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03/15/2017

Selective Memory: Presidential Control of Press and Information

Among people who know and use the Freedom of Information Act and similar laws to discover and report what the government is doing, this week is known as Sunshine Week, a time to promote government transparency. But a disorienting fog has settled in.

When was the last day that the news did not include a report about the President’s use of direct social media to avoid traditional press outlets whom he regularly disparages for using unlawfully leaked information to unfairly report what the government is doing and planning? Allegations abound that the administration regularly imposes unprecedented policies that restrict or remove access to government information and impede contacts between the press and knowledgeable civil servants.  For example:

“White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press.”

“It’s turning out to be the administration of unprecedented secrecy and unprecedented attacks on a free press.”

The “administration’s steadily escalating war on leaks, the most militant I have seen since the Nixon administration, has disregarded the First Amendment and intimidated a growing number of government sources of information — most of which would not be classified — that is vital for journalists to hold leaders accountable.”

The administration’s anti-leak effort “targets not only national security departments and agencies but most federal bureaucracies from the Peace Corps to the Social Security Administration and the Education and Agriculture Departments.”

“[W]e now have evidence of a pattern of anti-media behavior…. The suspicion has to be that maybe these ‘leak’ investigations are less about deterring leakers and more about intimidating the press.”

The administration’s “recent effort to stem leaks in the federal workforce doesn’t just exemplify … cluelessness. It verges on being a parody of it.”

The depth of dismay is hard to overstate. An executive editor of The New York Times put it this way: “I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush’s first term.”

But none of the above-linked stories is about President Trump or current events. All of these complaints were written about President Obama early in his second term.

This selection of stories about how the Obama administration manipulated the media and restricted independent access to government information is representative. If anything, it’s too cautious.  Readers can find much more, and much worse, reported by the most respected of voices. Even so, complaints about the relationship between the press and the Obama and Trump administrations and their unprecedented, programmatic restriction of access to information are strikingly similar.  Perhaps such practices sting more sharply after a President takes the oath and starts to govern.  Politico reports that the President’s aides are “obsessed with taking advantage of Twitter, Facebook, YouTube and every other social media forum, not just for campaigns, but governing.” Yet that story, too, was about President Obama, not President Trump.

Controlling information in service of a president’s political objectives is not new. It is not sui generis and did not spring forth fully formed like Athena from Zeus’s head—or President Trump’s.  The current administration has taken another step in a well-known progression, and not a big one at that.  In historical context we can recognize it without surprise as the next manifestation of Leviathan’s thirst for ever more power and control.  Bob Schieffer, after decades as a Washington correspondent and broadcast news anchor, sums up the situation this way:  “When I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now.”

Mike Geske is counsel at Cause of Action Institute

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03/15/2017

Fighting Confusion and Complacency to Keep the IRS Accountable

It seems like a simple idea – the Freedom of Information Act (FOIA) allows any interested citizen to request documents from the people and agencies who exercise power over them. Elected officials have called it “our nation’s premiere transparency law” and one which serves a “crucial need … for open access to government information.”  Unfortunately, as one recent case shows, the process rarely works this way, leading to frustrating and sometimes bizarre results.

In 2014, Cause of Action Institute became concerned that lawyers employed by the Tax Division of the Department of Justice (DOJ) were being detailed to work at the White House. At least two of these attorneys had access to the confidential taxpayer information of administration opponents because of their prior work on lawsuits connected to the IRS “targeting” scandal, and giving them this kind of assignment was unprecedented.  Taxpayer information would normally be kept private from White House officials, including the president, but now a pipeline had been opened where such information could reach political appointees. [See our investigative report discussing this issue in greater detail]

IRS quotes[Excerpts from IRS letters complaining about having to search its own records. CoAI would later discover a search had already taken place]

The IRS has a long history of misusing tax information, one that reaches as far back as FDR. Without proper procedures or training, the same kind of misconduct will inevitably happen again no matter which political party is in charge.  To find out more about the attorney transfers and whether any steps had been taken to safeguard taxpayer privacy, we submitted a FOIA request to the Internal Revenue Service (IRS) for e-mails between three attorneys assigned to the White House and the IRS division at the heart of the targeting scandal.

The request was sent in January 2014. The first reply arrived a month later, but it was merely notification that the agency would be “unable to send the information” within the 20 business days required by FOIA.  A second delay letter arrived in May, followed by a third delay in August and yet another delay in December.

Finally, in April of the following year – a full 282 business days after the 20 business-day deadline – we received a response. But it was not the e-mails we requested; it was a notice that our request was now too broad and would be closed because searching the e-mails of three people was “an unreasonable burden upon the IRS.”  Even if this were true, which seemed very unlikely, the agency had violated its own rules by dragging out the process and then failing to give us a chance to narrow the request before rejecting it.  We pointed out these problems in an appeal of the IRS decision, but the agency refused to acknowledge these problems and again rejected our request.

In an attempt to figure out how the process had gone so wrong, we submitted another FOIA request in May 2016 requesting the “processing notes” for the original request.  These notes document what happens to a request once it arrives at a government agency.  They are internally made, follow a particular format, and should be among the simplest of documents to locate and share.  Yet the first delay letter soon arrived, and another one three months later.  Not wanting to wait for a third delay notification, we filed a lawsuit against the agency to get a full explanation of what happened.

Such lawsuits are often required to get a meaningful response from the government, and ours finally forced the IRS to release the processing notes for our original request. So what was the explanation for the agency refusing to conduct a simple search – and taking over a year to say so?

Apparently, there wasn’t one. The IRS tax law specialist processing the request had marked in her records all the way back in December 2014 that a search had been done and “produced no documents.”  This happened four months before the IRS called our request “an unreasonable burden,” seven months before the agency claimed it was “unable to initiate a search” at all, and a full two years before we filed suit just to discover the IRS could have saved everyone time and money simply by reporting its original findings.

Why would government officials compare our request to “an all-encompassing fishing expedition” if they already knew there weren’t any fish to catch? The answer, if there is one, remains to be seen.  The original FOIA request is the subject of a separate and ongoing lawsuit, but the IRS has not yet produced any responsive documents.  If no improper communication took place between the lawyers transferred to the White House and their former IRS colleagues, then that is good news.  If no ethics training was given to those lawyers, then that good news is merely a coincidence.  Whatever the truth turns out to be, it is a worrying sign that a simple request can result in years of delays, constant obstruction, contradictory answers, and no solid explanation for any of these.

John McGlothlin is counsel at Cause of Action Institute

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03/14/2017

CoA Institute Files Lawsuit for ObamaCare Records

Washington, D.C. – Cause of Action Institute (“CoA Institute”) filed a lawsuit in the U.S. District Court for the District of Columbia after the Department of Health and Human Services (“HHS”) failed to disclose records about the potential misuse of taxpayer information to market the Affordable Care Act (“ACA”), as well as records on the funding of two controversial ACA programs.

The lawsuit follows three Freedom of Information Act (“FOIA”) requests to HHS and its subsidiary agency, the Centers for Medicare and Medicaid Services (“CMS”), seeking records relating to obligations under the transitional reinsurance program and the risk corridors program, as well as attempts to market ObamaCare to individuals who declined coverage by using information obtained from individual federal tax returns. The agencies failed to produce any responsive records well past the applicable FOIA time limits.

Cause of Action Institute President and CEO John Vecchione: “It appears that senior Obama administration officials acted against taxpayers’ interests and disregarded the law to make ObamaCare appear more successful. Under the law, Americans’ tax information may be used to determine eligibility for subsidies, but not to market ObamaCare to individuals who have already declined to enroll. Disclosures of taxpayer information by the IRS raises serious privacy concerns. As Congress continues its efforts to repeal and replace the ACA, it’s more important than ever for HHS to be transparent and forthcoming about ObamaCare’s failures and missteps in implementation.”

Background

Taxpayer Information: To boost enrollment in ACA programs, it appears the Obama administration attempted to market the ACA to individuals who declined coverage by using information obtained from individual tax returns. A fact sheet released by CMS highlights its plan to “conduct outreach to individuals and families who paid the fee for being uninsured, or claimed an exemption from that fee, for 2015.” Under the ACA, however, tax information may only be used to determine ACA subsidy eligibility; it may not be used to market the ACA to individuals who have already declined to enroll. Taxpayer information disclosures by the IRS to an unknown number of individuals at CMS and throughout the government raises serious legal and privacy concerns.

Risk Corridors: Since its enactment, the ACA has faced considerable funding issues. The risk corridors program was supposed to collect payments from insurers with lower than expected losses and redirect the money to subsidize insurers with higher than expected losses. Because of low enrollment and monetary shortfalls, a CMS memorandum announced that funding for the risk corridors program would not be available to insurers in 2015. The memorandum, however, appears to invite insurers to sue CMS and then settle with the Department of Justice (“DOJ”) to obtain funding, which would constitute an end-run of a provision enacted by Congress in 2014 to prevent shifting funds into the risk corridors program and a violation of DOJ guidance regarding “backdoor bailouts.” Obtaining risk corridor funding through the DOJ Judgment Fund would be an illegal misuse of appropriated taxpayer money.

Reinsurance Program: Section 1341 of the ACA requires the HHS to return payments to taxpayers under the transitional reinsurance program. Under this program HHS collects reinsurance contributions from health insurance providers and third party administrators on behalf of group health plans. In 2014, HHS was supposed to collect $10 billion in payments to health insurers who enroll high-risk individuals and an additional $2 billion in contributions to be deposited directly to the U.S. Treasury. Unfortunately for taxpayers, it appears when HHS collected less money than required by the ACA, the agency violated the law by allocating all funding to health insurers, depriving taxpayers of billions of dollars.

The full complaint can be found here

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

 

 

 

 

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03/13/2017

Government Obligated to Recover Colin Powell’s Emails

Washington, DC – Cause of Action Institute (“CoA Institute”) today filed its opposition to the government’s motion to dismiss a lawsuit to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their statutory obligations to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc.  CoA Institute filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero both failed to act on a CoA Institute Federal Records Act (“FRA”) notice and Freedom of Information Act (“FOIA”) request.

Cause of Action Institute President and CEO John Vecchione: “The law requires an agency or the Archivist to initiate action through the Attorney General to recover unlawfully removed records, especially when initial remedial efforts have failed.  This is a mandatory obligation that cannot be sidestepped.  Whether AOL no longer has Secretary Powell’s email records in its systems is unproven.  More importantly, the government cannot point to any evidence that more intensive, forensic recovery methods—like those employed in the case of Secretary Clinton—might lead to the recovery of these important and historically-vital State Department records.”

In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Powell’s work-related email.  After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked that Powell contact AOL to see if anything could be retrieved.  Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so.

The government now argues the case should be dismissed because CoA Institute cannot show that involving the Attorney General will result in the recovery of Powell’s email.  That argument is faulty on both the law and the facts.  As to the law, the government confuses the nature of an agency head’s non-discretionary obligation under the FRA, which requires it to initiate action through the Attorney General to recover unlawfully removed records.  This requirement is all the more important when an agency’s or the Archivist’s remedial recovery efforts have proven fruitless.

Though the State Department and NARA exerted minimal effort to recover Powell’s email records, they failed.  Moreover, the government has yet to prove that the Attorney General could not achieve that recovery.  Many State Department officials believed that federal records that had been deleted from Secretary Hillary Clinton’s private email server were unrecoverable, for example, but the FBI retrieved many of those records using forensic techniques.  The same could be done here, assuming AOL cannot in fact access or recover Powell’s records through less intensive means.

Although the government argues that Powell’s email records are no longer in AOL’s system, that allegation depends on unreliable hearsay.  The State Department relies on the representations of Powell’s secretary, but an email uncovered by CoA Institute through FOIA shows that this representative received only vague details about an apparent phone conservation between someone at AOL and a staff member of the House Oversight Committee, during the course of which the unnamed AOL employee indicated that AOL no longer had Powell’s email.  The details of the phone call, the exact content of the representations made, and the reasons for why AOL reached the conclusion it did are all unclear, but even assuming the truth of the claim, it does not speak to the ability of the government to recover Powell’s email through other means.

Cause of Action Institute’s opposition brief can be accessed HERE.

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02/8/2017

Defining a “Record” under FOIA

The Freedom of Information Act has provided the public with access to federal agency records since the mid-1960s.  As hard as it may be to believe, the definition of a “record” is still not established.  There has been a great deal of litigation over the definition of an “agency record” (as opposed to, for example, a congressional record or a personal record), as those are the only types of records that are accessible through FOIA.[1]  But the antecedent question—what exactly is a “record”—has not been litigated.

The U.S. Court of Appeals for the D.C. Circuit recognized this gap in its important decision last year in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).[2]  In that case, the circuit court held that agencies may not use “non-responsive” as a redaction tool to withhold information within an otherwise responsive record.  I discussed that issue in a previous post titled There is No Tenth Exemption.  The circuit court, however, did not define a “record” in that case.

Cause of Action Institute filed a FOIA request with the Department of Justice (“DOJ”) to determine how it would respond to AILA and how it would attempt to define a “record.”  We asked for an email chain that the agency had previously produced to us with most of the information redacted as non-responsive.  In making this second request, we specifically asked for the entire email chain and drew the DOJ’s attention to the AILA decision.  Instead of removing the offending “non-responsive” redactions, however, the DOJ contended that each email in the chain—and in fact each header of each email—was a separate record.  The agency then withheld those supposedly separate records as “non-responsive.”  Compare the full original here and the full re-produced record here.  This approach makes a mockery of AILA; so we filed suit.  

Today, CoA Institute filed its Cross-Motion for Summary Judgment arguing among other matters that the DOJ’s approach to defining a record is untenable.  The DOJ has taken the position, in recently issued guidance from its Office of Information Policy, that the interplay between the subject matter of the request and the content of agency documents define the “nature of a FOIA record” in response to that request.  The agency’s position, in other words, is that a FOIA record is defined—indeed, that the “record” comes into being—through the process of reading and interpreting a request and then searching for and analyzing agency documents to find those portions that contain responsive information.

As we note in our Cross-Motion (pages 25-28), this approach has several problems.  First, it has no basis in the statute.  Second, it conflicts with the rule that requesters may only seek access to records that are already in existence when the request is submitted.  Third, it means that the same, single document could be one record in response to one request, but ten records in response to another.  Finally, it conflicts with one of the venue provisions in FOIA’s judicial review section, rendering it a nullity.

CoA Institute instead proposed its own definition of a record (pages 22-25) that is based on the statute, harmonizes with existing FOIA statutory and case law, and promotes disclosure.  Our approach takes into account that agencies already have material containing information (whether documents, video files, electronic files, etc.) in their control before a request is submitted, that this material exists in a particular form and format, and that agencies must disclose such material as a unit whenever the informational content is responsive to a request (subject to FOIA’s nine exemptions, of course).  Thus, our “complete and proper definition of a ‘record’ under the FOIA is (1) any material containing information, (2) created or obtained by an agency, (3) within an agency’s control when a request is submitted, and (4) in its full native form and format as maintained by an agency at the time of a request, ‘i.e., as a unit’” (page 25).

We also urged the court to continue the practice of denying agencies any deference to their interpretations of FOIA’s statutory terms (pages 19-21).

Click here for the complete filing.

Click here for There is No Tenth Exemption, a previous post in this series.

Update: On October 10, 2017, the district court found the case was moot and did not reach the underlying issues discussed in this post.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

 

[1] See Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).

[2] 830 F.3d 667 (D.C. Cir. 2016).

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02/3/2017

Sec. Vilsack followed ethics guidelines when negotiating his future employment

Under the Obama administration, we at Cause of Action Institute have not had many opportunities to applaud public officials for taking it upon themselves to adhere to applicable ethics standards.  This week, we learned that U.S. Department of Agriculture (“USDA”) Secretary Tom Vilsack appears to be an outlier for the administration.

On January 18, 2017, Cause of Action Institute submitted a Freedom of Information Act (“FOIA”) request to USDA after media reports indicated that Sec. Vilsack apparently began negotiating for private employment while still serving in government, triggering federal ethics laws.  Sec. Vilsack then retired from his government role a week before his term concluded.

The Stop Trading on Congressional Knowledge Act of 2012 (“STOCK Act”) states that Executive Branch employees who are required to file public financial reports may not directly negotiate for future employment unless the individual’s ethics office is notified in writing within three business days after negotiations begin.

According to un-redacted records provided to Cause of Action Institute on January 31, 2017, less than two weeks after our FOIA request, Secretary Vilsack appears to have alerted his agency’s ethics office and properly followed all ethics guidelines when he decided to pursue his next employment opportunity.

We wish the Secretary the best in his new role and hope USDA continues to provide timely responses to all future FOIA requests.

John Vecchione is acting president of Cause of Action Institute

 

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02/3/2017

CoA Institute Investigates EPA Employees Using Electronic Messaging Apps to Thwart Transparency

Washington D.C. – Cause of Action Institute (“CoA Institute”) has filed a Freedom of Information Act (“FOIA”) request after recent media reports identified a number of career EPA employees possibly using an encrypted electronic messaging app called “Signal” to communicate about work-related issues, including how to prevent political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.”

“It appears that some employees at the EPA may be using encrypted apps on their phones to avoid transparency laws in an effort to conceal their communications from internal and external oversight,” said CoA Assistant Vice President Henry Kerner. “Under the Federal Records Act, the EPA has a legal obligation to preserve all records made by employees working on official government business.  This obligation is all the more important if EPA employees are using personal cellular devices or private accounts for such purposes.  These messages must also be made available under the Freedom of Information Act.  Agency leadership, Congress, and the public have a right to know if federal employees are using encrypted electronic messages to evade transparency.”

It is unknown whether these employees discuss work related issues on Signal using their EPA-issued or personal devices. Under the Federal Records Act, the EPA has a legal obligation to preserve records evidencing employees working on government business, no matter the medium of their communication. CoA Institute is submitting this Freedom of Information Act request and notifying Acting Administrator McCabe of her obligation under the Federal Records Act to ensure that all work-related Signal messages are retained or retrieved by the EPA.

The full FOIA can be found here.

 

 

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