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10/15/2018

Cause of Action Institute Lawsuit Seeks to Overturn DOJ’s restrictive FOIA guidance

CoA seeks to correct the definition of a “record” to prevent federal agencies from unnecessarily redacting public information

Washington, D.C. (Oct. 15, 2018) – Cause of Action Institute (CoA Institute), a government watchdog organization, today filed a lawsuit against the U.S. Department of Justice (DOJ), challenging the Department’s definition of a “record” under the Freedom of Information Act (FOIA). DOJ’s guidance document classifies “records” only as the material requested in a FOIA request. This allows agencies to break a single record into multiple smaller records, redacting information that would otherwise be public and not meet allowable exemptions under the FOIA statute (e.g. releasing a single paragraph while redacting the rest of an email as a “nonresponsive record”). DOJ’s policy unnecessarily restricts public information that should not be redacted.

James Valvo, counsel and senior policy advisor at CoA Institute, issued the following statement:

“DOJ’s FOIA policy and misreading of the definition of a record under FOIA actively seeks to restrict access to public information beyond the scope of federal law. This is poor public policy, and an attempt to undermine laws that require the government remain transparent and accountable.”

Background:

  • The U.S. Department of Justice FOIA guidance document allows the agency, and others that rely on its guidance, to segment unified records into multiple smaller records to avoid disclosure.
  • This case seeks to establish, for the first time, a binding definition of a “record” under the FOIA.
  • Courts have held numerous times that FOIA contains only nine exemptions and agencies may not use “nonresponsive” as a tenth. (for example, personal identifying information, records that pertain to national security, etc.)
  • For more background on the legal issue, click here.

Attachments:

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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10/8/2018

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

“[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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09/14/2018

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

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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09/14/2018

Federal judge rejects DOJ’s use of attorney-client, deliberative process privileges to hide communications with the White House Counsel from public disclosure

Judge James Boasberg of the U.S. District Court for the District of Columbia yesterday granted in part Cause of Action Institute’s (“CoA Institute’s) motion for summary judgment in a Freedom of Information Act (“FOIA”) lawsuit against the Department of Justice (“DOJ”). Judge Boasberg vigorously rejected DOJ’s attempt to withhold records of communications with the White House under the attorney-client and deliberative process privileges.  CoA Institute filed its lawsuit in July 2017, after DOJ refused to produce records that would have revealed whether it was involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services.  The underlying request at issue, which CoA Institute submitted in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, had directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with his Committee as “congressional records” not subject to the FOIA.

Judge Boasberg’s most damning holding concerned DOJ’s misuse of Exemption 5 to redact a line from a White House email and to withhold in full an attachment—presumably the letter from Chairman Hensarling—received by several Executive Branch agencies.  As the Court explained:

Indeed, any reasonable individual would reach the same conclusion as the Court after cursorily examining the record at issue.

The sole basis of DOJ’s defense was the declaration a senior agency attorney, who claimed that the White House email reflected a “routine” sort of “consultative exchange” in which Office of Information Policy Director Melanie Pustay was asked for “advice.”  But the Court saw through this self-serving statement and explained that DOJ had failed to meet its burden in proving that the specific record at issue reflected the provision of legal services.  To rule otherwise would tend to turn any correspondence with a government attorney into privileged material.

The Court also failed to see how the withheld material contained any confidential information.  For example, the attachment to the White House email—ostensibly, a copy of the Hensarling letter—was merely one of many substantively identical letters that DOJ admitted were received across the Administration.  There was simply no agency-specific confidential information at issue.

Judge Boasberg further rejected DOJ’s use of the deliberative process to withhold the same White House communications.  Despite the government’s arguments during briefing, after reviewing the records itself, the Court determined that they contained nothing that could be construed as deliberative.

Although the court granted in part CoA Institute’s motion, it also sided with the government over the withholding of eleven pages of records exchanged between DOJ and an unidentified agency.  After reviewing those records, the Court determined that they did, in fact, reflect the agency’s decision-making processes and revealed the solicitation and provision of confidential legal advice.  Moreover, there were no reasonably segregable portions of the records that could be released to CoA Institute. Finally, the court did not resolve the parties’ dispute over the “foreseeable harm” standard that Congress introduced in the FOIA Improvement Act of 2016..

* * *

The Court has ordered DOJ to release unredacted versions of the White House communications. Once these records have been released, we will provide another update addressing their contents.

Judge Boasberg’s opinion is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

 

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08/9/2018

CoA Institute President and CEO John Vecchione Discusses CoA’s Two Lawsuits Against the DOJ

 

Cause of Action Institute (“CoA Institute”) President and CEO John Vecchione appeared on the Daily Ledger to discuss CoA’s two lawsuits against the DOJ for failing to comply with numerous FOIA requests.

The interview comes after CoA Institute filed two complaints against the DOJ in six days for failing to respond to Freedom of Information Act (“FOIA”) requests. CoA’s first suit was a result of DOJ’s failure to respond to three requests in regards to the use of a personal email by  former FBI Director James Comey, former FBI Chief of Staff James Rybicki, and DOJ’s Director of Public Affairs Sarah Isgur Flores.

CoA’s second law suit, filed on behalf of the Daily Caller News Foundation, comes after the FBI failed to respond to a FOIA requesting communication records and work product relating to  Daniel Richman, a “Special Government Employee” (SGE) hired by former FBI Director James Comey. Richman gained notoriety when James Comey admitted to using Richman to leak memos to the media.

 

 

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08/7/2018

Cause of Action Institute Files Suit Against DOJ for Emails Relating to Daniel Richman: Second lawsuit in six days against DOJ for failing to comply with FOIA

WASHINGTON, D.C. – August 7, 2018 – Cause of Action Institute (“CoA Institute”), on behalf of the Daily Caller News Foundation (“DCNF”), filed a complaint against the Federal Bureau of Investigation (“FBI”) seeking access to all communication records relating to Daniel Richman, a “Special Government Employee” (SGE) hired by former FBI Director James Comey. Richman gained notoriety when James Comey admitted to using Richman to leak memos to the media.

John J. Vecchione, president and CEO of Cause of Action Institute issued the following statement:

“For the second time in less than a week, we are compelled to sue DOJ, in this case on behalf of our client, the Daily Caller News Foundation, for failing to follow the law and release emails relating to former FBI Director James Comey and other high ranking and controversial DOJ employees. These are matters of high public concern. This is an unacceptable pattern of behavior and we will not back down in our pursuit of government transparency and accountability.”

In April 2018, DCNF filed a Freedom of Information request (FOIA) requesting “…all communications between the bureau and Mr. Richman concerning his SGE work assignments, all intra-bureau communications about Mr. Richman and his assignments and activities, as well as all work product delivered to Director Comey or to others within the bureau … additionally all of Mr. Richman’s work product whose messages were conveyed to the public in FBI comments, speeches and printed material.”

The FBI confirmed receipt of the FOIA and granted DCNF a media waiver concerning fees. However, since May 7, the FBI has refused to produce the documents or provide an update on the status of the FOIA.

Mr. Richman played a significant role in a contentious matter of government accountability and the records pertain to both the conduct and communications between two high-profile and controversial government officials. Consistent transparency and the subsequent production of these records by the FBI are imperative to maintaining the trustworthiness and integrity of the government.

The full complaint can be viewed below.

Last week CoA Institute filed a lawsuit against the U.S. Department of Justice due to their failure to release Comey’s personal emails that were used in his official capacity.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) nonprofit, dedicated to providing government oversight, transparency and advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.

Media Contact:

Matt Frendewey
matt.frendewey@causeofaction.org
202-499-4231

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08/1/2018

Cause of Action Institute Sues DOJ for Refusing to Release Comey Emails

WASHINGTON, D.C. – Aug. 1, 2018 – Cause of Action Institute (“CoA Institute”) today sued the U.S. Department of Justice (DOJ) for failing to respond to three FOIA requests pertaining to the use of personal email by former FBI Director James Comey, former FBI Chief of Staff James Rybicki, and DOJ’s Director of Public of Affairs Sarah Isgur Flores.

The recent Office of Inspector General (OIG) report on the Hillary Clinton email scandal disclosed that Comey had used his personal email to conduct official business, but that OIG was, “never given access to all the work-related emails.” Comey claimed he either forwarded emails from his personal account to his official account or to Chief of Staff Rybicki. In an unrelated incident last year, Flores was cited as using her Gmail account to issue a statement on behalf of the Attorney General in response to a Washington Post article. CoA Institute filed three FOIAs relating to these matters, and in each case, DOJ failed to respond within the statutory timeframe.

Cause of Action Institute Counsel Ryan Mulvey:

“There is no reason for the U.S. Department of Justice to stonewall and ignore these FOIA requests. The requested emails, even though created or received on personal devices or in personal accounts, are agency records and the public has every right to access them. It should never have been necessary for us to sue the DOJ, the nation’s chief law enforcement body, to force it to abide by its obligations under the FOIA.”

The three FOIA requests include:

  • June 14, 2018 – Office of Inspector General FOIA request for “all emails sent or received by former FBI Director James Comey or former FBI Chief of Staff James Rybicki on a personal email account … conducting official government business, that were acquired or reviewed by” OIG.
  • June 14, 2018 – FBI FOIA request for, “all emails sent or received by former FBI Director James Comey or former FBI Chief of Staff James Rybicki on a personal email account … conducting official government business…”
  • March 2, 2017 – Office of Information Policy FOIA request for, “any email, including attachments, sent by Sarah Isgur Flores on or about March 2, 2017 from a non-governmental email account, containing a statement in response to news reports that Attorney General Jeff Session met with the Russian Ambassador during the 2016 Presidential Election.” CoA Institute also asked for, “all other emails, including attachments, sent or received by Sarah Isgur Flores on a non-government email account that were for the purpose of conducting official government business.”

The 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 free from abuse.

Media Contact:

Matt Frendewey
matt.frendewey@causeofaction.org
202-699-2018

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