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07/7/2016

Did Federal Government Push Controversial Hawaii Gun Law?

Washington, DC – Cause of Action Institute (CoA Institute) today filed a Freedom of Information Act (FOIA) request to examine any potential involvement by the Department of Justice (DOJ) in preparing or advocating for Hawaii’s recently-passed law to restrict the exercise of constitutionally-protected gun rights.

CoA Institute President and CEO, and former federal judge, Alfred J. Lechner, Jr.: “While touted as an important public safety measure designed to encourage responsible gun ownership and assist law enforcement, in reality this legislation will place law-abiding American citizens into a database maintained by the federal government to monitor criminals. This measure has the potential to severely chill gun ownership in Hawaii and limit individuals from exercising their Second Amendment rights.”

On June 23, 2016, Hawaii Governor David Ige signed into law SB 2954, thereby authorizing “county police departments in Hawaii to enroll firearms applicants and individuals registering their firearms” into a federal database known as “Rap Back,” which is a centralized “criminal record monitoring service” maintained by the FBI.

The Hawaiian gun law is unprecedented.  It makes Hawaii the first state to submit information about its gun-owning citizens to the federal government. In light of current efforts by the Obama administration to create a national gun registry—which would be prohibited under current law —there is significant interest in examining the role, if any, played by the federal government in the development of this new law.

The full FOIA request is available HERE

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06/2/2016

Cause of Action Institute Petitions OMB to Update FOIA Fee Guide

Today, Cause of Action Institute filed a petition for rulemaking with the White House Office of Management and Budget (“OMB”), urging it to update its obsolete guidance document that federal agencies rely on when making FOIA fee determinations.  The petition seeks to implement Cause of Action Institute’s landmark legal win in Cause of Action v. Federal Trade Commission where the D.C. Circuit ruled OMB’s guidance conflicts with the FOIA statute.

Background

In 1986, Congress passed, and President Reagan signed into law, the Freedom of Information Reform Act of 1986.  Section 1803 of the Act directed OMB to provide a uniform schedule of fees for all federal agencies and guidelines for how to apply that schedule.  On March 28, 1987, OMB finalized those guidelines.  Although Congress has amended the FOIA several times since 1986, OMB has never updated the guidance.

The failure by OMB to update its guidelines has resulted in costly, time-consuming litigation between agencies and requestors.  For example, in 2011 and 2012, CoA Institute sent a series of FOIA requests to the Federal Trade Commission (“FTC”) requesting access to records, to be classified as a representative of the news media, and for a public interest fee waiver.  The FTC refused the CoA Institute requests for fee classification and waiver by relying on its outdated FOIA fee regulations, which in turn relied on the outdated OMB guidance.  After the district court refused to apply the statutory standard, CoA Institute appealed the case to the D.C. Circuit, which ruled that many of the regulatory and judicial standards that had built up over time were in conflict with the statute as amended by the Open Government Act of 2007.

Petition

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05/25/2016

IG Report on Clinton Email Consistent with CoA Complaint

Washington, DC – Cause of Action (CoA) Institute President and CEO and former Federal Judge Alfred J. Lechner, Jr. today released the following statement following the release of a State Department Office of Inspector General (IG) report that found Hillary Clinton failed to comply with the Federal Records Act during her tenure as Secretary of State. The report found that Mrs. Clinton has not provided all of her emails to the State Department, which contradicts previous statements before the courts.

CoA Institute President & CEO Alfred J. Lechner, Jr.: “News reports today that the Department of State Office of Inspector General has determined that former Secretary of State Hillary Clinton did not use the ‘appropriate method’ for preserving her emails support Cause of Action Institute’s work to hold the State Department accountable for its violations of the Federal Records Act. The Inspector General found that the emails Mrs. Clinton belatedly returned to the State Department are an ‘incomplete’ set. Cause of Action Institute will continue to seek to compel Secretary Kerry and the National Archives and Records Management Administration to perform their statutory duties to recover all of Mrs. Clinton’s email records.”

The report states:

“Secretary Clinton should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary. At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”

On July 8, 2015, Cause of Action Institute filed a complaint in federal court in Washington, DC to compel Secretary of State John Kerry and Archivist of the United States David Ferriero to initiate action through the Attorney General to recover all of the records Mrs. Clinton unlawfully alienated from the State Department.  The defendants in that suit argued the case was moot because the State Department received 55,000 pages of emails from Mrs. Clinton.  The district court agreed with defendants and dismissed the suit.  The case is currently on appeal in the U.S. Court of Appeals for the District of Columbia Circuit.

Today’s revelations support the position of Cause of Action Institute, as the State Department Office of Inspector General has concluded that not only did Mrs. Clinton fail to comply with the law, but that the State Department has not recovered all of the records.

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07/1/2015

TechDirt – Lawsuit Filed After Export-Import Bank Official Swears He ‘Accidentally’ Deleted All Of His Responsive Text Messages

Read the full story: Tech Dirt

Sure, Freedom of Information laws are great, but they have their downsides. For one thing, they clearly signal to agencies which records are being sought. It’s unavoidable. To answer a request, an agency needs to know what it’s looking for. Once the request is out in the open, efforts can begin in earnest to excise information anyone affected doesn’t want made public.   I’m not saying anyone did anything wrong, but it very definitely looks like someone did something deliberately wrong.  A top official at a controversial U.S. export finance agency deleted text messages sent within days of the 2014 midterm elections after a watchdog group filed an open records request for the messages, the agency admitted recently.

The watchdog group — Cause of Action — sought “text messages, Blackberry messenger chats and SMS messages sent or received by top officials during the period of days between November 2, 2014 and November 8, 2014.” These would be texts fired back and forth during the mid-term elections by officials of the controversial US Export-Import Bank, which was facing the reality of having its funding halted by House Republicans.   Cause of Action got most of what it sought… several months later. It filed the request on November 20, 2014 but didn’t receive a response until May 12, 2015. That response brought with it the following bad news:  [T]he messages for Scott P. Schloegel were accidently deleted on approximately January 1, 2015. Enclosed is signed declaration from Mr. Schloegel attesting to the deletion.

 

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06/25/2015

Daily Signal – Top Export-Import Bank Official Deletes Text Messages Sent During 2014 Midterm Elections

Read the full story: Daily Signal

A government watchdog has learned a top-ranking official at the Export-Import Bank deleted text messages sent during the 2014 midterm elections, sparking a lawsuit calling for the recovery of the records.  Cause of Action, a nonpartisan government accountability organization, submitted a Freedom of Information Act request to Ex-Im on Nov. 14, 2014, asking for text messages sent between top bank officials the week of the 2014 midterm elections, Nov. 2, 2014 to Nov. 8, 2014.  As a result of the FOIA request, the group learned that Scott Schloegel, Ex-Im’s chief of staff and senior vice president, deleted critical text messages during this time period.  When Ex-Im replied to Cause for Action’s FOIA request on May 12, 2015, six months later, they informed the group the messages were “accidentally deleted on approximately Jan. 1, 2015.” Additionally, Schloegel said in a signed declaration on March 27, 2015, that he “deleted, by mistake, the messages … on [his] phone for the period in question.”  “The fact that a top official at the Export-Import Bank deleted his text messages several weeks after our organization asked to see them raises serious questions,” Dan Epstein, Cause of Action’s executive director, said in a statement. “Furthermore, it’s puzzling that it took the bank another four months to let us know that this happened.”

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06/24/2015

Washington Free Beacon: Ex-Im Official Deleted Text Messages After FOIA Request

Read the full story: Washington Free Beacon

A top official at a controversial U.S. export finance agency deleted text messages sent within days of the 2014 midterm elections after a watchdog group filed an open records request for the messages, the agency admitted recently.  The watchdog group, Cause of Action, said the deletion amounts to “unlawful destruction of federal records” in a legal complaint filed on Wednesday.  The group filed a Freedom of Information Act request on Nov. 14 asking for text messages sent or received by top officials at the U.S. Export-Import Bank from Nov. 2 to Nov. 8.  Ex-Im responded months later, saying in a May reply that messages from Scott Schloegel, the chief of staff and senior vice president, “were accidentally deleted on approximately January 1, 2015,” more than a month after Cause of Action filed its FOIA request….

Cause of Action is now filing a legal complaint “to ask the Justice Department and/or Congress to initiate action to recover the deleted messages,” it announced on Wednesday.  The complaint alleges that Ex-Im violated the Federal Records Act—by its own admission—by failing to preserve official intra-office communications.  “The fact that a top official at the Export-Import Bank deleted his text messages several weeks after our organization asked to see them raises serious questions,” Dan Epstein, Cause of Action’s executive director, said in a statement. “Furthermore, it’s puzzling that it took the Bank another four months to let us know that this happened.”  Cause of Action’s Ex-Im FOIA request was the latest in what the group’s complaint describes as “an investigation into whether federal agencies comply with their obligation to preserve text messages for a period of time.”

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