OMB Publishes Proposed Revisions to Outdated FOIA Fee Guidelines Following CoA Institute Lawsuit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.

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Cause of Action Institute Joins Coalition Opposing DoD’s Latest Attempt to Create New FOIA Exemption

Cause of Action Institute has signed a joint letter with groups from across the ideological spectrum urging the Chairmen and Ranking Members of the Senate and House Committees on Armed Services to oppose the Department of Defense’s (“DOD”) sixth attempt to undermine the Freedom of Information Act’s (“FOIA”) through a new FOIA exemption.

The DOD proposal would use the FY2021 National Defense Authorization Act to exempt from disclosure “information on military tactics, techniques, and procedures, and of military rules of engagements.” The coalition writes:

The Pentagon’s proposed language would undermine FOIA by creating an unnecessary and overbroad secrecy provision at odds with the law’s goal of transparency and accountability to the public…The Department of Defense, and all federal agencies, already have broad and proper authority to withhold classified information under FOIA exemption one, and to withhold unclassified information under a variety of other statutes… We cannot support the proposed language, but we encourage the Defense Department to work with the committees of jurisdiction over FOIA to address the outstanding concerns and accomplish those mutual goals without codifying language that could be easily abused to keep the public and Congress in the dark about our military.

CoA Institute previously signed a coalition letter pushing back on a similar DoD proposal in 2017.

Read the full letter here.

Cause of Action Institute Challenges Commerce’s Withholding of Section 232 Uranium Report, Using Policy and Practice of Deferring to White House Disclosure Directives

Last year, Cause of Action Institute (“CoA Institute”) stepped up its ongoing battle with the Department of Commerce (“Commerce”) over disclosure of Section 232 secretarial reports by filing a lawsuit against the agency for failure to respond to Freedom of Information Act (“FOIA”) requests seeking access to a final report concerning the national-security effects of uranium imports.  This past week, CoA Institute filed its motion for summary judgment, laying out the case for Commerce’s failure to meet its FOIA obligations and exposing the infirmities of the government’s privilege claims.

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Commerce Department Ignores Congressional Mandate to Release Auto Tariffs Report, Citing New OLC Opinion on Executive Privilege

Last year, Cause of Action Institute (“CoA Institute”) filed two Freedom of Information Act (“FOIA”) requests for a copy of the Secretary of Commerce’s final report to the President under Section 232 of the Trade Expansion Act of 1962 regarding the national security impacts of the importation of automobiles.  That report, which must be prepared prior to the imposition of tariffs, is required by law to be published in the Federal Register, subject only to redaction for classified and proprietary information.  After Commerce failed to publish the report, and refused to release it under the FOIA, we filed a lawsuit to compel disclosure. Learn More

Cause of Action Institute Files Appeal with D.C. Circuit to Secure FOIA Access to Internet Browsing History Records

Arlington, VA (Jan. 16, 2020) – Earlier this week, Cause of Action Institute (“CoA Institute”) filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action Institute v. White House Office of Management and Budget, a Freedom of Information Act (“FOIA”) lawsuit concerning access government officials’ Internet browsing histories.  The appeal seeks to overturn the district court’s determination that such records are outside the scope of disclosure, even when they are created on government-issued computers in the course of official business.  CoA Institute field the underlying lawsuit against the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) in June 2018.

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Recent FOIA Exemption 4 decision highlights problems with SCOTUS’s holding in Argus Leader

Earlier this year, in Food Marketing Institute v. Argus Leader, the Supreme Court radically altered the scope of Exemption 4 under the Freedom of Information Act (“FOIA”).  Exemption 4 protects from disclosure “trade secrets” and “commercial or financial information obtained from a person [that is either] privileged or confidential.”  At issue in Argus Leader was the precise meaning of the term “confidential.”  Rather than accept the long-standing “competitive harm” standard developed by the D.C. Circuit nearly forty years ago, the Supreme Court instead held that “confidential” meant anything “customarily and actually treated as private by its owner.”  As Cause of Action Institute warned at the time, that “cramped reading” of Exemption 4 “failed to grapple with the historical and contextual meaning” of “confidential” and would “make it more difficult for the media and government-transparency groups to conduct oversight of the often-murky nexus between business and government.”

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USDA Adopts CoA Institute’s Recommendations for Improved FOIA Regulations

The Department of Agriculture finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency last year.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More