Judge Tanya Chutkan of the U.S. District Court for the District of Columbia ruled last week that the National Oceanic and Atmospheric Administration (“NOAA”) must conduct searches of the private accounts and devices of members of the New England Fishery Management Council for records related to the Council’s approval of the Industry-Funded Monitoring Omnibus Amendment. The Omnibus Amendment is the controversial regulation at issue in Loper Bright Enterprises v. Raimondo, an important case in which the Supreme Court will reconsider the future of Chevron deference next year.
03/15/2022
A Federal Agency Spent Years Fighting to Uphold These Ridiculous Redactions
“11:45 is fine, will be at my desk”
“With the retirement of EXIM Bank’s former Chief Information Security Officer (CISO), EXIM Bank hired a new CISO.”
These are just two lines of innocuous text the Export-Import Bank (“EXIM”) fought to keep redacted in Cause of Action Institute’s (“CoA Institute”) Freedom of Information Act (“FOIA”) lawsuit that began in July 2019. In a final decision released in January 2022, Judge James Boasberg of the U.S District Court for the District of Columbia ruled that EXIM would finally have to disclose this information after years of stonewalling. Learn More
07/28/2021
Litigation Update: Cause of Action Institute Forces Department of Commerce to Release 232 Uranium Report
On the eve of oral argument before the District Court for the District of Columbia, the Department of Commerce says it intends to publish its Section 232 report on the “Effect of Imports of Uranium on the National Security” tomorrow, July 29, 2021, in a just-filed motion:
On July 29, 2021, Commerce intends to publish the Uranium Report on its website and, on August 2, 2021, it intends to publish the report in the Federal Register. Undersigned counsel has been authorized to represent that the Office of the President has agreed with this course of action.
Cause of Action Institute originally filed FOIA requests for the report over two years ago on April 15, 2019, and filed suit on September 10, 2019.
Ryan Mulvey, counsel at CoA Institute:
We are pleased that the Department of Commerce finally decided to provide transparency on this report, but It should not have taken a FOIA lawsuit to force release when the 232 statute requires publishing reports in the Federal Register. 232 reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.
The remaining issues in the lawsuit include a “policy or practice” claim, which CoA Institute is using to seek judicial review of Commerce’s systematic approach of denying access to Section 232 reports, and the failure of agency to provide the response letter from the Department of Defense.
232 Uranium Report Documents:
- Apr. 15, 2019: FOIA requests to Department of Commerce and Bureau of Industry and Security
- Sept. 10, 2019: Complaint
- Section 232 Uranium Report lawsuit docket: CoA Institute v. Department of Commerce (1:19-cv-02698)
More information about CoA Institute’s FOIA litigation for the 232 Auto-Tariff report:
- Feb. 19, 2019: CoA Institute Files FOIA Requests for Commerce’s Section 232 Auto-Tariff Report
- Mar. 21, 2019: Cause of Action Sues Commerce Dept. for Failing to Release Auto-Tariff Report
- May 17, 2019: CoA urges release of secret 232 auto report in response to POTUS proclamation
- June 19, 2019: Commerce Provides Poor Excuse in First Answer on Secrecy of 232 Auto Tariff Report
- Aug. 19, 2019: Department of Commerce’s Motion for Summary Judgement
- Sept. 3, 2019: CoA Institute’s Opposition and Cross-Motion For Summary Judgment
- Section 232 Automobile Report lawsuit docket: CoA Institute v. Department of Commerce (19-cv-00778)
06/4/2021
DC Circuit Rejects DOJ Attempt to Use “Non-Responsive” as a Tenth Exemption to FOIA
This week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Cause of Action Institute in its challenge to the Department of Justice’s (“DOJ”) attempt to segment records as “non-responsive” in order to avoid disclosure under the Freedom of Information Act (“FOIA”).
The records at issue were DOJ responses to questions from members of Congress known as Questions for the Record (“QFR”). The Circuit shot down DOJ’s argument that it could withhold individual questions and answers as non-responsive within a single QFR document:
DOJ’s position in this case is that each individual question and its corresponding answer within each of the self-contained QFR documents constitutes a separate “record” under FOIA. Resting on this claim, DOJ maintains that if it determined that a particular question-and-answer pairing within a QFR document was unresponsive to Appellant’s FOIA request, DOJ could decline to disclose the material even though none of the material in the QFR document was exempt from disclosure. Though our case law provides for a “range of possible ways in which an agency might conceive of a ‘record,’” we reject DOJ’s approach as an untenable application of FOIA, outside the range of reasonableness.
Unfortunately, the Circuit, while reversing the District Court on standing, dismissed Cause of Action Institute’s second claim challenging to DOJ Office of Information Policy’s guidance on defining a record under FOIA as unripe.
Read more about the decision at Yale Notice and Comment.
Background:
October 30, 2020: Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act
Feb. 8, 2017: Defining a “Record” under FOIA
Aug. 17, 2016: There is No Tenth Exemption
02/25/2021
Federal Judge Rejects Export-Import Bank’s Arguments for Refusing to Disclose Public Records
Judge James Boasberg of the U.S District Court for the District of Columbia ruled this week that the Export-Import Bank (“EXIM Bank”) must produce a variety of records it initially withheld in response to two FOIA requests from Cause of Action Institute (“CoA Institute”). CoA Institute’s September 20, 2018 FOIA request sought all communications to or from EXIM leadership regarding key EXIM stakeholders and beneficiaries. The May 2019 FOIA request sought information after a Government Accountability Office (“GAO”) report found EXIM potentially provided billions in financing to companies with delinquent federal debt by failing to use a readily available federal database. Learn More
10/30/2020
Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act
For decades, the Freedom of Information Act (“FOIA”) has provided the public with access to records of the Executive Branch. Yet the definition of a “record” has never been definitively established. To be sure, there has been a great deal of litigation over the meaning of an “agency record” (as opposed to a congressional record or a personal record). But the antecedent question of what exactly a “record” is has only recently started working its way up through the courts. Cause of Action Institute (“CoA Institute”) filed its opening brief today in the U.S. Court of Appeals for the D.C. Circuit as part of its efforts to get some resolution to this important question. Learn More
05/4/2020
OMB Publishes Proposed Revisions to Outdated FOIA Fee Guidelines Following CoA Institute Lawsuit
The White House Office of Management and Budget (“OMB”) published a notice of proposed revisions to its Uniform Freedom of Information Act Fee Schedule and Guidelines in today’s issue of the Federal Register. OMB first published the guidelines, which are binding on all agencies subject to the Freedom of Information Act (“FOIA”), over thirty-years ago. They have never been updated, despite repeated requests from the transparency community, the FOIA Federal Advisory Committee, and the Archivist of the United States. The much-anticipated revisions aim to improve FOIA administration and ensure more equitable resolution of fee issues across the government. OMB’s notice comes amid a lawsuit filed by Cause of Action Institute (“CoA Institute”) to force such an update.