ICYMI: President and CEO of Cause of Action Institute John Vecchione joined the Lars Larson Show this past Monday, June 18, 2018. Lars Larson, an award-winning television and radio journalist, invited Vecchione on the show to talk about former FBI Director James Comey’s improper use of a personal Gmail account to conduct agency business revealed in a report from the Department of Justice Office of the Inspector General.
06/18/2018
Another Case of Improper Use of Email – This Time it’s James Comey
Update 6/20/18: CoA Institute President and CEO John Vecchione discussed this issue with Lars Larson on 6/18/18. Listen to the interview here.
A bombshell report released last week by the Department of Justice Office of the Inspector General (“DOJ IG”) revealed “numerous instances” where former FBI director James Comey improperly used his personal Gmail account to conduct official FBI business. In response, Cause of Action Institute (“CoA Institute”) has filed Freedom of Information Act (“FOIA”) requests with both the Federal Bureau of Investigation (“FBI”) and DOJ IG. CoA Institute has requested access to all emails sent or received by either Comey or former FBI Chief of Staff James Rybricki on any personal, non-FBI account that was used for official government business.
Although the DOJ IG report cites only five examples of Comey’s email misconduct, the report’s language suggests there may have been more incidents. “We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account on multiple occasions for unclassified FBI business to be inconsistent with the DOJ Policy Statement,” the report reads.
Ironically, the DOJ IG’s investigation of Comey’s leadership during the FBI’s investigation into former Secretary Hillary Clinton’s improper use of a personal email server led to the discovery that Comey and Clinton acted with similar poor judgment. “The IG report raises serious questions about Director Comey’s ‘extremely careless’ use of personal email for official government business while investigating Secretary Clinton for similar conduct,” said Kevin Schmidt, the Director of Investigations at CoA Institute in a comment to the Washington Free Beacon. “The report notes that there were ‘numerous instances’ of Comey using a Gmail account for FBI business, and that’s why we have opened an investigation to uncover the full extent of his problematic use of personal email.”
When government employees use unofficial channels to conduct agency business, the Federal Records Act (“FRA”) triggers certain record-keeping mandates to ensure the records generated through these alternate channels are properly captured and retained in accordance with the law. The law requires that if an employee uses an unofficial email account, he or she must provide a copy of that email to the agency. However, in recent years, CoA Institute has learned of numerous instances of federal bureaucrats using unofficial channels to conduct official business and failing, intentionally or neglectfully, to take measures to comply with agency policy and the FRA.
One of CoA Institute’s guiding principles is that Americans deserve an efficient, effective federal government that works for them, not the politically powerful. At Cause of Action Institute, we advocate for a transparent and accountable government free from waste, fraud, abuse, and cronyism, and as such we have been working to prevent government officials from using personal email accounts to skirt transparency and accountability laws.
In 2016, we filed a lawsuit in the U.S. District Court for the District of Columbia to recover all of former Secretary Colin Powell’s work-related email records from a personal email service provider (AOL) after former Secretary John Kerry and Archivist of the United States David Ferriero failed to act on CoA Institute’s FRA notice and FOIA request. Although CoA Institute later won in court when a U.S. District Court Judge denied the federal government’s motion to dismiss, the State Department responded by saying that the emails were “fatally lost” or, even if the State Department cannot prove fatal loss, their obligation to attempt to recover the documents is excusable if they have no “reason to believe” such records are recoverable. This claim contorts both the FRA statute and existing case law on the question. The emails are not those for the State Department to lose; the emails belong to the American people and their fatal loss is unacceptable.
In the DOJ IG report, Comey stated that he did not have any concerns about conducting FBI business on his personal email “because it was incidental and I was always making sure that the work got forwarded to the government account to either my own account or Rybicki, so I wasn’t worried from a record-keeping perspective[.]”
Unfortunately, the key word in the statement is “I.” Comey asks the American people to trust him, and trust that Comey properly submitted all his documents and emails and records to the FBI system. Sound familiar?
Trust is not good enough. FOIA, FRA, and other transparency laws are in place as a safeguard against officials who abuse the public trust. The American people have a right to be suspicious because we have seen that when official government business is conducted outside official channels, documents and information can be “fatally lost.”
Chris Klein is a Research Fellow at Cause of Action Institute.
05/21/2018
Senate finally confirms President Trump’s nominee for Intelligence Community watchdog
Last week, the Senate finally approved the nomination of former Department of Justice attorney Michael Atkinson to be Inspector General of the Intelligence Community. We commended President Trump on his decision to name Mr. Atkinson as a watchdog back in November 2017. According to one source, part of the long delay in the confirmation process was due to Senate negotiations with the Director of National Intelligence over the firing of Dan Meyer, the Intelligence Community’s whistleblower ombudsman. Yet it is still a sad reflection of the current political climate that Mr. Atkinson’s nomination was pending for roughly six months.
As I have argued previously, one of the most troubling aspects of President Obama’s legacy was his failure to nominate permanent Inspectors General (“IGs”) at many agencies across the federal government. Without presidentially-appointed, Senate-confirmed leadership, there is always a real danger that IG offices will lack the necessary commitment to transparency and accountability in government. Indeed, Senator Ron Johnson has argued that “acting” IGs—who are typically career civil servants—risk being “not truly independent [because] they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”
When President Obama left office, twelve agencies lacked an IG. During his first year in office, President Trump steadily moved to remedy this dearth of leadership, but the pace of new nominations slowed at the end of last year, and much more now needs to be done. According to the Project on Government Oversight, which has been tracking IG vacancies since the Obama Administration, there are currently nine agencies without a permanent watchdog, six of which must be appointed by the White House. This includes vacancies at major Cabinet-level agencies, including the Department of Defense, the Department of Energy, and the Department of Housing and Urban Development. The Department of the Interior, sadly, continues to lack a permanent IG since the previous watchdog left office 3,374 days ago.
Of course, not all the blame should be placed on the inaction or slow decision-making of President Trump. Aside from Mr. Atkinson’s recent confirmation, another four presidential nominations have been pending in the Senate for an average of 236 days. When the White House has moved to fill these watchdog vacancies, the Senate should prioritize its consideration and the confirmation process. Many Executive Branch agencies have substantial budgets, and presidentially-appointed IGs provide a vital internal check on waste, fraud, and abuse.
Ryan P. Mulvey is Counsel at Cause of Action Institute.
05/10/2018
Litigation Update: Cause of Action v. Department of Justice and the House Financial Services Committee’s Attempt to Undermine the FOIA
In July 2017, Cause of Action Institute (“CoA Institute”) sued the Department of Justice (“DOJ”) after the agency refused to produce records under the Freedom of Information Act (“FOIA”) that would have revealed whether the Office of Information Policy (“OIP”) or Office of Legislative Affairs (“OLA”) were involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services. CoA Institute’s FOIA request, which was filed in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.
As a result of litigation, DOJ identified sixteen pages of responsive records. Eleven pages, which represent communications between an “unidentified Executive Branch agency” and DOJ, were withheld in full. One additional record—an email between the Office of the White House Counsel and OIP—was partially redacted, but an attachment—a copy of Chairman Hensarling’s letter—was withheld in full. DOJ defended its treatment of these records by invoking the attorney-client and deliberative process privileges.
Last Friday, CoA Institute moved for summary judgment, rebutting DOJ’s claims and arguing that the agency could not use the attorney-client and deliberative process privileges. With respect to the White House email and attachment, DOJ failed to establish that an attorney-client relationship existed between the White House Counsel and OIP. Assuming the requisite relationship did exist, the email still neither revealed private confidences nor solicited legal advice. It also did not reflect a deliberative or consultative process. Instead, the email was a literal “FYI”—the sort of informational notice that courts regularly compel agencies to disclose:
DOJ also wrongly withheld the email attachment—a copy of Chairman Hensarling’s letter—because the letter is already in the public domain and, in any case, does not reveal confidential information pertaining to the White House or DOJ.
Communications with the “unidentified Executive Branch agency” similarly cannot be exempt under the attorney-client and deliberative process privileges. Although these records may contain legal advice on responding to Chairman Hensarling’s directive, they were shared outside of the Office of Legal Counsel, which is the DOJ component responsible for providing legal opinions to the White House and the rest of the Executive Branch. To maintain attorney-client confidentiality, an agency must not circulate privileged material beyond those officials tasked with providing (or receiving) legal counsel. Here, by involving OLA, which functions as DOJ’s congressional affairs office and does not serve as an “attorney” to other agencies, the “unidentified” agency waived any expectation of confidentiality. Finally, DOJ misused the deliberative process privilege because it failed to explain how these inter-agency communications reflected DOJ’s recommendations or opinions or were otherwise non-factual.
Importantly, DOJ also failed to meet its burden under the new “foreseeable harm” standard. Congress introduced this standard with the FOIA Improvement Act of 2016 to codify the so-called “presumption of openness,” which discouraged the mere “technical” application of exemptions. The FOIA, as amended, now requires an agency, such as DOJ, to explain how specific records can reasonably be foreseen to harm agency interests. DOJ failed to provide a satisfactory argument in this case and did not even mention its obligations under the new standard.
* * *
The public deserves to know how, and to what extent, DOJ was involved in formulating and implementing Chairman Hensarling’s anti-transparency policy. Because Congress is not itself subject to the FOIA, a request for records that have been exchanged with the legislative branch presents unique difficulties. Nevertheless, the law requires that Congress manifest a clear intent to maintain control over specific records to keep them out of reach of public disclosure. As I have argued previously, Chairman Hensarling’s directive is ineffective in this respect. The mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.” Any deviation from this acknowledged standard for defining a “congressional record” would frustrate the FOIA and impede transparent government.
The real-world implications of these sorts of congressional anti-transparency efforts are hardly imaginary or speculative. The House Financial Services Committee has already intervened in a FOIA lawsuit to enforce its directive. (That lawsuit is still ongoing.) And CoA Institute is involved with a lawsuit against the Internal Revenue Service that involves a similarly overbroad effort by the Joint Committee on Taxation to sweep a range of agency records outside the scope of the FOIA. CoA Institute has twice joined with other good government groups to express concern over these developments (here and here). We are hopeful that the courts will put a stop to Congress’s games, and ensure public access to vital records revealing the interaction of the administrative state with the federal legislature.
CoA Institute’s brief is available here.
Ryan Mulvey is Counsel at Cause of Action Institute
03/22/2018
White House Directive on Congressional Oversight Requests Classified as “Presidential Record,” Not Subject to Disclosure under the FOIA
A report published earlier this month by the General Services Administration (“GSA”) Inspector General (“IG”) provides new and illuminating, as well as concerning, details about the White House’s directives to agencies for responding to congressional oversight requests from Democratic legislators and other individual members of Congress. The IG report confirms that during the first seven months of the Trump Administration, the GSA implemented “a series of . . . unpublished policies that effectively amended” its procedures for handling congressional communications, just as the press and transparency community alleged. The report also concludes that the GSA’s latest published guidance, which was released in July 2017, is ambiguous because it does not reflect oral policies still in force and cites to a controversial May 2017 Department of Justice Office of Legal Counsel (“OLC”) opinion that the White House has publicly rejected. Most alarmingly, the IG report identified the underlying written basis for the GSA’s “oral” policy as a White House-created document, which is marked “presidential record” and is therefore “excluded from public disclosure under the Presidential Records Act.”
Cause of Action’s Investigation into the GSA Nondisclosure Policy
For the past year, Cause of Action Institute (“CoA Institute’) has been investigating rumors—now confirmed by the GSA IG—that the White House is directing federal agencies to ignore congressional oversight requests from Democratic legislators and individual Members who are not committee chairmen. Various reports in the media (here and here, for example) have detailed contentious interactions between congressional staffs and employees at the GSA and the Office of Personnel Management (“OPM”). According to some sources, White House attorney Uttam Dhillon is responsible for instructing agencies “not to cooperate” with record requests from the minority.
CoA Institute filed a Freedom of Information Act (“FOIA”) request with the GSA in an effort to verify what the Trump Administration’s actual policy might be. We asked for records concerning the “new policy” cited by the GSA’s Acting Administrator in testimony before Congress. We also asked the GSA for records reflecting directives or guidance originating with the White House. When the GSA finally provided its response, it left much to be desired. The GSA only released two documents: a February 20, 2015 order on congressional and intergovernmental inquiries, which is now obsolete, and an April 15, 2009 White House memo that CoA Institute already had made publicly known in June 2013.
We appealed that final determination, which prompted the GSA to release two additional records created during the Trump Administration. One of those records, a copy of the agency’s “updated Agency policy,” also known as GSA Order ADM 1040.3, was remarkable. As I discussed in a September 2017 op-ed in The Hill, although the White House had by then disavowed the OLC opinion letter as a statement of government-wide policy following harsh criticism by Senator Chuck Grassley, GSA Order ADM 1040.3, which is dated July 24, 2017, expressly cites to the OLC opinion as the GSA’s—and, presumably, the White House’s—official policy.
We then wrote to the GSA seeking public clarification, but that request went unanswered.
Our efforts to investigate OPM have been less fruitful. Last month, the agency responded to our FOIA request by disclosing a single email linking to the OLC opinion, but without further details concerning the opinion’s implementation or continued relevance. Our appeal challenging the adequacy of OPM’s search efforts, as well as its redaction of the responsive email, is pending.
The GSA’s Confusing Use of “Oral” Policies for Nondisclosure
The IG’s report goes into significant detail describing the evolution of the GSA’s nondisclosure policy under President Trump, but a few key findings stand out:
- The GSA developed a series of “oral” policies that “effectively amended” the GSA’s published procedures for dealing with Congress. These policies were formulated by the agency’s Senior White House Advisor and Acting General Counsel and disseminated throughout different agency components through “small in-person meetings,” “telephone calls,” and “hallway conversations.” This sort of official but unwritten policy development violated the GSA’s “internal policymaking directives.”
- This “oral” policy was continually modified. In March 2017, for example, the GSA decided to permit the disclosure of publicly available information or records that would otherwise be available under the FOIA to a non-congressional requester. At this point, the GSA’s FOIA office started to process certain requests before providing records to the congressional affairs office for final release. These changes were based on “guidance”—presumably, written—from the White House.
- In another instance, the GSA started to treat congressional requests under the “Seven Member Rule” as seven individual requests, thereby avoiding mandatory disclosure as required by 5 U.S.C. § 2954. This development was prompted by Ranking Member Elijah Cummings and other Democrats on the House Oversight Committee investigating the Trump Old Post Office lease.
- Once the GSA’s FOIA office started processing congressional requests, agency employees were unsure whether the FOIA’s procedural safeguards—such as the right to file an administrative appeal—applied.
- In one remarkable case, despite instructions from Chairman Jason Chaffetz of the House Oversight Committee to produce agency records to both the Majority and Minority staffs, the GSA intentionally neglected to do so. A senior agency advisor reported to the GSA White House Liaison and Senior White House Advisor that the “cc to [Ranking Member] Cummings” had been “take[n] off” the response to Chairman Chaffetz.
- The IG concluded that GSA’s nondisclosure policies did not contain vital whistleblower protection language required under federal law. Although the GSA has contested the IG’s interpretation of the law and its application in this context, the agency nevertheless agreed to change its published policies to include explicit whistleblower protection language.
The “Presidential Record” Underlying the Ongoing Problem
On May 19, 2017, the White House Office of Legislative Affairs provided the GSA with some “written guidance” on congressional oversight requests. This guidance apparently reflected the “oral” policy that had already developed at the GSA, which limited disclosures for non-chairmen to publicly available or publicly accessible records. This policy, and the underlying White House guidance, were the basis for the GSA Acting Administrator’s testimony before Congress. And it is this guidance that was marked as a “presidential record,” thereby removing it from access under the FOIA.
Continued Uncertainty about the GSA’s Actual Policy
According to the IG, GSA Order ADM 1040.3 is ambiguous because it does not reflect the unwritten policies that have remained in place at the GSA as late as December 2017, as reported by some officials. Indeed, two weeks after the order’s publication, and after the White House rejected the OLC opinion, the GSA’s Acting Commissioner for Public Buildings, in testimony before Congress, reiterated the GSA’s practice of responding only to committee chairmen. He intimated that this was “in line with the current Administration’s policy on responding to oversight questions.”
Ultimately, the lesson here is that unwritten policies, besides being bad from a transparency perspective, lead to confusion and inconsistency. The GSA IG concluded that many high-ranking officials at the GSA never fully understood the actual policy was for responding to congressional requests. Nor could they answer vital questions: What was the legal basis, if any, for the GSA’s policy? What was an “oversight” request? Were congressional members in their individual capacity really subject to the FOIA with all of the statute’s procedural safeguards? What role did the White House have in formulating the policy? Was it agency-specific, or indicative of a wider, government-wide policy change?
In response to the IG’s revelations, the GSA has agreed to remove any reference to the OLC opinion in Order ADM 1040.3. But the agency still insists on qualifying its commitment to processing disclosure requests from individual members based on unidentified “longstanding agency and Executive Branch policies.”
CoA Institute will continue to investigate this matter and the extent to which “oral” policies have influenced the processing of congressional oversight requests at other agencies. In the meantime, we have submitted a new FOIA request to the GSA, explicitly seeking the so-called “presidential records” that were the basis for the GSA’s unwritten policies. It is not clear why the Presidential Records Act should even apply in this instance.
Ryan Mulvey is Counsel at Cause of Action Institute
03/14/2018
GAO audit of Office of Special Counsel referrals under FOIA reveals weakness in the statute
An audit report released yesterday by the Government Accountability Office (“GAO”) provides alarming details concerning the lack of referral of cases of wrongful withholding under the Freedom of Information Act (“FOIA”) to the Office of Special Counsel (“OSC”). Since at least 2008, neither the Department of Justice (“DOJ”) nor any federal court has referred a single case to the OSC so that the agency could investigate whether disciplinary action would be warranted for the arbitrary or capricious withholding of records litigated in court. The publication of the audit coincided with the testimony of the GAO’s Director of Information Technology Management Issues, David Powner, at a hearing before the Senate Judiciary Committee.
OSC’s Investigatory Role under the FOIA
Congress envisaged a special role for the OSC in policing agency behavior with respect to the withholding of records. Section 552(b)(4)(F) of the FOIA obliges the OSC to investigate whether disciplinary action is warranted against an official responsible for withholding records if a federal court has (1) ordered the production of those records, (2) assessed reasonable attorney fees and litigation costs against the government, and (3) issued a “written finding” that the case “raises questions whether agency personnel acted arbitrarily and capriciously with respect to the withholding.”
Once these conditions are met in any given case, the Attorney General must refer the matter for investigation to the OSC, and the agency at issue must take any corrective action recommended by the OSC. If the government fails to comply, a court can punish a responsible official with contempt. Apart from the FOIA, the OSC also has independent authority under 5 U.S.C. § 1216(a)(3) to investigate most allegations of arbitrary or capricious withholding of records.
No Referrals Have Been Made to the OSC Over the Past Ten Years
After examining various records and interviewing officials at the DOJ and OSC, the GAO concluded that, since 2008, no court orders have issued in a FOIA lawsuit such that referral to the OSC was appropriate. At the same time, between 2013 and 2016, requesters in at least six cases nevertheless sought a court-ordered referral to the OSC. In all six cases, the court denied the requests.
The referral provisions of the FOIA are toothless in practice. According to one source, the OSC has investigated only two possible cases of punishable wrongdoing. In Holly v. Acree, the OSC concluded that it could not determine the “officer or employee who was primarily responsible for the [wrongful] withholding.” And in Long v. Internal Revenue Service, the OSC closed its investigation without any public findings. Furthermore, despite numerous allegations and some instances of field investigation over the years, it does not appear that the OSC has ever initiated a disciplinary proceeding under Section 1216(a)(3).
Judicial decisions likewise exemplify the reticence of courts to refer cases to the OSC. The judicial branch is already highly deferential to the government when assessing justifications for the treatment of FOIA records. That deference appears to affect the analysis of whether it is appropriate to issue a “written finding” that an official or employee may have personally acted wrongfully. For example, in the case of Kempker-Cloyd v. Department of Justice, No. 97-253, 1999 U.S. Dist. LEXIS 4813 (W.D. Mich. 1999), the court acknowledged that an agency failed to act in a timely manner, to conduct adequate searches, or to comply with the FOIA “in good faith.” On further order, the court also determined the agency was liable for attorney fees and litigation costs. Yet the court still did not believe there was evidence suggesting the agency acted in an arbitrary or capricious manner. In a more recent case, Consumer Federation of America v. Department of Agriculture, 539 F. Supp. 2d 225 (D.D.C. 2008), when faced with a motion to refer the case to the OSC after the agency conducted an inadequate search and lost responsive records, the court sidestepped the issue altogether by ordering the agency to file a supplemental declaration confirming its promise—made during oral argument—to revise the process for handling requests for electronic records and to correct the problems that led to the loss of the records at issue. Countless other examples of judicial refusal to engage with the OSC referral provisions abound.
The FOIA Should Be Strengthened to Hold Agency Officials Responsible for Wrongful Withholdings
As it stands, agency officials are effectively unaccountable for their decision-making under the FOIA. There is no punishment for an agency when it mishandles a request or forces a requester to file a lawsuit to obtain records or fight wrongful withholdings. Indeed, it is the taxpayer who ends up footing the bill for the government’s litigation costs. The individuals responsible for processing requests, therefore, have little incentive aside from their personal commitment to transparency to ensure that agency decision-making is consistent with the law. Even if a requester prevails in court, he faces the uphill battle of securing attorney fees and recoverable litigation costs, not to mention the tremendous difficulty of obtaining a written finding of arbitrary and capricious behavior on the part of the agency.
The requester community deserves better. If agency officials knew that they would be held personally responsible for their administration of the FOIA, we would have a more efficient disclosure regime and a more transparent government. The OSC can and should play an important role here, but the FOIA, as implemented, does not currently facilitate that endeavor. Congress should undertake efforts to remedy the situation.
Ryan Mulvey is Counsel at Cause of Action Institute
11/9/2017
The Forgotten 21 Disks: The IRS’s Unlawful Disclosure of Taxpayer Data to DOJ & FBI
Just as the Internal Revenue Service (“IRS”) targeting scandal was beginning to fade from Washington’s collective memory, it returned to the forefront of the national political scene with a vengeance. It started with the Department of Justice (“DOJ”) decision in early September to forgo further criminal investigation of Lois Lerner and other IRS officials because of allegedly insufficient evidence of “criminal intent.” Shortly thereafter, the Treasury Inspector General for Tax Administration’s (“TIGTA”) released an audit review that expanded upon the watchdog’s 2013 report, which had concluded the IRS inappropriately selected conservative tax-exempt applicants for heightened scrutiny based on their names and policy positions rather than objective criteria. TIGTA’s new report found that the IRS had similarly mistreated left-leaning groups. As my colleagues argued, TIGTA’s findings hardly diminished the import of the earlier investigation, but “widen[ed] the scope of IRS misconduct and increase[ed] the urgency for further changes at the agency.” More importantly, the report impliedly highlighted the absence of any serious attempts to root out the cause of IRS politicization.
While TIGTA announced its revised findings, the IRS rolled out a work plan for the Tax Exempt and Government Entities division—the component in which Ms. Lerner worked—which signaled efforts to develop “data-driven” criteria and “analytics” for IRS decision-making. That, of course, raised the curious question of what exactly the IRS meant by “data-driven” and what criteria it previously had been using to assess tax-exempt compliance. And this development was followed in quick succession by a DOJ announcement that it had reached a settlement agreement with some of the so-called “Tea Party” groups, who successfully argued their constitutional rights had been violated by the IRS. Finally, Commissioner Koskinen ended his tenure as head of the IRS and, on the way out the door, tried—yet again—to downplay TIGTA’s role in exposing IRS wrongdoing. “Sometimes they get a little carried away with their reports,” he suggested.
Lost in all this news—particularly, the DOJ decision not to reopen a criminal investigation—was the government’s stunning admission that confidential taxpayer data was, in fact, unlawfully disclosed by the IRS to the DOJ Public Integrity Section and the Federal Bureau of Investigation. As Cause of Action Institute (“CoA Institute”) reported last year, the DOJ Inspector General (“DOJ-OIG”) confirmed that “protected taxpayer information was included on compact discs (CDs) that the IRS provided to the Department [of Justice] in response to a Department request.” Those infamous twenty-one disks contained more than 1.1 million pages of return information on different tax-exempt groups. DOJ-OIG summarily concluded that the “matter does not warrant further investigation.” TIGTA, which was also alerted to the unlawful disclosure, refused to comment.
DOJ ostensibly sought this trove of non-public information as part of the Obama Administration’s efforts to prosecute exempt entities for engaging in prohibited political activity. Given the pattern of IRS abuse and politicization in previous administrations, however, those stated goals were always suspect, particularly given Ms. Lerner’s involvement. Now, in light of TIGTA’s revelations about the scope of the IRS’s targeting, progressives should be as alarmed as conservatives about the lack of accountability for one of the largest and most significant breaches of taxpayer confidentiality laws in U.S. history.
When it confirmed that taxpayer data had been mishandled, DOJ-OIG also claimed that DOJ informed Congress about the unlawful disclosure. We filed a Freedom of Information Act (“FOIA”) request last year to investigate the matter. That request has gone unanswered. We filed two additional follow-up requests last month (here and here), one of which also seeks records about the processing of the 2016 request. To date, the authorities have refused to hold anyone at the IRS or DOJ accountable for the wrongful disclosure of countless pages of Americans’ private tax information. The importance of these records cannot be overstated. CoA Institute remains committed to bringing them to public light.
Ryan P. Mulvey is Counsel at Cause of Action Institute