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11/1/2016

CoA Institute Sues Treasury for “Sensitive” Records Concealed from Public Disclosure

Washington D.C. – Cause of Action Institute (CoA Institute) today filed a lawsuit to compel production of records from the U.S. Department of Treasury dealing with the agency’s “sensitive review” policy. These policies often delay open records requests through the Freedom of Information Act (FOIA), particularly when such productions contain politically sensitive or potentially embarrassing information, directly contrary to congressional policy.

To better understand the Treasury Department’s sensitive review procedures, who is involved, and how it is used, CoA Institute submitted a FOIA request to the agency in June 2013 seeking records relating to its FOIA process.

CoA Institute Vice President John Vecchione: “It’s ironic that our FOIA to learn more about sensitive review has itself been held up because of sensitive review. Even after the Department of Treasury agreed through mediation last year to start producing responsive records, it has failed to produce a single document. Agencies have utilized opaque sensitive review processes to delay records requests, adding months and even years to an agency’s response time. The public has a right to information about how agencies obstruct and delay open records requests that may reveal politically embarrassing information.”

According to information obtained from various agency inspectors general, similar sensitive review policies have been used at the Department of Homeland Security, Department of Interior, Department of Commerce, Department of Agriculture, Department of Health and Human Services, Department of Housing and Urban Development, and the Department of Veterans Affairs. At some agencies, sensitive review is applied not only to information the agency’s management considers sensitive, but also to any FOIA request from a representative of the news media, like CoA Institute, or where the request is likely to attract media or political attention.

Sensitive review often is conducted by political appointees—and sometimes by the Office of the White House Counsel—rather than by career FOIA professionals. These appointees sometimes required staff to find and provide information about requesters that FOIA does not require requestors to provide, such as where the requestors live, who they work for, and whether their employer is politically active or part of the news media.

The full complaint can be accessed HERE
All exhibits can be accessed HERE

 

 

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09/7/2016

Growing Concern over Controversial Mortgage Settlements

Congress to Consider a Bill to Halt Government Slush Funds

 

On July 13, 2016, Cause of Action (CoA) Institute filed a complaint in the U.S District Court for the District of Columbia against the United States Housing and Urban Development (HUD). The lawsuit seeks records that HUD has failed to produce in response to a Freedom of Information Act (FOIA) request regarding HUD’s role in the federal government multi-million dollar settlements with three banks over their allegedly faulty mortgage practices.  As CoA Institute continues to investigate and litigate, others are paying attention to these troubling settlements as well.

Last week, prominent Washington Post columnist George Will penned a column calling out the government for using the bank settlements as a slush fund.  Will notes that the government:

allows banks to meet some of their settlement obligations by directing “donations” to various nongovernmental advocacy organizations that serve Democratic constituencies and objectives — organizations that were neither parties to the case nor victims of the banks’ behaviors. These donations are from money owed to the government, money that otherwise would go to the Treasury, money the disposition of which is properly Congress’s responsibility.

And in the Wall Street Journal, Andy Koenig, senior policy adviser at Freedom Partners Chamber of Commerce, similarly focuses on one of the key facets of these settlements: financial incentives for the banks to fund third party groups:

Most of the deals give double credit or more against the settlement amount for every dollar in “donations.” Bank of America’s donation list—the only bank to disclose exactly where it sends its money—shows how this benefits liberal groups. The bank has so far given at least $1.15 million to the National Urban League, which counts as if it were $2.6 million against the bank’s settlement. Similarly, $1.5 million to La Raza takes $3.5 million off the total amount of “consumer relief” owed by the bank. There are scores of other examples.

To address the growing chorus of concerns over these controversial settlements, the House of Representatives today will consider the “Stop Settlement Slush Funds Act of 2016,” a bill introduced by Rep. Bob Goodlatte (R-Va.)  to prevent any such future settlements. In other words, the bill would prohibit the government from creating a slush fund to direct settlement payments to favored (or any other) outside recipients.  The U.S. House of Representatives has scheduled a vote on this bill for September 7, 2016.

**UPDATE** The House passed the “Stop Settlement Slush Funds Act of 2016” on September 7 by a vote of 241-174.

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08/17/2016

There is No Tenth Exemption

The Freedom of Information Act (“FOIA”) provides access to records, not information.  This may seem like a minor distinction but in the FOIA world it can mean the difference between uncovering government wrongdoing and having your request rejected because it was poorly thought out.  The distinction also means that when agencies are conducting a search for responsive records they should not be able to withhold portions of information contained within responsive records, unless that information falls within one of the nine statutory exemptions.  There is no “tenth exemption” that allows agencies to withhold information within responsive records just because that information is non-responsive to the request.

An examination of the statute’s terms confirms this analysis.  The statutory section that empowers requesters to get documents from the government speaks in terms of “records”  not “information.”  FOIA requires “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.”[1]  The agency must search, “manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.”[2]

The statutory language that allows requesters to access “records” is limited by agencies’ ability to withhold portions of those records if one of the nine statutory exemptions applies.[3]  However, the agency may only redact exempt information and any “reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”[4]  FOIA “does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.”[5]

Taken together, these provisions mean that requesters can access agency records and agencies may only withhold portions of those records if they fall within one of the nine statutory exemptions.  They are not authorized to withhold any other information.

Agencies Attempt to Invoke a Tenth Exemption

It is common practice for agencies to only produce the portions of records that contain responsive information and assert that the remaining portions of the record in which that information is contained is “non-responsive.”  For example, Cause of Action Institute sent a FOIA request to the William J. Clinton Presidential Library seeking records related to efforts by Hillary Clinton store her records at the Library.  In response, the Library sent Cause of Action Institute a quarterly report that the Library filed with the National Archives and Records Administration.  However, the Library withheld almost the entire 18-page report and released only small portions it deemed responsive to the request.  As seen below, the Library used “non-responsive” as a “tenth exemption” to deny access to the full record:

Unfortunately, this practice is all too common.

Recent D.C. Circuit Decision Holds Agency Use of Tenth Exemption Improper

In July 2016, the D.C. Circuit decided American Immigration Lawyers Association v. Executive Office for Immigration Review and held there is “no statutory basis for redacting ostensibly non-responsive information from a record deemed responsive. . . .  [O]nce the government concludes that a particular record is responsive to a disclosure request, the sole basis on which it may withhold particular information within that record is if the information falls within one of the statutory exemptions[.]”[6]  This was an issue of first impression for the Circuit, which provides the leading judicial opinions on FOIA.  Many district courts have permitted this agency behavior.[7]

In this case, the Executive Office for Immigration Review argued that “it was under no obligation . . . to release information that concerned matters unrelated to [the] FOIA request because the information was outside the scope of the request.”[8]  The D.C. Circuit rejected this argument, reasoning that the “sole FOIA provision enabling the government to withhold responsive records is section 552(b), which sets forth the nine statutory exemptions.”[9]  “The statute does not provide for withholding responsive but non-exempt records or for redacting nonexempt information within responsive records.”[10]  “[O]nce an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.”[11]

D.C. Circuit Sets up Next Fight over Definition of “Record”

In deciding American Immigration Lawyers Association, the D.C. Circuit realized that if the statute requires the disclosure of a record as a unit, the amount of disclosure is going to “depend[] on how one conceives of a ‘record.’”[12]  The court did not directly reach that question because it used the agency’s determination that the documents containing the non-responsive redactions were the relevant “records.”  However, in so ruling, the court afforded a troubling amount of deference to agencies.

The Court summarized that unlike the Privacy Act, the Presidential Records Act, and the Federal Records Act, FOIA provides no statutory definition for the term “records.”  The court then looked to the agencies to provide the definition, writing: “Under FOIA, agencies instead in effect define a ‘record’ when they undertake the process of identifying records that are responsive to a request.”[13]  It also afforded some authoritative deference to the Department of Justice Office of Information Policy guidance, which “sets forth a number of considerations for agencies to take into account when determining whether it is appropriate to divide [a responsive] document into discrete ‘records.’”[14]  The court found “the dispositive point is that, once an agency itself identifies a particular document or collection of material—such as a chain of emails—as a responsive ‘record,’ the only information the agency may redact from that record is that falling within one of the statutory exemptions.”[15]

There is no legal basis for a court to afford deference to an agency interpretation of a term in a statute that is not organic to that agency.  Arguably, it is inappropriate for a court to ever provide deference to agency interpretations.[16]  However, the D.C. Circuit has held that because FOIA is not administered by one agency but instead applies across the Executive Branch, “[o]ne agency’s interpretation of FOIA is . . . no more deserving of judicial respect than the interpretation of any other agency.”[17]  Further, because statute provides that judicial review in FOIA is under a de novo standard of review, courts should not be permitting agencies to decide what counts as a “record” when requiring them to release a record as a single unit.[18]

As courts, agencies, and requesters begin to internalize the implications of American Immigration Lawyers Association, the definition of a “record” is increasingly going to determine how much information is released to the public.  Courts should refrain from deferring to agency attempts, should they arise, to segment records into increasingly smaller sizes.

September 21, 2016 Update:  Our prediction that the D.C. Circuit decision in American Immigration Lawyers Association would set up a new fight with federal agencies over the definition of a “record” has come to pass.  CoA Institute sent a FOIA request to the Department of Justice – Tax Division (“DOJ-Tax”) seeking access to a record the agency had previously produced with a series of redactions marked as non-responsive.  Here is the first page of that record as originally produced.

nr81

Instead of removing the improper redactions of information and providing the record in full, as per the holding in American Immigration Lawyers Association, DOJ-Tax broke the larger record into a series of smaller records, even so far as to claim that an email header was a different record than the body of that same email.  The agency then withheld all but one of those “records” as non-responsive.

prod1

Compare the full original here and the full re-produced record here.

No justification was given as to why an email chain, previously provided as a single record, had now been broken up and categorized into distinct records, why an email header containing the sender, recipient, date, and subject of the email, was now considered a record separate from the body of that same email, or why these “multiple” records, all but one of which were redacted in full because they were deemed non-responsive, were provided in response to our FOIA request.

As suggested in the original blog post, the next fight over government transparency will be the increasingly smaller segmentation of records as agencies seek to circumvent the FOIA’s presumption of openness.  Requesters must be vigilant and courts should not defer to agency interpretations of the statutory term “record.”

November 8, 2016 Update:  Cause of Action Institute has filed suit against the Department of Justice on this issue.  The complaint is available here and the exhibits here.

February 8, 2017 Update:  Cause of Action Institute has filed its Cross-Motion for Summary Judgment in this case.  That filing is discussed in Defining a Record Under FOIA.

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

 

[1] 5 U.S.C. § 552(a)(3)(A) (emphasis added).

[2] Id. § 552(a)(3)(D) (emphasis added).

[3] Id. § 552(b)(1)–(9).

[4] Id. § 552(b) (text following (b)(9)).

[5] Id. § 552(d).

[6] Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, No. 15-5201, 2016 WL 4056405, at *1 (D.C. Cir. July 29, 2016), slip op. available at http://coainst.org/2aZCRgT.

[7] See, e.g., Freedom Watch, Inc. v. Nat’l Sec. Agency, 49 F. Supp. 3d 1, 7 (D.D.C. 2014) (“The practice of redacting non-responsive materials from documents produced in response to FOIA requests has been approved by courts in this Circuit.”) (collecting cases).

[8] Am. Immigration Lawyers Ass’n, 2016 WL 4056405, at *7.

[9] Id.

[10] Id. at 8.

[11] Id.

[12] Id.

[13] Id. at 9.

[14] Id.

[15] Id.

[16] See Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It and Should be Overruled, 42 Conn. L. Rev. 779 (2010).

[17] Tax Analysts v. IRS, 117 F.3d 607, 613 (D.C. Cir. 1997) (collecting cases).

[18] 5 U.S.C. § 552(a)(4)(B); Richard J. Pierce, What do the Studies of Judicial Review of Agency Actions Mean?, 63 Admin. L. Rev. 77, 83 (2011) (“[D]e novo review refers to an approach to judicial review in which the court does not confer any deference on the agency[.]”); Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 Wm. & Mary L. Rev. 679, 688 (2002) (“[U]nder de novo review, there should be no deference at all.”).

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08/11/2016

CIA too busy for transparency

Central Intelligence Agency (“CIA”) records recently disclosed to Cause of Action Institute indicate that the agency’s watchdog refused to honor a congressional request for an inquiry into politicized Freedom of Information Act (“FOIA”) processes because its staff was “fully engaged in other matters.”  Just as alarming, the CIA Inspector General only responded to Congress nearly two years after the request for an inquiry was sent.  Cause of Action Institute obtained these documents after it filed a lawsuit to compel production of records responsive to a FOIA request that had been pending at CIA for three years.   

In August 2010, Senator Chuck Grassley and Representative Darrell Issa wrote to the Inspectors General of twenty-nine (29) different agencies—including the CIA—to request investigations into the role of political appointees in responding to FOIA requests.  Sen. Grassley and Rep. Issa were concerned that non-career officials were intentionally delaying responses and inappropriately influencing decisions to withhold information from the public.  The newly disclosed records confirm that the CIA waited two years to tell Congress that it was simply too busy to conduct an inquiry—despite the fact that the other twenty-eight agencies contacted by Congress carried out the requested audit and released their special reports proactively or under FOIA.

The Obama administration has a poor track record on transparency issues.  Agencies have unfairly politicized FOIA by adopting “sensitive review” procedures that permit political appointees, senior officials, and public affairs staff to participate in processing document requests.  As reported by the House Oversight Committee, such politicization led to retaliation by leadership against a disclosure officer at the Department of Homeland Security.  Cause of Action Institute uncovered politicized FOIA processes at the Department of Housing and Urban Development.  And other sources have detailed “sensitive review” at the Environmental Protection Agency, the State Department, and the Treasury.

But politicization goes beyond internal agency processes.  Under a previously non-public 2009 White House memorandum, agencies are instructed to consult with the Office of the White House Counsel—the president’s lawyer—before producing any documents that involve so-called “White House equities.”  The result of the memo is the unlawful expansion of White House control of agency FOIA processes and usurped agency responsibility for finalizing determinations.

In May, CoA Institute filed a lawsuit against eleven (11) agencies and the White House to end the administration’s practice of delaying responses to FOIA requests that are considered “politically sensitive” or embarrassing.”  Read more HERE.

Read the CIA’s letter to Sen. Grassley and Rep. Issa HERE.
Read CoA Institute’s FOIA Complaint against the CIA HERE.

 

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08/10/2016

Release to One, Release to All

The Department of Justice Office of Information Policy recently announced that it is asking Executive Branch agencies to begin implementing a new policy under the Freedom of Information Act known as “release to one, release to all.”  Under this policy, when an agency releases a FOIA production to the requester, it will also place the production on its website for the public to access.  The federal government processed more than 700,000 FOIA requests last year, which means this policy will bring a lot more government information to the public.

Today, Cause of Action Institute submitted the comment below to the White House Office of Management and Budget and the DOJ Office of Information Policy urging it to consider several issues as it finalizes this policy.


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08/10/2016

CoA Institute Investigates $400 Million Cash Payment to Iran, Hidden “Side Agreement” During Nuclear Negotiations

Washington, DC – Today, Cause of Action Institute (CoA Institute) sent Freedom of Information Act requests to the U.S. Department of State and U.S. Department of Treasury seeking information surrounding the widely reported $400 million cash payment the Obama administration sent to Iran in January.  Recent revelations about this previously undisclosed cash payment has called into question whether the State Department and other executive branch agencies engage in secret, potentially unlawful negotiations with foreign governments, designed to evade Congressional and public notice and oversight.

Cause of Action President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Since 1984, Iran has been listed as a state sponsor of terror; it has been subject to various financial sanctions.  Serious concerns about money laundering and terrorist financing in Iran persist. Details regarding this payment and the supposedly coincidental timing of the hostage release have been hidden from the public and Congress.”

Administration officials, including State spokesmen John Kirby, denied any connection between this payment and the release of American hostages, asserting that the payment was part of a separate settlement agreement, despite reports that the Iranians considered the cash payments “ransom.”

Because any transaction with Iran in U.S. dollars violates U.S. sanctions provisions, the $400 million payment was reportedly made entirely with foreign currency and flown into Iran on wooden pallets onboard an unmarked cargo plane. It has also come to light that Department of Justice officials apparently objected to the payment on legal and policy grounds, but were overruled by the State Department.

In a related but separate matter, CoA Institute is also investigating allegations of a secret “side agreement” the State Department apparently negotiated with Iran last year that would ease restrictions on its nuclear program. In July 2015, the United States, along with six other countries, finalized a controversial agreement involving Iran’s nuclear program.  Under the agreement, Iran was supposedly barred for a 15-year period from engaging in nuclear research and development. Despite widespread criticism from Congress, the agreement went into effect beginning in October 2015.

However, within the last few weeks, contents of a secretive “side agreement” have been revealed.  According to the Associated Press, this side agreement allows Iran to start replacing its stockpile of uranium centrifuges with thousands of more sophisticated models beginning in 2027 instead of 2031.  Such a process could cut the time needed to develop weapons-grade uranium to six months or less. If confirmed, this side agreement would significantly reduce the timeframe for Iran to re-build its nuclear capabilities. Despite such serious consequences, this agreement was hidden from the public and from members of Congress.

In order to further examine these issues, CoA Institute today requested records and internal agency communications surrounding these issues.

The letter to the Department of Treasury can be found here.
The letter to the Department of State can be found here.

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07/14/2016

CoA Institute Investigates Role of DHS, Shooter’s Motives in Dallas Shooting

Washington, DC – Cause of Action Institute (CoA Institute) today filed a Freedom of Information Act (FOIA) request to investigate the involvement of the Department of Homeland Security (DHS) in investigating and responding to the recent shooting of Dallas police officers. In light of seemingly contradictory statements by Secretary Johnson and President Obama regarding the shooter’s motives, CoA Institute seeks to better understand if information is being withheld from the American public.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “Statements about the shootings by President Obama and DHS Secretary Jeh Johnson raise questions about the DHS role in responding to the Dallas shooting and whether there is information about the shooter being withheld from the public.  Because Secretary Johnson appears to be the first public official to confirm that only one shooter existed, it raises questions as to what extent DHS was involved during the aftermath of the shooting and why local authorities were not first in alerting the public. Additionally, discrepancies between statements by President Obama and the Dallas police chief raise concerns that there may be additional information about the motives of the gunman that are being withheld from the public by the Obama administration.”

Background:

On July 7, 2016, a gunman killed five police officers in Dallas, Texas.  On July 8, Chief David Brown held a press conference and stated that multiple suspects may be involved. Three suspects were ultimately taken into custody. Later the same day, Secretary Johnson contradicted initial reports by announcing that the gunman apparently acted alone. According to media reports, Secretary Johnson was the first public official to announce that the gunman was a sole actor.

Additionally, at a press conference on July 9, President Obama said that it is “very hard to untangle the motives” of the Dallas shooter.   He further stated, “I’ll leave that to psychologists and people who study these kinds of incidents . . . I think the danger is that we somehow suggest the act of troubled individuals speaks to some larger political statement across the country.”   President Obama’s statement that the motives of the gunman appear uncertain directly contradicts Dallas Police Chief David Brown’s description of the incident.  According to Chief Brown, the gunman stated that he “was upset about the recent police shootings…and he wanted to kill white people, especially white officers.”

CoA Institute requests documents and communications to better understand the role of DHS in the aftermath of the Dallas Shooting. The full FOIA request is available HERE.

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