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05/18/2017

Cause of Action Institute Investigates Possible DOJ Involvement with Congressional Frustration of the FOIA

Cause of Action Institute (“CoA Institute”) filed a Freedom of Information Act (“FOIA”) request with the Department of Justice (“DOJ”) today in response to recent reports that Representative Jeb Hensarling, Chairman of the House Committee on Financial Services, directed the Department of the Treasury and at least eleven other agencies to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

CoA Institute’s request is narrowly tailored to uncover records that could reveal whether the DOJ’s Office of Information Policy—which oversees government-wide compliance with and policy concerning the FOIA—and Office of Legislative Affairs were consulted by Chairman Hensarling, or others, prior to the release of the controversial FOIA directive. The request also seeks records concerning possible White House involvement and whether agencies sought the DOJ’s advice before responding to Chairman Hensarling.

Federal law requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA. Chairman Hensarling’s directive is ineffective, in that regard.  As I have argued elsewhere, 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.” And, as set forth in a coalition letter joined by CoA Institute, ignoring this well-established standard would “improperly restrict the ability of the public to use FOIA” and impede transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute

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05/10/2017

Cause of Action Institute Signs Coalition Letter Opposing Congressional Interference with the FOIA

Cause of Action Institute signed a coalition letter yesterday that urged Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his recent direction to the Department of Treasury and other agencies to treat all records exchanged with the committee as “congressional records” not subject to FOIA, i.e. the Freedom of Information Act.

As I outlined in a recent op-ed published in The Hill, 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.”  The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.

Chairman Hensarling’s letter employs sweeping, generalized language in an ineffective yet blatant attempt to frustrate public access to records of Congress’s dealings with the Executive Branch.  As the coalition letter explains, such “assertions improperly restrict the ability of the public to use FOIA” and indicate a dangerous departure from a commitment to transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute.

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05/8/2017

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, Opinion Contributor

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Read More

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04/27/2017

CoA Institute Highlights Problems with Presidents’ Unilateral Designation of Monuments

Washington D.C. – After President Trump yesterday signed an executive order to review previous presidents’ national monument designations under the Antiquities Act, Cause of Action Institute (“CoA Institute”) today sent a letter to Interior Secretary Ryan Zinke outlining why some designations may have been unlawful.

Signed into law over a century ago, the Antiquities Act authorizes the president to declare federal lands as part of monuments, which restricts how the lands can be used. Records obtained by CoA Institute indicate that some of President Obama’s designations may have resulted from collusion with outside environmental groups, while ignoring feedback from the local stakeholders who would be most harmed.

CoA Institute President and CEO John Vecchione: “Major decisions impacting Americans’ livelihoods, vast public lands, natural resources, and property rights are currently left to the sole discretion of the president. This is contrary to most of our system of government. Presidents failed to substantiate many designations in any meaningful way, beyond the use of a few magic words on the face of the proclamations. Unchecked discretion and lack of recourse to remedy overbroad proclamations has resulted in misuse of the Antiquities Act and undue restrictions on future use of vast swaths of federal lands.”

CoA Institute has submitted more than 10 Freedom of Information Act (“FOIA”) requests to various agencies and executive branch offices involved with national monument declarations.

Evident from government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.  More recent designations, such as the Northeast Canyons and Seamounts Marine National Monument and the expansion of the Cascade-Siskiyou National Monument have even been made in direct contravention of longstanding statutory frameworks established by Congress and trusted by local stakeholders.

To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several of our concerns.

For example, it appears that third-party environmental groups knew about a forthcoming monument designation in the Atlantic Ocean prior to August 2015. However, local fishermen—who would be directly and adversely impacted by the designation— were notified only 12 days before the September meeting. As indicated in records we have reviewed, local fishermen were given only 250 words in a press release informing them of the meeting and seeking input on a then-undefined proposal. In contrast, third party organizations had enough in-depth information in advance of the meeting to build online petitions supporting a monument in the Atlantic Ocean that were pushed out to their members nationwide.

As part of our ongoing oversight, CoA Institute continues to investigate:

  • The role certain Members of Congress played in lobbying President Obama to take unilateral action under the Antiquities Act;
  • Potential collusion between outside groups and the Obama Administration to declare national monuments;
  • Lack of transparency regarding monument designations;
  • Pretextual public hearings relating to predetermined monument designations;
  • The continued acquisition of private lands in and around existing national monuments to expand such monuments; and
  • The legality of agency rulemakings to enforce Antiquities Act designations.

The full letter can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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04/27/2017

John Vecchione discusses FBI lawsuit, Trump dossier on The Derrell Day Show

 

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04/24/2017

A Low Bar for White House Transparency – But Concerns Rising

Citing “national security risks and privacy concerns,” the White House recently announced that it would no longer disclose the contents of its visitor logs to the public, contrary to a policy introduced and maintained (albeit, inconsistently) by the Obama Administration.  According to The New York Times, White House press secretary Sean Spicer went so far as to suggest that disclosure would be “unnecessary, intrusive, or even harmful.”

The Trump Administration’s proffered justification for reversing President Obama’s discretionary disclosure of the logs is overstated. While the Executive Branch has an undeniable interest in some secrecy, the goals of good government are better served when the public has knowledge of those with whom the President—the quintessential public servant—is spending his time, whether in consultation about government policy or on the golf course.  Yet the decision to keep visitor logs secret is only the latest indication of a troubling trend emerging from the Trump White House regarding a lack of support for open and transparent government.

Of greater concern than the discontinuation of the WH visitor logs is the apparent continued use by the Trump administration of the policy known as “White House equities.”

When a member of the public requests records from a federal agency under the Freedom of Information Act (FOIA), that agency will often “consult” or seek the input of another government entity that created any record at issue.  Under the Obama Administration, however, evidence suggested that agencies were sending records to the Office of White House Counsel whenever they were politically sensitive, newsworthy, or otherwise embarrassing to the administration.  The result of this policy was to delay the production of records when they should have been promptly released under FOIA requirements.  Cause of Action Institute even filed a lawsuit in an attempt to reverse President Obama’s overbroad “White House equities” policy.

Shortly after President Trump’s inauguration, we reached out to the new White House Counsel to request revisions to, or elimination of, this damaging policy.  We have yet to receive a response.

Ending “White House equities” review as currently practiced would strike a blow for accountability and the rule of law and would send a strong signal that this administration takes seriously its obligations to the public.  As others have noted, President Obama promised transparency and delivered one of the most secretive governments in American history.  The bar is already low; President Trump can and should do better.

Josh Schopf and Ryan Mulvey are counsels at Cause of Action Institute

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04/21/2017

John Vecchione discusses FBI lawsuit, Trump dossier on The Morning Show with Sean & Frank

 

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