agency told Ranking Member Elijah Cummings at the House Oversight and Government Reform Committee that the Trump White House had supposedly added an “extra lawyer of review” for “politically charged” or “complex requests.”  And, earlier this year, I revealed records exposing the National Oceanic and Atmospheric Administration and the Federal Aviation Administration for heightening sensitive review by, among other things, targeting attorney and media requesters.

Although recent news reports suggest that “sensitive review” is a novel practice, that is not so.  Intra-agency FOIA politicization, and related practices such as “White House equities” review, did not originate with the Trump White House, but date to the Obama Administration and beyond.  Indeed, as I have explained here and here, the Obama White House was particularly notorious for its efforts to delay and block disclosure of politically damaging or otherwise newsworthy records.  President Trump is taking advantage of President Obama’s legacy of secrecy.

All this is confirmed by the case of the DOD.  In its 2016 report, the IG explained that it had failed to identify any instances of “noncareer officials” either “adversely affecting” or “unduly influencing” the agency’s FOIA process.  But the watchdog’s cautious language and technical phrases failed to mask other troubling practices, including a special “situational awareness process” for “significant” requests.  DOD guidelines governing that process still have not been incorporated into the agency’s FOIA regulations, FOIA manual, or FOIA directive.  (The IG also faulted DOD for failing to update its regulations in light of the Open Government Act of 2007 and Executive Order 13392, but that was remedied with the finalization of new regulations in February 2018.)

CoA Institute has obtained copies of two versions of DOD’s “situational awareness” protocol (here and here), one of which dates to December 2012.  Both records similarly define “significant” requests—that is, requests deserving of special treatment—to include anything likely to “generate media interest” or be of “potential interest” to DOD leadership.  Requests implicating Members of Congress or President Obama, even during his time as a senator, also were included.

In addition to “situational” notification, component FOIA officers were expected to provide weekly updates on “significant” requests to the front office and delay any response or production of records until clearance was provided by departmental disclosure leadership.

This requirement was emphasized for “White House or Congressionally related” FOIA requests.

Although alerting or involving agency leadership, including political appointees, in FOIA administration does not violate the law per se—and may, in rare cases, be appropriate—there is never any assurance that the practice will not lead to severe delays of months and even years.  The danger for politicization is evident.  “Notification” and “situational awareness” can too easily lead to political leadership controlling the disclosure of public records.  That result cannot be tolerated.

Although DOD has yet to incorporate its sensitive review protocol into formal and publicly available guidance, it is also unknown whether the policy has changed or been enhanced in any way in recent years.  Considering the unresolved IG recommendations, CoA Institute has submitted a FOIA request to DOD seeking further information.  We will continue to report on the matter as records become available.

Ryan P. Mulvey is Counsel at Cause of Action Institute



2018 08 08 Final and Approved DOD Sensitive Review FOIA Request (Text)

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Congressional Inquiries into the VA are the First Steps Towards Reforming the Agency

August 8, 2018 by

We recently published a blog post urging newly confirmed Department of Veterans Affairs (“VA”) Secretary Robert Wilkie to mitigate the cultural plagues preventing the VA from operating as the functional and ethically organized agency that our veterans deserve.  Reports published last month from the Washington Post and the U.S. Government Accountability Office (“GAO”) found several problems within the VA including politicization, retaliation against whistleblowers, impunity for senior officials, and an overall lack of transparency.  The VA’s problems won’t be fixed overnight, but external pressures for reform within the agency should hopefully spur necessary changes.

Fortunately, there appear to be signs of progress on the reform front with several new congressional inquiries.  At the end of July, members of Congress from both sides of the aisle wrote letters to express concern about the VA’s toxic culture and to seek further information about the agency’s ongoing problems.

  • As Cause of Action Institute Counsel Ryan Mulvey discussed last week, eight Democratic Senators, led by Ranking Member Jon Tester of the U.S. Senate Committee on Veteran’s Affairs wrote to the VA on July 25th to express concern about the possible politicization of the agency’s Freedom of Information Act (“FOIA”) policies. The senators sent a concurrent letter to the VA’s watchdog, Inspector General Michael J. Missal, requesting an investigation in their allegations: “[FOIA] is the route through which media and other interested parties get answers and information after their requests to [the] VA about policies and initiatives have gone unanswered.”
  • On July 26th, Representatives Tim Walz (D-MN), Mark Takano (D-CA), and Kathleen Rice (D-NY) authored a letter to Attorney General Jeff Sessions referring former Acting Secretary Peter O’Rourke for investigation for “alleged perjury, or withholding information from Congress, or making otherwise unlawful statements in testimony and communications before the Committee on Veterans’ Affairs.” This letter comes one month after O’Rourke falsely claimed he had authority over the VA Inspector General—an independent entity that ensures investigators can conduct their work without fear of reprisal by agency leadership.
  • Finally, on July 30th, a bipartisan coalition of congressmen wrote to Secretary Wilkie asking him to implement the GAO’s recommendations from their report:

“To ensure the Department of Veterans Affairs (VA) can fulfill its important mission, it is vital that its work force is properly trained, led, and accountable.  To that end we call your attention to the recent [GAO] report . . . and urge the VA to immediately implement the recommendations outlined in that report . . . The GAO’s investigation uncovered serious issues with the VA’s record-keeping, its protection of whistleblowers, and its handling allegations of misconduct, waste, fraud, and abuse.”

I have previously discussed the GAO’s sixteen recommendations in an earlier blog post.  Of those sixteen recommendations, the VA concurred with nine of them and partially concurred with another five.  The congressional letter explains that immediate implementation of the GAO’s recommendations is necessary because the agency must encourage trust and openness in its culture.

These letters address different aspects of improvement needed at the VA.  Senator Tester’s letters highlight the possible politicization of how information is made available to the public.  The letter to Attorney General Sessions asks the VA to hold its senior officials to the same standards as their subordinates—one of the most prominent issues covered in the GAO report.  And finally, the letter to Secretary Wilkie underscores a necessary criticism of the VA: the primary role of the agency is to care for Americans injured or traumatized while defending our nation and, as such, it is unacceptable for agency leadership to tolerate misconduct, let alone encourage it.

However, we should view these signs of progress with just a bit of skepticism.  Senator Tester and the other Democrats on the Committee on Veterans’ Affairs have asked preliminary questions regarding politicization in the FOIA process, which is good, but what happens next? Will they continue to hold the VA accountable for their culture and leadership?  Or will they move on to another issue?  Will Attorney General Jeff Sessions open an investigation to determine whether O’Rourke made unlawful statements in providing false testimony, or will the bipartisan coalition fall upon deaf ears?

Cause of Action Institute will continue to investigate VA mismanagement  and the agency’s efforts to adopt GAO’s recommendations.  But we will also watch the congressmen who have expressed interest in reforming the plagued agency.  The authors of the letters to Attorney General Sessions and VA officials should be applauded for their inquiries, but they should also be committed to following through to the complete reform of the VA.

Chris Klein is a Research Fellow at Cause of Action Institute

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